Appeal No. UKEAT/0373/09/SM 

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 January 2010
Judgment handed down on 22 February 2010

Before
HIS HONOUR JUDGE REID QC
MR D J JENKINS OBE
MR J R RIVERS CBE

1) THE COMMISIONER OF POLICE OF THE METROPOLIS
2) METROPOLITAN POLICE AUTHORITY	APPELLANTS

MS E OSINAIKE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	MISS K MINTO
(of Counsel)
Instructed by:
Metropolitan Police Service Legal Services
New Scotland Yard
Broadway
London SW1H OBG	
For the Respondent	DEBARRED	

SUMMARY  
RACE DISCRIMINATION:  Inferring discrimination; Burden of proof.
The Respondent complained of race discrimination by her employers on many grounds.  All but one was dismissed.  On the single ground the Tribunal held that there was conduct from which it could conclude that Respondent would have been treated differently if she was white and the Appellants had not discharged the onus of proof.  On appeal, held there was no basis on which the ET could have held that the onus had passed to the Appellants.  Appeal allowed. 

HIS HONOUR JUDGE REID QC
Introduction
1.	This is an appeal against the reserved judgment of the London South Employment Tribunal promulgated on 3 June 2009 after a hearing lasting 111/2 days followed by three days consideration in chambers. It arises out of the employment of Ms Osinaike, the Claimant, by the Metropolitan Police (“the Respondent”) as a dedicated detention officer (DDO) at Walworth Police Station. The Tribunal dismissed all but one of the Claimant’s claims of sex and race discrimination but found in favour of the Claimant in one respect. There is no appeal is relation to the dismissal of any of the other claims and this appeal is concerned with only one comparatively small part of a very lengthy and careful judgment. 

2.	The unanimous judgment of that Tribunal was that the claim described as “Allegation 11” was well founded.  Its judgment in relation to this ground was “The complaint of racial harassment was well founded in that the Claimant was told on 22 June 2007 by the Senior Management Team that she needed to see a psychiatrist”.

3.	The Respondents appeal against this decision.  The Claimant failed to comply with the directions of the Employment Appeal Tribunal as to lodging an answer to the appeal, despite being given an extension of time within which to do so. Her application for a further extension was refused and by order of the Registrar dated 8 October 2009 she was debarred from taking any further part in the appeal.  As a result at the hearing of the appeal only the Respondents were represented.

Background
4.	The background to the case was that the Claimant was employed as a DDO at Tottenham Police Station in the Borough of Haringey from 23 March 2004. On 8 September 2006 she made a request to be transferred from Haringey on welfare grounds. She said she lived in Camberwell, that she had a long journey to work and that she had to care for her diabetic son. Her transfer was approved and on 15 January 2007 she commenced work at another police station in the London Borough of Southwark, Walworth Police Station.  She believed that she would after an initial period be posted to the Immigration Suite at Southwark Police Station.

5.	Before her transfer, in November 2006, she moved house from Camberwell to Basildon in Essex.  This move took place very suddenly.  In early December 2006 she told Human Resources staff responsible for the Southwark area that she had been arrested in 2005 as a result of a neighbours' dispute and had been detained and processed at Walworth Police Station.  She had an ongoing complaint arising from that arrest which had not at that time been resolved: it was not resolved until a meeting on 28 March 2007, when she was informed that there would be no disciplinary action against any of the officers involved, an outcome which she accepted, although she was not happy with it.

6.	Almost immediately on taking up her duties at Walworth it became apparent that there were substantial problems with her colleagues and difficulties with her travel.  Although she had informed Tottenham of her change of address, she had not told anyone in Southwark.  The move effectively aggravated her travelling difficulties. 

7.	On 12 February 2007 there was a case conference about the Claimant and her management and one of the outcomes was that on 16 February an occupational health referral was made in respect of the Claimant.  Miss Ball, the relevant human resources manager, concluded her comments in the referral with a specific question as to whether a psychiatric assessment would be appropriate.  The Claimant then met Ms Savage, the qualified occupational health adviser, and Ms Bygrave, a welfare officer, at the end of March 2007.

8.	Matters did not improve and on 22 June 2007 the Claimant had a further meeting with Ms Savage. At this stage the move to Southwark Immigration Suite had not materialized. It was out of this meeting that Allegation 11 arose.

