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.