The Employment Appeal Tribunal (EAT) has held that an employer's motive, even if benign, is irrelevant when considering whether or not that employer has discriminated against an employee on the grounds of their race.
Although there is nothing new in the principle that an employer's motive for the discriminatory act is irrelevant, this case is a stark illustration of that principle, as the employer's motivation was based on a genuine concern for the employee's health and safety.
The facts of this case are unusual (see details below) but employers should be aware that the Courts will always look to the employer's reason for their action (i.e. whether their decision was based on the employee's sex, race, disability, age, religion or sexual orientation) and not their motivation for that decision.
However there was some comfort for employers in the EAT's decision, as they also held that a finding of direct racial discrimination against an employer does not automatically mean that they have breached the implied term of mutual trust and confidence thereby entitling the employee to resign and claim constructive and unfair dismissal.
In the case of Amnesty International (Amnesty) v Ms Ahmed, Ms Ahmed (who is of Northern Sudanese origin) applied for a promotion to the role of "Sudan Researcher" for Amnesty. She was not appointed to the role because Amnesty felt that staff undertaking work in a country which they originate from would compromise Amnesty's reputation for impartiality and neutrality, as the individual may be seen to be representing the "other side" because of their particular racial or ethnic origins. Amnesty also believed that as the role would involve visiting Sudan, where there are serious tensions between the North and South, Ms Ahmed because of her Northern Sudanese origin would be exposed to unacceptably high risks to her personal safety. Therefore Amnesty decided not to appoint Ms Ahmed to the post but did encourage her to apply for other positions. However Ms Ahmed resigned and brought claims of racial discrimination and constructive and unfair dismissal to an Employment Tribunal.
Ms Ahmed was successful in these claims before an Employment Tribunal and Amnesty appealed to the EAT. Amnesty argued before the EAT that they were not in breach of the Race Relations Act 1976 because had it appointed Ms Ahmed, the risks to her safety meant that it would have been in breach of its duty as her employer under the Health and Safety at Work Act 1974.
However, the EAT upheld the Employment Tribunal's decision that Amnesty had racially discriminated against Ms Ahmed, on the following basis;
Firstly, in cases of 'direct' discrimination the only question is what is the ground (or reason) for the treatment complained of. If an employer has treated an employee less favourably on the grounds of his or her sex or race, they will still be liable for discrimination regardless of the fact that their motives for doing so were benign. In this case Amnesty's decision not to appoint Ms Ahmed was because she was of Northern Sudanese origin and therefore there was no need to examine Amnesty's motives for that decision.
Secondly, an amendment to the Race Relations Act in 2003 to implement the European Race Directive means that employers can not rely on a UK law (i.e. the Health and Safety at Work Act) as a defence to a claim of direct racial discrimination which has been prescribed by European Law.
The EAT did note that this amendment could place employers in a 'highly invidious position' and therefore raised the possibility that the genuine occupational requirement defence could be relied upon in circumstances where the national or ethical origin of an employee makes it practically impossible for them to work in a particular overseas country. However they made no specific ruling on that point.
In respect of the Employment Tribunal's findings that Ms Ahmed had been constructively and unfairly dismissed, the EAT confirmed that the burden of proof is on the employee to show that their employer had fundamentally breached their contract of employment. Furthermore, the test of whether the relationship of trust of confidence between employer and employee has been destroyed is an objective one.
On the facts of this particular case Amnesty had reached its decision not to appoint Ms Ahmed after a careful and thorough process and was not motivated by racial prejudice. Amnesty also informed Ms Ahmed that the decision not to appoint her was no reflection on her personally, encouraged her to apply for similar posts and its conduct did not affect Ms Ahmed's current employment in any way. Therefore, the EAT upheld Amnesty's appeal in relation to the constructive and unfair dismissal claim.