The Commissioner of Police of the Metropolis v Grewal

In discrimination proceedings, a claimant must prove facts from which a reasonable tribunal could properly conclude, in the absence of an adequate explanation, that discrimination occurred. A difference in race and a difference in treatment, without more, establish only a possibility of discrimination and do not shift the burden of proof. An Employment Tribunal must identify the primary facts, including the conduct said to constitute less favourable treatment, before requiring an explanation. It may adopt a different juridical basis for facts fully canvassed only where the parties have had an opportunity to address that basis and no prejudice results.

The claimant, an Indian Sikh police recruit, brought numerous complaints of race and religious discrimination, harassment and victimisation arising from her training. The Employment Tribunal rejected all but one direct race discrimination complaint, finding that she had received 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 of a protected act had not been investigated. The Commissioner appealed against the race discrimination finding. The claimant appealed against the review decision. The central issues were whether the Tribunal had given adequate reasons, whether the burden of proof had shifted, and whether it could determine the unpleaded victimisation complaint.

1. Commissioner’s appeal allowed. The Employment Tribunal’s judgment was not Meek-compliant. It did not identify with sufficient particularity the negative feedback, the acts said to constitute excessive supervision, or the primary facts supporting the inference of discrimination. In discrimination cases, clear findings of primary fact are especially important because the drawing of inferences is central.
2. Under section 54A of the Race Relations Act 1976, the claimant must prove facts from which a reasonable tribunal could properly conclude, from all the evidence, that discrimination occurred in the absence of an adequate explanation. The burden does not shift merely because the claimant establishes a difference in race and a difference in treatment. Those facts alone indicate only a possibility of discrimination. Here, the greater feedback and supervision could reasonably be explained by the trainers’ view that the claimant’s officer safety training was markedly weaker. There was no identified “something more” capable of shifting the burden.
3. The Tribunal therefore erred in law. The claimant had not discharged the initial burden, and her race discrimination claim should have been dismissed.
4. Claimant’s appeal dismissed. An Employment Tribunal is limited to the complaints made to it. It may adopt a different juridical basis for facts fully canvassed where the parties have had an opportunity to address the proposed basis. That condition was not satisfied here. Victimisation had never been pleaded, the issue of the alleged victimiser’s knowledge of the protected act had not been investigated, and the respondent had no opportunity to address either the factual or legal case. The review decision deleting the victimisation finding was therefore correct.

• Employment Tribunal: dismissed most complaints but upheld a direct race discrimination complaint concerning negative feedback and excessive supervision, and a victimisation complaint concerning comments made on 18 March 2008.
• Employment Tribunal on review: deleted the victimisation finding because the complaint had not been pleaded and the relevant evidential issues had not been canvassed.
• Employment Appeal Tribunal: allowed the Commissioner’s appeal, dismissed the claimant’s appeal, and dismissed the race discrimination claim.