Allegation 11
9.	Allegation 11 was pleaded by the Claimant in her ET1 in these terms: “The most recent comment made was on the 22nd of June 2007 in personnel by the SMT (mental)”. She later filed an “Amended Details of Claim” in which she set out this claim thus: “15th August - SMT needs to see a psychiatrist”. This was said to be harassment under the Race Relations Act 1976 ("RRA"). At a Pre-Hearing Review on 22 August 2008 the Claimant confirmed that the incident complained of occurred on 22 June not 15 August.

10.	In its Response to “Amended Details of Claim” the Police set out their version of the facts of the meeting with the Senior Management Team on 22 June 2007 and denied that this constituted harassment.

11.	In the list of issues eventually adopted for the purpose of the hearing issue 11 was defined in these terms:
“11.      Was the Claimant told by the Senior Management Team she needed to see a psychiatrist on 22 June 2007?
Racial Harassment
a.   If the act did occur, was this unwanted conduct which had the purpose or effect of violating the Claimant's dignity, or creating an intimidating, hostile, degrading or offensive environment for her or could it have reasonably been seen as having that effect?
b.   If so, can the Tribunal conclude that it was an act of harassment on the
grounds of race or ethnic or national origin?	
c.   If so, can the Respondent prove that there was no such reason for the act?”

The relevant section
12.	Section 3A RRA provides that that a person subjects another to racial harassment if-:
“(1) on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of-
(a) violating that other person's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.”

The Tribunal’s findings of fact
13.	The Tribunal’s made detailed findings of fact in relation to the events of 22 June, which it summarized in its finding that “… the Respondent met with the Claimant and put to her through Liz Savage that they believed that she needed to see a psychiatrist for an assessment.  The Claimant became extremely upset and then went on sick leave.  Thereafter she presented her written grievance on 1 July 2007.”

14.	In more detail the Tribunal found that Ms Savage, the occupational health advisor, had not had the detailed referral document when she first saw the Claimant at the end of March 2007, but she did when she met the Claimant on 22 June 2007.  Following the March meeting her view was that there was no need for the Claimant to see a psychiatrist.  By June the decision had been taken that the Claimant should be referred to Dr Fletcher, who was the Occupational Health Doctor, as opposed to Ms Savage.

15.	By an email dated 1 June 2007 Miss Ball sent the occupational health referral document to Dr Fletcher as well as a copy of Ms Savage's feedback in relation to her meeting with the Claimant at the end of March 2007.  She then explained that “unfortunately” since the Claimant's meeting with Ms Savage things had continued to be difficult with the Claimant and that they had concerns regarding her welfare.  She stated that at times the Claimant could become very angry, frustrated and upset and had on occasions self-harmed during meetings ("hitting her head against the wall").  The self-harm referred to of “hitting her head against the wall” turned out to be a reference to the Claimant sitting on a chair during a meeting, becoming distressed and in that distress rocking back and forth on her chair and inadvertently coming in contact with the wall behind her chair.  The Claimant strongly disputed that she actually hit her head against a wall.  The Tribunal concluded that she had merely been passionately making her point and that the information that Miss Ball conveyed to Dr Fletcher at the beginning of June 2007 overstated the perceptions of self-harm.  The reference to incidents of self harm had, in the Tribunal's view, been added by Miss Ball to the occupational health referral some two months after the 28 March meeting in an effort to justify the request for a referral to a psychiatrist, and to undermine Ms Savage's conclusions.  Miss Ball in her email to Dr Fletcher of 1 June 2007 asked Dr Fletcher to arrange for a Psychiatrist's appointment to determine the Claimant's fitness for the “highly stressful role” of DDO in Custody.  

16.	In an email dated 27 July 2007 after the Claimant had presented her grievance and after an initial discussion about the grievance had taken place between the Claimant, Ms Hills and Miss Ball of Human Resources Superintendent Vincent confirmed that he was agreeable to the Claimant taking up her role as a DDO within the Southwark Immigration Suite.  The Claimant was off sick at this stage and in due course she returned to work during August 2007.  He then stated in that email that he had two concerns after Inspector Verney had informed him about some of the discussion which took place during the interview on 22 June 2007.  He stated that Inspector Verney had reported to him that Ms Savage basically started the interview with a comment similar to “They think you are mad here”.  He wanted to reiterate to Ms Hills that this was certainly not the case but that they were seriously concerned about the Claimant's welfare and her decision-making capability as a result of her current difficulties.

