Commissioner Of Police Of The Metropolis v Nonyelu

Direct race discrimination requires less favourable treatment on racial grounds. A policy which reduces overtime opportunities across racial groups does not establish less favourable treatment where the claimant and the appropriate white comparator suffer the same detriment. The failure to complete an Equality Impact Assessment form, and the introduction of the staffing policy without that form, do not themselves constitute a racial detriment. The burden of proof under the Igen principles does not pass to the respondent without material detriment and facts capable of supporting an inference of discrimination.

The claimant, a black Security Officer Manager employed by the Metropolitan Police, complained of direct and indirect race discrimination after a minimum staffing policy reduced overtime opportunities. The London (Central) Employment Tribunal dismissed the other claims but upheld the direct discrimination complaint insofar as the respondents had failed to undertake an Equality Impact Assessment and had introduced the policy in that manner.

The respondents appealed. The central issue was whether those matters amounted to less favourable treatment or a detriment when the policy operated across the Security Officer Manager group and affected the claimant and a hypothetical white comparator alike.

1. Appeal allowed. The finding of direct race discrimination was set aside and all claims were dismissed.
2. Under sections 1(1)(a) and 4(2)(b) and (c) of the Race Relations Act 1976, the claimant had to show less favourable treatment on racial grounds. The Tribunal’s finding that overtime opportunities were reduced across the relevant group did not establish such treatment. The claimant was not materially disadvantaged compared with the hypothetical white Security Officer Manager or, on the evidence, Mr Cameron, a white Security Officer Manager in the pool team.
3. The failure to complete the Equality Impact Assessment form could not, by itself, amount to a detriment. Nor could the introduction of the minimum staffing policy, without more, constitute unlawful racial discrimination. The Tribunal had wrongly elevated those matters into discrimination despite finding that the policy affected black and white staff across the group.
4. Because there was no material detriment, and no less favourable treatment on racial grounds, the burden of proof under the Igen principles did not pass to the respondents.
5. The Employment Appeal Tribunal declined to entertain an attempt to rework the Tribunal’s factual finding about overtime flexibility in the absence of a cross-appeal or additional grounds. It also rejected the submission that the Tribunal’s reasoning was non-Meek compliant.
6. The Equality Impact Assessment policy applied equally to all communities. A policy confined to ethnic minority officers would itself raise unlawful positive-discrimination concerns.

• Employment Appeal Tribunal: Allowed the respondents’ appeal against the London (Central) Employment Tribunal’s judgment promulgated on 19 October 2009. The upheld finding of direct race discrimination was set aside and all claims were dismissed.