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• The reason or 'ground' why the discrimination occurred is irrelevant where a discriminatory criterion is at work. There is no need to investigate the motivation as Direct Race and Sex discrimination is illegal even if for the 'best of reasons'.
• In the absence of a discriminatory criterion being applied the thought processes behind any alleged discrimination needs to be investigated(Nagarajan)
• There is therefore no contradiction between the criterion based decision in Eastleigh or the mental processes/motivation based decision in Nagarajan
• There is no "two-stage approach" to direct discrimination under the RRA 76 or SDA 75
• The defence of health and safety and conflict of interest in refusing to appoint the candidate were rejected by the EAT

Amnesty had formerly had a policy of not working in one's own country and was worried that Ms Ahmed being of north Sudanese ethnicity (arab) would be seen as biased by southern Sudanese. Amnesty argued that this could lead to a heightened risk to Ms Ahmed and any staff working with her. Amnesty was also worried about any potential risk to its reputation for impartiality.

The interview panel believed that Ms Ahmed should be appointed and Mr Hondora sent Mr Cordone (Director for Research who was known to already be seriously concerned about appointing Ms Ahmed) an e-mail informing him of this.

Alleged weaknesses in the claimant's performance were then raised and the claimant was interviewed again by a "review panel" chaired by Mr Cordone that decided the claimant should not be appointed.

The Claimant argued that:

• the decision not to appoint her was based on her national or ethnic origin and that this constituted direct discrimination within the meaning of s. 1 (1) (a) of the 1976 Race Relations Act. Such discrimination is unlawful under s. 4 (2) (b), that does not allow an employer to discriminate with regard to access to promotion.
Apart from denying it had directly discriminated against the Claimant Amnesty relied on s. 41 (1) of the 1976 RRA that allows a defence in relation to acts done "in pursuance of any enactment". It argued that discrimination was lawful to prevent the risks to Ms Ahmed's safety had she travelled to Sudan or Eastern Chad. To allow her to do so would have meant Amnesty breaching its duty under s. 2 (1) of the Health and Safety at Work Act 1974 ("HASWA").
• Amnesty's "conflict of interest policy" made it more difficult for employees of a particular nationality or national origin to be appointed to positions involving work relating to "their own" country and therefore constituted indirect discrimination according to s.1 (1A) of the 1976 Race Relations Act.
• the decision not to appoint her breached her employment contract entitling her to resign and claim constructive unfair dismissal.

S. 1 (1) (a) of the 1976 RRA:
"A person discriminates against another in any circumstances relevant for the
purposes of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons;
(b)"Racial grounds" are defined in s. 3 (1) whereby:
"'racial grounds' means any of the following grounds, namely colour, race, nationality or ethnic or national origins."

Amnesty's barrister Mr Epstein argued that the Claimant's using the "but for" test, that she would have been appointed to the post her ethnic origins was an error of law despite the decision in James v Eastleigh Borough Council [1990] endorsing this test. He argued that after Nagarajan v London Regional Transport [2000] 1 AC 501 a two-stage approach required asking a "reason why" question in addition to understanding why the discrimination took place.

Mr Epstein argued that it was necessary to ask a) if there less favourable treatment but for the Claimant's race and if so b) considering the mental processes of the alleged discriminator, what was the reason for the difference in treatment?". The EAT did not accept this argument and explained why using James v Eastleigh and Nagarajan.

In James v Eastleigh the plaintiff and his wife who were 61 years old visited a Council swimming pool which charged for him for entry but allowed his wife in free because she was of pensionable age unlike himself (state pension age 65 years for men). The House of Lords agreed with the plaintiff that the Council had discriminated against him on the grounds of his sex, contrary to the Sex Discrimination Act 1975

In rejecting a 'why' test Lord Goff said:

"did the defendant council, on the ground of sex, treat the plaintiff less favourably than it treated or would treat a woman? ……. by applying to the plaintiff a gender-based criterion, unfavourable to men, which it has adopted as the basis for a concession of free entry to its swimming pool, it did on the ground of sex treat him less favourably than it treated women of the same age, and in particular Mrs. James. In other words, I do not read the words "on the ground of sex" as necessarily referring only to the reason why the defendant acted as he did, but as embracing cases in which a gender-based criterion is the basis upon which the complainant has been selected for the relevant treatment" it does not follow that the words "on the ground of sex" refer only to cases where the defendant's reason for his action is the sex of the complainant; and, in my opinion, the application by the defendant to the complainant of a gender-based criterion which favours the opposite sex is just as much a case of unfavourable treatment on the ground of sex. Such a conclusion seems to me to be consistent with the policy of the Act, which is the active promotion of equal treatment of men and women. Indeed, the present case is no different from one in which the defendant adopts a criterion which favours widows as against widowers, on the basis that the former are likely to be less well off; or indeed, as my noble and learned friend, Lord Bridge of Harwich has pointed out, a criterion which favours women between the ages of 60 and 65, as against men between the same ages, on the same basis.

