Amnesty International v Ahmed [2009] ICR 1450

Ms Ahmed, of northern Sudanese origin, was denied promotion to Amnesty's Sudan researcher post due to impartiality and safety concerns linked to her ethnicity. The EAT upheld direct race discrimination but overturned the constructive unfair dismissal finding.

Facts

The Claimant, Ms Bashair Ahmed, was born in 1979 to Sudanese parents and would be identified within Sudan as coming from the north (sometimes described as ‘Arab’). She joined Amnesty International in January 2005 as a campaigner on Sudan issues, and in March 2007 took up an acting role as Sudan researcher. She applied for the permanent researcher post and was shortlisted. The recruitment panel, led by Mr Hondora, recommended her appointment, finding no conflict of interest.

However, Mr Cordone, Senior Director for Research, established a review panel due to concerns about (a) the perception of impartiality if a person of Sudanese ethnic origin held the post, and (b) heightened safety risks to her (and colleagues) when visiting Sudan or the refugee camps in Eastern Chad. By letter of 13 July 2007, Amnesty declined to appoint her, citing conflict of interest and health and safety concerns. The Claimant resigned and brought claims of direct and indirect race discrimination, age discrimination, and unfair constructive dismissal.

The Employment Tribunal upheld the claims of direct race discrimination and unfair dismissal (with an alternative finding of indirect discrimination). Amnesty appealed.

Issues

The EAT considered four issues:

• Whether the non-appointment constituted direct discrimination on racial grounds contrary to sections 1(1)(a) and 4(2)(b) of the Race Relations Act 1976.
• Whether Amnesty could rely on the defence under section 41(1) of the 1976 Act, on the basis that appointing the Claimant would breach its duty under section 2(1) of the Health and Safety at Work Act 1974.
• Whether the Tribunal’s alternative finding of indirect discrimination was sustainable.
• Whether the non-appointment amounted to a repudiatory breach of the implied term of trust and confidence, entitling the Claimant to claim constructive dismissal.

Arguments

Amnesty (Appellant)

Mr Epstein QC argued that the Tribunal had wrongly applied a simple ‘but for’ test. He submitted a two-stage approach was required: (1) whether there was less favourable treatment but for race, and (2) what, considering the mental processes of the alleged discriminator, was the reason for the difference. He contended the reason for non-appointment was not race but genuine conflict of interest and safety concerns. He also invoked section 41 based on section 2(1) HASWA, arguing the Claimant would necessarily need to visit Eastern Chad. On constructive dismissal, he argued the Tribunal wrongly treated the finding of discrimination as automatically constituting a breach of the Malik term.

Claimant (Respondent)

Mr A’Zami submitted that the treatment was plainly on racial grounds, that risk assessments could be undertaken before any visit, and that the panel had already considered and rejected the conflict of interest concerns. He argued the Tribunal’s decision was open to it on the evidence.

Judgment

Direct Discrimination

The EAT (Underhill P) upheld the Tribunal’s finding of direct discrimination. Reviewing James v Eastleigh Borough Council [1990] 2 AC 751 and Nagarajan v London Regional Transport [2000] 1 AC 501, the EAT explained that the fundamental question is the ground or reason for the treatment complained of. In some cases the ground is inherent in the act itself (a ‘criterion-based’ case like James); in others it must be found in the mental processes of the discriminator (as in Nagarajan). In both types of case, a benign motive is irrelevant.

The EAT held that Amnesty’s decision was explicitly based on the Claimant’s northern Sudanese ethnic origins; further inquiry into mental processes was unnecessary. The reasons Amnesty had for not wishing to appoint someone of Sudanese origin (however legitimate) did not save the decision from being direct discrimination. There is no defence of justification for direct discrimination.

Section 41 Defence

The EAT reviewed Hampson v DES [1991] 1 AC 171, Goba, and Page v Freight Hire (Tank Haulage) Ltd [1981] ICR 299, holding that the defence is available where the act was reasonably necessary to comply with a statutory obligation, and disagreeing with the Tribunal’s view that Page had been superseded. Nonetheless, on the facts, the Tribunal was entitled to find that Amnesty had not established that appointing the Claimant would necessarily breach section 2(1) HASWA, because there were alternative measures (e.g. not sending her to Eastern Chad). The EAT was ‘troubled’ but concluded the decision was open to the Tribunal.

By way of postscript, the EAT noted that section 41(1A) of the 1976 Act (inserted to implement the Race Directive) likely disapplies section 41(1) altogether in cases of racial discrimination within the scope of the Directive, rendering the entire section 41 issue academic.

Indirect Discrimination

Although the point was academic given the finding of direct discrimination, the EAT held that the Tribunal’s conclusion on justification was insufficiently reasoned in relation to Amnesty’s impartiality concerns. Had it been necessary to decide, the EAT would have remitted the matter.

Constructive Dismissal

The EAT allowed the appeal on this issue and dismissed the unfair dismissal claim. It held that a finding of unlawful discrimination does not automatically constitute a breach of the Malik term of trust and confidence. The provisions of anti-discrimination legislation are self-contained regimes. On the facts, Amnesty’s reasons were ‘serious and genuine’, displayed no racial prejudice, and could not reasonably be regarded as offensive to the Claimant. The decision was arrived at after a careful and thorough process, and Mr Cordone’s letter explained the position clearly. Amnesty could not be said to have acted ‘without reasonable or proper cause’.

Implications

The decision is important for several reasons:

• It clarifies the relationship between James v Eastleigh and Nagarajan. The ‘but for’ test remains useful, but the ultimate question is always whether the act was done on the proscribed ground. Where the criterion applied is inherently based on a protected characteristic, no inquiry into the mental processes of the discriminator is needed; benign motives afford no defence to direct discrimination.
• It confirms that there is no defence of justification for direct race discrimination, even where an employer has genuine and serious operational reasons (such as impartiality and safety) for treating an employee less favourably. The EAT expressed ‘unease’ at the implications for employers operating in politically or ethnically tense overseas contexts and drew attention (obiter) to the potential availability of the genuine occupational requirement defence under section 4A of the 1976 Act, without deciding the point.
• The postscript concerning section 41(1A) suggests that the statutory defence in section 41(1) is unavailable in cases of racial discrimination within the scope of the Race Directive.
• Significantly, the case establishes that a finding of unlawful discrimination does not automatically entail a repudiatory breach of the implied term of trust and confidence. Tribunals must independently assess whether the employer acted without reasonable and proper cause in a manner likely to destroy or seriously damage the relationship. This is a useful clarification for practitioners advising on constructive dismissal claims parasitic on discrimination findings.
• The case matters to employers – particularly NGOs and international organisations – whose staff may work in conflict zones, and to employment lawyers dealing with the interplay between discrimination law, health and safety obligations, and constructive dismissal.

Verdict: Appeal allowed in part. The Employment Appeal Tribunal upheld the Tribunal’s finding of direct race discrimination and rejected Amnesty’s section 41 defence, but allowed the appeal in relation to constructive dismissal and dismissed the unfair dismissal claim. The alternative finding of indirect discrimination was held to be insufficiently reasoned but did not require remittal given the finding of direct discrimination stood.

Source: Amnesty International v Ahmed [2009] UKEAT 0447_08_1308