An Amnesty International "campaigner" of north Sudanese ethnic origin specialised in researching about Sudan. In 2007 she applied and was considered for promotion to become a "researcher" for Sudan. She was not appointed despite being the only candidate recommended by the interview panel and resigned claiming unfair (constructive) dismissal. She applied to an employment tribunal arguing that the decision not to appoint her was unlawful discrimination (direct and/or indirect discrimination) contrary to s.4 of the Race Relations Act 1976. Age discrimination under regs. 3 and 7 of the Employment Equality (Age) Regulations 2006 was also alleged. |
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:
S. 1 (1) (a) of the 1976 RRA:
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  endorsing this test. He argued that after Nagarajan v London Regional Transport  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  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  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:
The refusal was alleged to constitute indirect racial discrimination. And the HoL refused a defence under s. 41 (1) (b) that the decision used powers conferred by a statutory instrument. Balcombe LJ said:
The Hampson approach was applied in Olatokun v Ikon Office Solutions (UKEAT/0074/04) where an employer required an employee to produce his passport. Despite the racial discrimination the defence under s. 41 was valid because employers are obliged to require proof of immigration status from potential employees (s. 8 of the Asylum and Immigration Act 1996)
Where discriminatory acts are not required by statute but are "necessarily" done in compliance with a statutory obligation Hampson and Goba would allow for the defence to apply.
Even where the statutory provision relied on is general the defence can be used successfully in conjunction with s. 2 (1) of HASWA as in Page v Freight Hire (Tank Haulage) Ltd.  ICR 299 where a female lorry driver complained of sex discrimination when not allowed by her employer to drive lorries carrying an embryotoxic chemical (the manufacturer had advised women of child-bearing age avoid being exposed to it).
The Equal Opportunities Commission had argued that the standard of proof required of an employer seeking to rely on the defence. The Commission's position was that the employers had to show "that there is no other way of protecting [the] woman other than" by subjecting her to the detriment complained of, and that that must be demonstrated by reference to an absolute standard, irrespective of any limits on the employer's knowledge or understanding of the safety risk.
Slynn J. rejected the Equal Opportunities Commission's argument on the standard of proof, that that the employers needed to show that there was no other way of protecting the woman saying it was enough that an employer only needed to show that the act complained of was necessary on the information available.
The Eat upheld the ET's decision that that Amnesty's argument that the Claimant could not safely be sent to Chad could not be supported (the interviewing panel was satisfied she could and therefore the Tribunal could conclude that the Claimant's appointment would not be in breach of s. 2 (1).
Regarding the allegation of indirect discrimination:S. 1 (1A) of the 1976 Act states:
"A person also discriminates against another if .. he applies to that other a provision, criterion or practice ('PCP')which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but -
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim."
The PCP was the conflict of interest policy that the Claimant argued precluded her from applying for jobs in Sudan and Amnesty's first argument was that the wrong pool was used by the ET for the PCP. It limited the pool to those applying for the researcher post for Sudan instead of all applicants for researcher posts. The conflict of interest policy being a general Amnesty policy, and not one limited to Sudan.
Mr Epstein agreedent that the reference to the "pool" was a red herring and the EAT accepted that the Tribunal was right to focus on the application of the conflict of interest policy in the Claimant's particular case.
Constructive Dismissal was also claimedFor this to succeed the claimant needed to show that under s. 95 (1) (c) of the Employment Rights Act 1996 she was Amnesty's actions entitled her to resign without notice. This needs showing that the employer committed a repudiatory breach of the contract of employment.
Known as the "Malik term" implied into the contract of employment by default saying,
The EAT found that where (as per Elias J. in Hagen v ICI Chemicals and Polymers Ltd ) the 'Malik' term of the breach of the breach and damage of relationship was shown,then it must also act as a repudiation of the contract.
The EAT stressed that discriminating did not necessarily mean committing a repudiatory breach of contract, although this was mostly the case.
The EAT did not believe Amnesty had acted 'in a manner likely to destroy or seriously damage the relationship of trust and confidence between himself and the employee'(Malik) even if she 'may have been very disappointed and upset'. This was different to the situation in Malik. Amnesty had acted seriously, had not intentionally set to discriminate against the claimant and had encouraged her to apply for other jobs. The EAT therefore rejected the claim of unfair dismissal.
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