The EAT held that there is direct discrimination even if the employer had ‘benign’ motives for not appointing a person on the prohibited ground. In this case it was their ethnic origin.
Employment Appeal Tribunal, 2009. Full decision: www.bailii.org/uk/cases/UKEAT/2009/0447_08_1308.html
This was a race discrimination case. The question was whether it was lawful for Amnesty to refuse to appoint a Sudanese woman to the post of Sudanese researcher. Amnesty believed the appointment of a person of her ethnic origin would compromise the organisation’s perceived impartiality (and thus its effectiveness) and would expose the claimant ,and those with her, to an increased safety risk when visiting Sudan or the camps in Eastern Chad.
Held: the Employment Tribunal was correct to find that this was direct discrimination.
It was important to bear in mind that the subject of the inquiry is the ground of, or reason for, the employer’s action, not his motive. A benign motive was irrelevant, as in James v Eastleigh Borough Council.
The EAT also considered how far it is correct to say, as in James v Eastleigh BC, that there is direct discrimination if the treatment would not have happened ‘but for’ the claimant’s race, gender, disability etc.
The EAT felt some unease at being required to reach its conclusion. It was not difficult to conceive of cases where it would be indisputable that the national or ethnic origin of an employee would make it practically impossible for him or her to work effectively in a particular overseas country. However, the legislature – both in the UK and in Brussels – had deliberately set its face against allowing any defence of justification in cases of direct discrimination. The EAT raised the issue of whether employers in such cases might be able to rely on the defence of “genuine occupational requirement” in the Race Relations Act, but the issue was not pursued.
The employer had further argued that it had a defence under the Race Relations Act s.41 in that it had acted “in pursuance of any enactment”, because the risks to her safety would have meant that it was in breach of its duty as her employer under s.2(1) Health and Safety at Work Act 1974 (“HASWA”). The EAT said the tribunal had been entitled to find that appointing her would not breach HASWA on the facts. In the light of a new provision implementing the Race Directive, the EAT also questioned whether the s.41 defence could not have applied in any event.