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In the Metropolitan Police Authority v Osinaike, the EAT granted the appeal by the Police against a finding of the London South Employment Tribunal that it had racially harassed Ms Osinaike.
Ms Osinaike was a Designated Detention Officer at Southwark Police Station. She was asked by HR and Occupational Health to see a psychiatrist and claimed that this was harassment on the grounds of her race. She succeeded.
On appeal, the EAT held that there was no basis upon which the Tribunal could have found that the act was done on the grounds of race. The Tribunal had wrongly determined that there was conduct from which it could conclude that Ms Osinaike would have been treated differently if she were white, and that the Respondent had not discharged the burden of disproving harassment on the grounds of race.
The EAT dismissed the claim as there was no basis upon which the Tribunal could have found that the onus of proof had passed to the Metropolitan Police. In order to make a finding that a person of a different race would have been treated differently because the employer had misunderstood the cultural differences between the employee and a white person, a Tribunal must set out the evidence which allows it to come to that conclusion. Furthermore, simply showing that an employer’s conduct is unreasonable or unfair is not enough to trigger the transfer of the burden of proof to the employer, unless it is combined with other indications of racial motivation.
Karen Minto represented the Metropolitan Police.
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