"It is plain to me that, in those cases, a man in either category who was so treated could properly say that he was treated less favourably on the ground of sex, and that the fact that the defendant had so treated him for a benign motive (to help women in the same category, because they are likely to be less well off) was irrelevant." "The simple fact is that, under section 1(1)(a) of the Act of 1975, which is concerned actively to promote equality of treatment of the two sexes, the adoption for this purpose of a gender-based criterion is unlawful "

In Nagarajan the plaintiff who had brought several race discrimination claims against London Regional Transport complained of having been refused a job with it. The House of Lords agreed he had been victimised contrary to s. 2 (1) of the 1976 Race Relations Act. Lord Nicholls said,

"Section 1(1)(a ) is concerned with direct discrimination, to use the accepted terminology. To be within section 1(1)(a ) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. ….. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances."

For the purposes of direct discrimination under section 1(1)(a), as distinct from indirect discrimination under section 1(1)(b), the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign. For instance, he may have believed that the applicant would not fit in, or that other employees might make the applicant's life a misery. If racial grounds were the reason for the less favourable treatment, direct discrimination under section 1(1)(a) is established.

R v Birmingham City Council, ex p. Equal Opportunities Commission [1989] AC 1155 was referred to whereby the Council's practice was held by the HoL to be discriminatory as it had set a higher pass-mark for girls than boys in the entrance exams for its single-sex grammar schools (there being more places for boys). The HoL decided that the reason why the girls were discriminated against on grounds of sex was irrelevant.

According to Lord Nicholls: a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases "on racial grounds" and "by reason that" denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."

In James v Eastleigh the Council the gender based criterion was by nature discriminatory therefore intention, motive, or reason was irrelevant. Treating a claimant less favourably on the grounds of his or her sex or race gives rise to liablity irrespective of motive.

In Nagarajan the job refusal was not inherently discriminatory but the mental processes rendered it so.

Thus according to Judge Underhill of the EAT there is no contradiction between James and Nagarajan as the differences reflect the different ways in which conduct may be discriminatory. James is criterion based, and Nagarajan is motivation based, needing consideration of the mental processes involved. .

Although the "but for" may be applied equally to both the "criterion" and the "mental processes" type of case, its value is in Nagarajan. If the discriminator would not have done the act complained of but for the claimant's sex or race the mental process involved as to intention, motive or reason are not needed. All that is needed is that the proscribed factor operated on his mind.

The "but for" test should not be used as an all-purpose substitute for the statutory language as although sex or race might be involved it might not necessarily be part of the ground or reason for discriminatory treatment.

Martin v Lancehawk Ltd (UKEAT/0525/03)where the employer dismissed his employee after an affair exemplified this point. The employee claimed that the dismissal was on the ground of her sex because "but for" her being a woman the affair would never have occurred Rimer J. found that the dismissal was because of the breakdown of the relationship not because the employee was a woman. Although true that "but for" the sex there would have been no affair in the first place but, " It could, however, equally be said that there would have been no such affair "but for" the facts (for example) that she was her parents' daughter, or that she had taken up the employment with Lancehawk".

In Seide v Gillette Industries Ltd [1980] an employee had been moved to a different department to escape anti-Semitic harassment fell out (for non-racial reasons) with his colleagues in his new department, was disciplined and argued unsuccessfully that but for the earlier harassment he would not have been in the department where the problem arose.

Accordingly Judge Underhill rejected Mr Epstein's two-stage approach as misconceived, with the only question being whether the ground of, or reason for, Amnesty's decision not to appoint the Claimant because of ethnic origins. That Amnesty's decision was explicitly based on ethnic origin negated any need to further enquire about the mental processes of the employer.

The EAT upheld the employment tribunal decision finding that Amnesty International had discriminated against the claimant on the ground of her ethnic origins and contrary to the RRA 76.

The EAT dealt with the health and safety defence: