Amnesty International v Ahmed – Employment Appeal Tribunal (EAT)
Miss Ahmed, who is Sudanese, began working for Amnesty International in 2005 as a campaigner on issues relating to Sudan, and sought a promotion in 2007 to be appointed as a researcher, dealing with the same issues, on a permanent basis.
Whilst her promotion was recommended by the recruitment panel, one of Amnesty's senior directors raised concerns that her ethnicity may cause a security risk if she visited Sudan or Chad, and could compromise Amnesty's impartiality in the region. Her promotion was not granted.
Miss Ahmed resigned and claimed that she had been constructively dismissed and suffered discrimination on grounds of her race.
The Tribunal's decision
The Tribunal upheld Miss Ahmed's claim of race discrimination on the basis that her ethnicity was the reason for not promoting her. Further, it decided that Amnesty could not rely upon Section 41(1) of the Race Relations Act 1976 (RRA), which provides a defence to a race discrimination claim for employers where it can be successfully argued that their actions were not unlawful as they were done "in pursuance of any enactment". In this case, Amnesty argued that it was seeking to ensure Miss Ahmed's health and safety, pursuant to the Health and Safety at Work Act 1974.
The Tribunal also upheld her unfair dismissal complaint as it believed Amnesty's actions amounted to a breach of the implied term of mutual trust and confidence.
Amnesty appealed to the EAT.
The EAT's decision
The EAT upheld the Tribunal's decision that Miss Ahmed has suffered unlawful race discrimination. In doing so, it commented that an employer can not escape a finding of discrimination by showing a benign motive for its actions. With regard to this case, the fact that Amnesty had Miss Ahmed's health and safety in mind was irrelevant.
The EAT also agreed with the Tribunal that section 41(1) RRA would not provide a defence to its actions, but added that the entire provision had been disapplied by an amendment inserted into the RRA in 2003 as part of the UK's implementation of the Race Directive, thereby making its consideration in this case irrelevant.
With regard to the constructive dismissal allegation, the EAT held that discriminatory conduct does not automatically amount to a breach of the implied term of mutual trust and confidence. It found that Amnesty had arrived at its decision after a careful and thorough process which displayed no racial prejudice. Accordingly, Miss Ahmed's unfair dismissal claim failed.
What does this mean for you?
This is an interesting case where a discriminatory act by the employer did not amount to a breach of the implied term of mutual trust and confidence (entitling the employee to resign and allege constructive dismissal), though this is likely to be the exception rather than the norm.
It also provides some clarity on the status of the potential defence provided by section 41(1) RRA. Employers should be mindful that it is not safe to rely upon this provision as a defence to complaints of race discrimination.