17.	Inspector Verney stated that that was not what he had said.  Ms Savage had used appropriate and professional language in speaking to the Claimant at the beginning of the meeting.  The Tribunal was satisfied that Ms Savage had not used inappropriate language.  None of the four people who were present, i.e. the Claimant, Inspector Verney, Ms Savage or Ms Bygrave, alleged this.  The Tribunal however found that what Superintendent Vincent was doing was capturing in shorthand the sentiment about the Claimant's state of mind.  He was in all probability “using the vernacular”. 

18.	The Tribunal found that the message that she needed to see a psychiatrist was clearly being conveyed to the Claimant through Ms Savage.  Ms Savage made it very clear in her evidence that she considered that the Senior Management Team had not accepted her professional judgment as communicated to them prior to the 22 June 2007 meeting and that they wished to seek further evidence about the Claimant’s state of mind.  In addition Ms Savage felt upset for the Claimant because she believed that the Claimant did not have any physical or mental health problems and that she should have been allowed to get on with her employment.  In her opinion she could not imagine any more difficult environment for someone to work in having regard to the background of her arrest. 

19.	Although Ms Savage did not consider that seeing a psychiatrist would help she sought to persuade the Claimant to go along with the proposal on the basis that seeing a psychiatrist would help to prove the negative to her managers.  She considered that this was an occasion on which the Metropolitan Police Service had found the management of an employee awkward and found it more convenient to medicalise the situation and refer the Claimant to Occupational Health.  Ms Savage's view was that she was being put in a difficult position being asked to put to the Claimant the proposal in that meeting in June that her management wanted her to see a psychiatrist.  She believed that she had correctly anticipated that the Claimant's reaction would be one of distress and considered that that reaction was justified.

20.	The Respondent's procedure and usual practice was that a member of staff would not be referred to a psychiatrist unless the Occupational Health Doctor, as opposed to the Occupational Health Advisor, had made such a referral.  Thus if the Occupational Health Advisor saw a member of staff and believed that this might be the appropriate disposal, she could not refer the member of staff directly to a psychiatrist but would have arranged a meeting with the Occupational Health Doctor.  In this case it was apparent that Ms Savage did not consider that there were any grounds for referring the matter to Dr Fletcher in the first instance.  Following the meeting on 22 June 2007 a note was written up in which the views of Ms Savage and Ms Bygrave were set out and also an account was given of the meeting.  Among other matters at the meeting on 22 June the Claimant referred to the fact that it had been agreed on her transfer to Southwark that she would be working in the Immigration Suite at Southwark.  She queried why this had not been pursued, or why she could not do this. The Claimant was recorded as having been extremely distressed.

The Tribunal’s conclusions
21.	The Tribunal first asked itself whether the matter complained of was unwanted conduct which had the purpose or effect of violating the Claimant's dignity, or creating an intimidating hostile, degrading or offensive environment for the Claimant or could have reasonably been seen as having that effect.  It considered that this part of the claim was made out having regard to the evidence of Ms Savage and Superintendent Vincent's characterisation of the message conveyed by Ms Savage in his subsequent memorandum. 

22.	The Tribunal then asked whether it could conclude that this was an act of harassment on the grounds of race or ethnic or national origin.  The Tribunal considered that it could conclude that the act of harassment was on grounds of race having regarded the following matters: (1) the difference in race; (2) to the Respondent's failure to anticipate the effect on the Claimant again as described by Ms Savage; (3) “the fact that the Respondent denied the primary facts in this allegation and were found to have proceeded in a way which was contrary to the information already given to them by Ms Savage about the need for a psychiatric assessment; and which indicated a change of approach from that taken by Mr Verney with the Claimant in the first month or so of her placement”; (4) “the persistence in the view that the Claimant needed to see a psychiatrist [which] was also based on an exaggerated and inaccurate picture painted in the referral to Occupational Health”; (5) “that this was an example of the Respondent failing to appreciate the impact of the Claimant's background on her placement at Southwark Police Station in terms of the previous arrest and also the travel difficulties.”

