Grewal v The Commissioner of Police of the Metropolis

In a discrimination claim, the burden of proof does not shift merely because the claimant establishes a difference in race and a difference in treatment. Those facts indicate only a possibility of discrimination. The claimant must prove primary facts from which a reasonable tribunal could properly conclude, in the absence of an adequate explanation, that discrimination occurred. The tribunal must identify the acts relied upon with sufficient particularity before seeking an explanation from the respondent.

An Employment Tribunal must decide the complaints actually made. It may adopt a different juridical basis where the factual matters have been fully canvassed and the parties have had an opportunity to address that basis. It should not introduce a new cause of action involving uninvestigated factual elements and potential prejudice.

The claimant, a police constable in training, brought numerous complaints of race and religious discrimination, harassment and victimisation arising from her treatment during training. The Employment Tribunal rejected most allegations but upheld a direct race discrimination complaint concerning alleged negative feedback and excessive supervision during officer safety training. It also found victimisation concerning comments made at a meeting on 18 March 2008.

On review, the Tribunal deleted the victimisation finding because victimisation had not been pleaded and the necessary issue of the alleged victimiser’s knowledge had not been investigated. The Commissioner appealed against the race discrimination finding, and the claimant appealed against the review decision. The central issues were whether the burden of proof had shifted and whether the review decision was permissible.

1. Commissioner’s appeal allowed. The Employment Tribunal’s reasoning was not Meek-compliant. It did not identify what the alleged negative feedback consisted of or what acts constituted excessive supervision. Without clear primary factual findings, the respondent could not know what conduct he was required to explain.
2. Under section 54A of the Race Relations Act 1976, the claimant had to prove facts from which a reasonable tribunal could properly conclude, from all the evidence and in the absence of an adequate explanation, that discrimination had occurred. A difference in race and a difference in treatment, without more, were insufficient. The possibility that the claimant received more supervision because trainers considered her officer safety training weaker did not itself provide the necessary additional material.
3. The Tribunal therefore erred in law by shifting the burden of proof. Since the claimant had not discharged the initial burden, the race discrimination claim should have been dismissed.
4. Claimant’s appeal dismissed. An Employment Tribunal is limited to determining the complaints made to it. Southern Cross Healthcare v Perkins permits a different juridical basis where the factual complaint has been fully canvassed and the parties have had an opportunity to address the proposed basis. That qualification was not satisfied here. Victimisation required consideration of whether PC Rigby knew of the protected act, but that issue had not been investigated and the respondent had no opportunity to answer it. The Review Tribunal was therefore right to delete the victimisation finding.

• Employment Appeal Tribunal: The Commissioner’s appeal against the Employment Tribunal’s race discrimination finding was allowed and the claimant’s appeal against the review decision was dismissed.
• Employment Tribunal: The Tribunal upheld one direct race discrimination complaint and made a victimisation finding. On review, the victimisation finding was deleted.