Commisioner of Police of The Metropolis & Anor v Osinaike

In a racial harassment claim, unreasonable or unfair treatment does not, without more, shift the burden of proof. The claimant must establish facts from which the tribunal could properly conclude that the treatment was on racial grounds. A difference in race between the claimant and decision-makers is insufficient by itself. Other relied-on matters must have a racial or cultural connection to the treatment. A tribunal must identify the evidential basis for any inference, including any comparison with a white hypothetical or actual comparator.

The claimant, a dedicated detention officer employed by the Metropolitan Police, succeeded before the London South Employment Tribunal on one allegation of racial harassment. The tribunal found that management had conveyed, through an occupational health adviser, that she needed to see a psychiatrist. It concluded that the burden of proof had shifted and that the employers had not shown an absence of a racial reason.

The employers appealed to the Employment Appeal Tribunal. The central issue was whether the primary facts permitted an inference that the treatment was on grounds of race under section 3A of the Race Relations Act 1976.

1. Appeal allowed. The claim of racial harassment concerning Allegation 11 was dismissed.
2. The tribunal was entitled to find that telling the claimant that management believed she needed to see a psychiatrist was unwanted conduct which had the effect of violating her dignity. An employer may perform harassment through an employee or intermediary who conveys the relevant message.
3. The tribunal erred on the racial-grounds requirement. A difference in race cannot by itself support an inference of discrimination. Unreasonable or unfair treatment is also insufficient unless accompanied by indications relating to the prohibited ground.
4. The matters relied on by the tribunal, including failure to anticipate the claimant’s reaction, an inaccurate occupational-health referral, persistence in seeking psychiatric intervention and failure to appreciate her personal circumstances, had no apparent racial connotation.
5. If the tribunal intended to rely on cultural differences or a white comparator, it had to identify the relevant facts and evidential basis. It had also to examine why the employers acted as they did. Poor management and sympathy for the claimant’s difficult circumstances did not establish that the treatment would have differed had she been white.
6. The burden of proof therefore did not pass to the employers. The remaining grounds of appeal did not require determination.

• Employment Appeal Tribunal: Allowed the employers’ appeal against the London South Employment Tribunal’s reserved judgment promulgated on 3 June 2009 and dismissed the racial-harassment claim concerning Allegation 11.
• London South Employment Tribunal: Found Allegation 11 well founded and held that the claimant had been told on 22 June 2007 that she needed to see a psychiatrist.