23.	The Tribunal then continued: 
“The Tribunal considered that it could conclude from the primary facts that if the Claimant had been White, the Respondent 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.  The Claimant was apparently not expected to respond to major stresses (such as her travel and the background of working at a station to which she herself had been brought as a prisoner) in a way that would be expected of a normal person. …. The burden of proving that they had not racially discriminated against the Claimant in this respect thus passed to the Respondent.”

24.	The Tribunal then asked itself whether the Respondent could prove that there was no such reason for the act. It said “The Tribunal took into account that the Respondent had denied that the Senior Management Team had told the Claimant that she needed to see a psychiatrist on 22 June 2007. One of the Respondent's arguments was that Miss Ball had made the referral because she was concerned for the Claimant's welfare and her evidence was that the Respondent's procedures required a medical assessment prior to transfer. The Tribunal rejected this argument because it was apparent that a psychiatric or medical assessment was not a requirement for a transfer given the very strong welfare grounds which existed in relation to the travel arrangements and also the previous arrest. Further no such medical assessment had been obtained on the previous occasion.”

25.	The final paragraph of its conclusion was as follows:
“In addition the Tribunal has already expressed its concern about the exaggerated allegations by Miss Ball that the Claimant was involved in self harm and the thin basis for this.  Further [Counsel for the Respondent] referred to the Respondent's duty of care to the Claimant and duties under the Disability Discrimination Act 1995.  The Claimant was not maintaining at the time that she was a disabled person and the Tribunal considered that the underlying difficulties could have been dealt with by way of dealing with the transfer. In the circumstances therefore the Tribunal concluded that the Respondent had not established that the reason for its treatment of the Claimant was.” Presumably the Tribunal intended to conclude the paragraph with some words such as “in no way related to her race.”]

The Grounds of Appeal
26.	The Respondent raised six grounds of appeal: (1) The Tribunal misapplied or misconstrued the test as to whether the Claimant had proved unwanted conduct which had the purpose or effect of violating the Claimant’s dignity or creating a hostile, degrading or offensive environment for her contrary to section 3A(1); (2) The question as to who the person was who had subjected the Claimant to unwanted conduct pursuant to section 3A(1) RRA was misapplied and/or misconstrued; (3) The test as to whether the Claimant had proved that the act was done on the grounds of her race was misapplied and/or misconstrued; (4) The Tribunal wrongly concluded that the Respondent had failed to prove that there was no racial reason for the act; (5) The Tribunal erred in law when failing to give any or any adequate consideration or gave insufficient weight or misdirected itself to material facts; and (6) The conclusion that the Respondent had harassed the Claimant on the grounds of her race or ethnic or national origins was perverse.  

The Respondent’s submissions
27.	Ground (1): The Tribunal did not set out whether the conduct had the purpose or the effect of violating the Claimant's dignity, or creating a hostile, degrading or offensive environment for her contrary to section 3A(1) RRA. The Tribunal said that this part of the claim was made out having regard to “the evidence of Ms Savage” and “Superintendent Vincent's characterisation of the message conveyed by Ms Savage”, but it was not clear what part of Ms Savage's evidence the Tribunal is referring to nor which limb of the “purpose or effect” was found to have been made out.  Although it found that Ms Savage thought that the Claimant was justifiably distressed it did not say how Ms Savage's opinion was relevant.  As to Superintendent Vincent’s report that Ms Savage had said, “They think you are mad here” on 22 June 2007, this was not what the Tribunal found was said, but that it captured “the sentiment about the Claimant's state of mind”.  This was not relevant to the purpose or effect on the Claimant, since it was a characterisation given to the conduct after the event by a party not present when the conduct occurred.  This characterisation was not known to the Claimant at the time.  Furthermore, the Tribunal took into account the fact that Ms Savage had not recommended that the Claimant be seen by a psychiatrist in March 2007.  It was unclear how Ms Savage's previous determination as to the Claimant's mental health brought about a legal finding on the purpose or effect of the alleged harassment.

