Amnesty International v Ahmed
Section 1(1) of the 1976 Race Relations Act (RRA) states that it is direct discrimination for employers to treat someone less favourably than someone else on racial grounds. In Amnesty International v Ahmed, the Employment Appeal Tribunal (EAT) confirmed that the employer's motive, however benign, is irrelevant.
Basic facts
Ms Ahmed, who was from the north of Sudan, became a UK national in 1998. She started work with Amnesty International (AI) in January 2005, and applied for the post of researcher for Sudan (which she was already doing on a temporary basis) in the summer of 2007.
However, her application was not successful mainly because AI felt its impartiality might be questioned because of her connections with the country, and also that she might be personally at risk when she had to visit Sudan.
She then resigned and claimed, among other things, race discrimination under section 1(1) of the RRA. For its part, AI argued that it could rely on section 41(1) of the Act which affords a defence in relation to acts done by an employer “in pursuance of any enactment”.
Tribunal decision
The tribunal agreed with Ms Ahmed, saying that the decision not to appoint her amounted to direct discrimination under the RRA because it was based on her national or ethnic origin.
It rejected AI’s defence under section 41 (1) that its decision was not discriminatory because had she been appointed and had to travel to Sudan, it would then have been in breach of its duty as her employer under section 2(1) of the Health and Safety at Work Act.
AI appealed.
EAT decision
But the EAT upheld the tribunal’s decision that AI had racially discriminated against Ms Ahmed and rejected the two-stage argument put forward by AI. That is, that the tribunal should have considered whether there was less favourable treatment that would not have occurred but for her race; and then considered the reason for the difference in treatment.
Instead it said that tribunals have to ask one basic question - what are the “grounds” for the treatment complained of, irrespective of the motive. This is the approach they must adopt whether the discrimination is intentional as in the case of Nagarajan v London Regional Transport; or unintentional, stemming from the result of a benign policy as in James v Eastleigh.
As the ground for Ms Ahmed’s treatment was her ethnic origin, then she had been discriminated against. The fact that AI had a benign motive was irrelevant. With regard to AI’s argument under section 41, the EAT agreed with the tribunal that if the risk was so great to Ms Ahmed, it was open to AI not to send her there.
It then considered a new point under section 41(1A) of the RRA which, in the view of the EAT, disapplied section 41 in relation to discrimination (whether direct or indirect) that came within the scope of the Race directive. It said that “once racial discrimination came to be proscribed by EU law it could not be legitimate to rely on the provisions of domestic legislation by way of defence”.
The EAT expressed its unease about the implications of its decision for employees who have to work abroad in areas of acute political or ethnic tension, and drew attention to the possibility that the genuine occupational requirement defence set out in section 4A of the Act might apply.