The Employment Appeal Tribunal has confirmed that an employer’s well-intentioned motives are not relevant to the issue of whether there has been unlawful direct discrimination.
Under the Race Relations Act 1976, there is direct race discrimination if, on racial grounds, an employer treats a potential or actual employee less favourably than it treats or would treat other persons. The defence of objective justification is not available to an employer where direct race discrimination is alleged.
Amnesty International refused to appoint a northern Sudanese woman to a Sudanese researcher position because they thought that her ethnic origin would undermine the organisation’s impartiality as to the Sudanese conflict and might give rise to increased security risks for her and her colleagues when travelling in an area where there were significant ethnic tensions.
The rejected applicant brought a claim of direct race discrimination against Amnesty and Amnesty sought to rely on its motives for rejecting the applicant in its defence.
The race discrimination claim succeeded and, in upholding that decision, the Employment Appeal Tribunal confirmed that the correct approach is to examine the reason why the less favourable treatment complained of occurred and, once it was established that Amnesty’s actions were based on the applicant’s northern Sudanese origins, enquiry into the wider motives were not relevant.
The case highlights the potential for unfairness to employers by the absence of any ability to argue the defence of justification in direct race discrimination claims, although, as the EAT itself pointed out when expressing some ‘unease’ about its decision, it might be possible for employers in a similar scenario to rely on the separate “genuine occupational requirement” defence; the Race Relations Act provides that an employer may be allowed to directly discriminate if being of a particular race is a genuine and determining occupational requirement and that it is proportionate to apply that requirement in the particular case. The classic example of this defence is where a restaurant serving cuisine of a particular region requires waiting staff of a certain ethnicity, compatible with the theme of the restaurant. The point was not argued by Amnesty in this case but it may, in principle, have been possible for them to have done so.