28.	The Tribunal did not make a finding as to the effect of the conduct on the Claimant in any event.  The Tribunal found that the Claimant became extremely upset but did not make a determination as to whether she was subjected to conduct which either violated her dignity pursuant to section 3A(l)(a) or created an intimidating, hostile, degrading, humiliating or offensive environment for her pursuant to section 3A(l)(b) RRA.  The Tribunal found that the Claimant became extremely upset but made no finding as to whether that effect was reasonable in all the circumstances including her perception of the conduct pursuant to section 3A(2) RRA.  The test is objective and given the Tribunal's findings of fact as to her proneness to take offence and read offensive conduct into innocuous events, which led her to make so many unfounded claims, the Tribunal ought to have considered the question in detail.

29.	Ground (2): The Tribunal was required to make a determination as to the identity of that “person” (the harasser).  The Tribunal did not make a finding as to who the harasser was within the Senior Management Team.  The Senior Management Team was the alleged perpetrator, but the Tribunal ought to have made a determination as to who the harasser was within that Team.  The witnesses who could be said to be part of the Senior Management Team were Superintendent Vincent and Miss Ball.  The conduct which formed the basis of the claim was said by Ms Savage on 22 June 2007.  The Tribunal found, “the Respondent met with the Claimant and put to her through Ms Savage that they believed that she needed to see a Psychiatrist for an assessment”.  In order to properly consider either the “purpose” or the “grounds” under section 3A RRA a Tribunal had to make a finding as to the identity of the harasser because the Respondent did not have mental capacity, but its employees, servants or agents did.  If the Tribunal meant to say that the harasser was Miss Ball, acting through Ms Savage, it was wrong in law to make a finding that a person could subject another to harassment “through” someone else.

30.	Ground (3): The Tribunal misapplied the law as to whether the conduct was done on racial grounds pursuant to section 3A(1) RRA.  It was particularly important for the Tribunal to consider the question properly given that telling an employee in an Occupational Health meeting that management wishes her to see a psychiatrist does not sit easily as an act of harassment, in the everyday sense of the word, and that such requests are a daily function of such large organizations.  In line with Madarassy v Nomura International Plc [2007] ICR 867, English v Thomas Sanderson Blinds Ltd [2009] IRLR 206 and Ladele v London Borough of Islington [2009] EWCA Civ 1357 the Tribunal should have considered the harasser's mental processes.  An analysis of the “reason why” is necessary in harassment cases.  In this case, because the “basis” of the conduct is not inherently race, the “reason why” had to be determined.  The Tribunal failed to make an assessment as to why the conduct occurred at all.  Questions were not put to the Respondent's Senior Management witnesses, Miss Ball or Superintendent Vincent, nor to Ms Savage suggesting that the referral was made on the grounds of race.  The only finding of fact that the Tribunal made on the issue of the reason for the referral was that it accepted Ms Savage’s view that “this was an example of an occasion on which the Metropolitan Police Service had found the management of an employee awkward and that they found it more convenient to medicalise the situation and refer the Claimant to Occupational Health”.

31.	The first stage of the Tribunal's enquiry, before the burden shifted, was whether the Claimant had proved facts from which the Tribunal could properly conclude, in the absence of an adequate explanation and on all the evidence, that the Respondents committed an act of unlawful discrimination or harassment.  She had to prove, on the balance of probabilities, (a) the Respondents treated her less favourably or harassed her and (b) on racial grounds (per Mummery LJ in Madarassy at paras 55 to 58).  The Claimant had to prove the facts on which she placed reliance for the drawing of the inference of discrimination.  Simply showing that conduct is unreasonable or unfair is not, by itself, enough to trigger the transfer of the burden of proof: see Bahl v Law Society [2003] IRLR 640, EAT per Elias J at para 100, approved by the Court of Appeal at [2004] IRLR 799.  If unreasonable conduct occurs alongside other indications that there is or might be discrimination on racial grounds the position is different, but the indications must relate to the prohibited treatment.

32.	The Tribunal decided that the Claimant had satisfied it that there was a prima facie case of harassment.  The “other indications” which the Tribunal held might lead to an inference of the act being on the grounds of race were: a. “the difference in race”; b. “the Respondent's failure to anticipate the effect on the Claimant again as described by Ms Savage”; c. “the [incorrect assertion that the] Respondent denied the primary facts in this allegation”; d. The Respondents “proceeded in a way which was contrary to the information already given to them by Ms Savage about the need for a psychiatric assessment; and which indicated a change of approach from that taken by Mr Verney with the Claimant in the first month or so of her placement”; and e. “The persistence in the view that the Claimant needed to see a psychiatrist was also based on an exaggerated and inaccurate picture painted in the referral to Occupational Health”.  None of these taken alone or together could properly constitute facts from which the Tribunal could properly draw an inference of race discrimination. 

