The Equality Act 2010 389Burden of proof under the Act
Section 136 provides that a claimant who alleges discrimination, harassment of victimisa-
tion under the Act must initially prove his or her case. Once the claimant has proved, in the
absence of any other explanation, that a breach of the Act occurred, the burden of proof then
shifts on to the employer to show that there was no breach of the Act.
Public sector equality duty
Section 149(1) requires public authorities, in the exercise of their functions, to have due
regard to the need to:
(a) eliminate discrimination, harassment, victimisation and any other conduct that is
prohibited by or under the Act;
(b) advance equality of opportunity between persons who share a relevant protected char-
acteristic and persons who do not share it; and
(c) foster good relations between persons who share a relevant protected characteristic and
persons who do not share it.
When a major public authority, such as a local authority, makes a decision of a strategic
nature about how to exercise its functions it must have due regard to trying to exercise them
in such a way that is designed to reduce the inequalities which result from socio-economic
disadvantage. This might involve matters such as publicising access to health or educa-
tional programmes more widely in disadvantaged areas.
Positive action
Section 158 allows an employer to discriminate in favour of people who are disadvantaged
on account of having a protected characteristic. So particular disadvantaged groups could
be targeted for extra training or education. Any such action must be a proportionate means
of achieving a positive aim.
Discrimination against part-time workers
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 outlaw
discrimination against part-time workers. However, this is the case only if the part-time
worker is employed under the ‘same type of contract’ as a full-time comparator, and if
the work done is the ‘same or broadly similar’. The House of Lords held in Mathews and
othersv Kent and Medway Towns Fire Authority (2006)that part-time fire-fighters were
entitled to equal treatment as regards full-time fire-fighters. This was because the work
which they did was broadly similar to that done by full-time fire-fighters, and differences
in treatment could not be justified on objective grounds. The correct approach under the
Regulations is, first, to establish whether the two groups were employed on the same type
of contract, and then to concentrate on similarities between the work done by both groups.
It did not matter that the full-timers had additional duties unless these additional duties
were doing the more important work. The approach is not the same as the one used under
the Equal Pay Act 1970 because it is inevitable that part-time work is in some ways dif-
ferent from full-time work.
Regulation 5(1) provides that:
A part-time worker has the right not to be treated by his employer less favourably than the
employer treats a full-time worker –