Tuesday 5th December 2023
PUBLISHED ARTICLES
Article 17
Shifting the Burden of Proof in Discrimination Claims
Where an employee claims unlawful racial discrimination it is not enough to
show that conduct is unreasonable or unfair for the burden of proof to be
shifted to the employer to demonstrate that there was no racially motivated
reason for the action complained of. For the burden of proof to shift it must
be shown that there was some racial motivation.
In the case of, Commisioner of Police of The Metropolis & Anor v Osinaike
EAT on 22nd February 2010On 3rd June 2009 the London South employment tribunal
dismissed most of the harassment claims of Ms Osinaike claims save one. The
tribunal found in her favour that her complaint of racial harassment was well
founded in that she was told in June 2007 by the Senior Management Team that
she needed to see a psychiatrist. The tribunal concluded that had Ms Osinaike
been white, the Police "would have readily understood the difficulties
of her continued placement within Southwark and addressed those matters as
opposed to seeing her as irrational and in need of psychiatric intervention".
At the EAT The Respondents were successful with their appeal:
The EAT said that simply showing that conduct is unreasonable or unfair
is not, by itself, enough to trigger the transfer of the burden of proof.
There was no evidence to suggest any racial element in the actions taken by
the Police, which would be a pre-requisite for transferring the burden of
proof to make the Police liable unless they showed a non-discriminatory explanation
for what happened. In this case it was "notable that the Tribunal nowhere
considered the reasons why the [police] acted as they did. The only finding
made was the acceptance of [the police occupational health adviser's] view
that this was an example of an occasion on which the [Police] 'found it more
convenient to medicalise the situation and refer the Claimant to Occupational
Health'. This on the face of it has nothing to do with race."
In short, if one is considering an appeal the findings of fact made by the
ET must point to a discriminatory motive before the burden is shifted to the
employer under the Igen V Wong principles.
Charles Price is a barrister at no5 Chambers
www.charlesprice.net