33.	The Tribunal wrongly considered a comparator and did so without any evidence.  It appears to state that if the Claimant had been white her behaviour would not have led the Respondent to refer her to a psychiatrist and that this was another fact which could lead it to draw an inference of discrimination. There was no basis for doing so.

34.	Ground (4): Even if the burden of proof had transferred to the Respondents, the onus had been discharged and the Tribunal was wrong to conclude otherwise.

35.	Ground (5) and (6): The Tribunal had simply misconstrued the facts as it found them.  There was nothing on which any Tribunal correctly directing itself could have found harassment contrary to the RRA and the decision was simply perverse.  The case was one of those rare cases where an overwhelming case had been made out that the Tribunal had reached a conclusion which no reasonable Tribunal could have reached.  

Discussion
36.	Richmond Pharmacology v Dhaliwal [2009] IRLR 336, which was not reported at the time of the Tribunal’s decision, makes clear that the approach to be taken to harassment claims should be broadly the same, regardless of the particular form of discrimination in issue.  Thus in each context 'harassment' is now specifically defined in a way that focuses on the three elements found in section 3A RRA:
(1)     unwanted conduct;
(2)     having the purpose or effect of either: (i) violating the claimant's dignity; or (ii) creating an adverse environment for her; 
(3)     on prohibited grounds (ie, in this case, of race).

37.	The Tribunal found that the Claimant was told “by the Senior Management Team” that she needed to see a psychiatrist.  This was clearly unwanted conduct.  The vernacular characterisation of the message conveyed to her was “They think you are mad here”.  The Tribunal was clearly entitled to find that this was conduct which had the effect of violating the Claimant's dignity.  The fact that the Tribunal did not spell out in so many words this very obvious conclusion does not give rise to any arguable ground of appeal.

38.	The suggestion that the Tribunal’s decision is flawed because the test is objective and  the Tribunal failed to consider in detail whether that effect was reasonable in all the circumstances (including the Claimant’s perception of the conduct) is equally baseless.  The Tribunal found that the Claimant became extremely upset.  It had found that she was prone to take offence and read offensive conduct into innocuous events.  It was this which had led her to make so many unfounded claims.  It is nonetheless evident that the Tribunal found that the Claimant’s reaction to the assertion made to her was an objectively reasonable one.  There was no need for the Tribunal to deal with the point in any more detail than it did. 

39.	The Respondents’ point that it is wrong in law to make a finding that a person could subject another to harassment “through” someone else is equally unfounded.  The Respondents are not natural persons and could only act through a natural person.  It is plain from any proper reading of the decision that the natural person held to be responsible for the harassment was Miss Ball.  She conveyed her message through Ms Savage (who on the findings of the Tribunal was clearly an embarrassed and unwilling conduit).  There is no reason in law why the act of harassment can not be performed through a third party: for example, a memo delivered by a member of staff or signed per pro the author.

40.	The real substance of the Respondents’ appeal lies in the question whether the Respondents’ treatment of the Claimant could be said to be on racial grounds.

41.	The Tribunal concluded that Claimant had proved facts from which the Tribunal could properly conclude, in the absence of an adequate explanation and on all the evidence, that the Respondents had committed an act of unlawful discrimination or harassment.  Thus the Tribunal took the view that the onus of proof had shifted to the Respondents.  It did so relying on five matters.

42.	The first matter relied on was the difference in race between the Claimant and the members of the senior management team.  In this the Tribunal was wrong in law.  A “difference in race” cannot of itself lead it to an inference of discrimination.  As  Elias J said in Bahl  v  Law Society at para 94: “It is, however, a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman then it is legitimate to infer that our unreasonable treatment was because the person was black or a woman.”

43.	The second factor relied upon was “the Respondents’ failure to anticipate the effect on the Claimant again as described by Ms Savage”.  If the Tribunal was making a finding that the Respondents lacked awareness of racial or cultural differences and did not appreciate the cultural differences manifested by the Claimant, it ought to have said so and set out the facts which led it to this conclusion: see Bradford Hospitals NHS Trust v Al-Shabib [2003] IRLR 4, EAT at para 21.  As the decision stands there is no basis for using this factor as a ground for finding that the onus had shifted to the Respondents.

44.	The third factor the Tribunal took into account was “the fact that the Respondent denied the primary facts in this allegation”.  This was simply factually incorrect.  The Respondents did not deny that the Claimant's complaint occurred.  The Amended Grounds of Resistance referred to the meeting and what was said but denied that telling the Claimant she needed to see a psychiatrist constitutes harassment on the grounds of race.  It was never suggested that it was not put to the Claimant that she should see a psychiatrist.  The Tribunal’s finding, accepting Ms Savage’s evidence that Ms Savage sought to persuade the Claimant to go along with the proposal that she should see a psychiatrist on the basis that seeing a psychiatrist would help to prove the negative to her managers, demonstrates that.

45.	The fourth factor, “the persistence in the view that the Claimant needed to see a psychiatrist [which] was also based on an exaggerated and inaccurate picture painted in the referral to Occupational Health” and the fifth factor, “this was an example of the Respondents failing to appreciate the impact of the Claimant's background on her placement at Southwark Police Station in terms of the previous arrest and also the travel difficulties” do not on the face of them have any racial connotation at all.

46.	The Tribunal, having considered these five matters, finally determined that it could conclude from the primary facts that “if the Claimant had been White, the Respondent 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”.  It is entirely unclear how the Tribunal came to this conclusion.  It is apparent that no questions were addressed to any witness (either by the Claimant in person or by members of the Tribunal) to raise the issue of such a comparator.  There is no reference to any evidence to support this proposition.  The Tribunal appears to be stating that a white person would not have been referred to a psychiatrist because the Respondents would have “understood” and that the Respondents harassed the Claimant because they did not appreciate the cultural differences manifested by the Claimant.  If indeed this was what it intended to say, it ought to have said so and set out the facts which led it to that conclusion in accordance with Bradford Hospitals NHS Trust v Al-Shabib at para 21.

47.	As counsel for the Respondents correctly submitted, simply showing that conduct is unreasonable or unfair is not, by itself, enough to trigger the transfer of the burden of proof: see Bahl v Law Society [2003] IRLR 640, EAT per Elias J at para 100, approved by the Court of Appeal at [2004] IRLR 799.  If unreasonable conduct occurs alongside other indications that there is or might be discrimination on racial grounds the position is different, but the indications must relate to the prohibited treatment.  Here they did not.

48.	It is notable that the Tribunal nowhere considered the reasons why the Respondents acted as they did.  The only finding made was the acceptance of Ms Savage’s view that this was an example of an occasion on which the Respondents “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.

49.	The Tribunal rejected Miss Ball's evidence that she was concerned for the Claimant's welfare and that the Respondents’ procedures required a medical assessment prior to the transfer.  It stated that a psychiatric or medical assessment was not a requirement because of the “very strong welfare grounds” which existed and noted that no such medical assessment had been obtained on the previous occasion.  It expressed the view that “the underlying difficulties could have been dealt with by way of dealing with the transfer”.  From this it is clear that the Tribunal was sympathetic to the Claimant whose situation had on any view been ineptly handled by the Respondent.  The posting to Walworth where she had been taken under arrest and processed and where she had still unresolved issues arising from that arrest made her position extremely difficult.  The major purpose of her transfer, to obviate travel difficulties, had been lost by her move to Basildon and in relation to this there appears to have been a failure of communication.  It was never apparent why Human Resources felt that a referral to a psychiatrist would assist in obtaining a transfer, and it is apparent that Miss Ball “loaded” the referral to Occupational Health in order to obtain the result she wanted, but nowhere in any of this is there any evidence to suggest that matters would have been handled differently had the Claimant been white rather than black.

50.	In our judgment the Tribunal erred in law in holding that it could conclude that the act of harassment was on the grounds of race so that the onus of proof that there was no racially motivated reason passed to the Respondents.  The Claimant having failed to show any basis on which the onus of proof transferred and having failed to show that the Respondents’ action was on a prohibited ground (ie race), the appeal must be allowed and the Claimant’s claim of racial harassment under Allegation 11 dismissed.

51.	In the circumstances it is not necessary to deal with the Respondents’ remaining grounds of appeal.