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 by the EAT: the Employment Tribunal was correct to find that this was direct discrimination.
Employment Appeal Tribunal decision
The EAT said 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. (See further the quote below.)
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 possibility that employers in such cases might be able to rely on the defence of “genuine occupational requirement” in the Race Relations Act, but this issue was not pursued by the employer in the present case.
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.
Two types of direct discrimination
The court said in some cases the ground of the action is inherent in the act itself, whereas in other cases the tribunal must look at the mental processes of the person alleged to be discriminating:
“33. In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself. If an owner of premises puts up a sign saying ‘no blacks admitted’, race is, necessarily, the ground on which (or the reason why) a black person is excluded. James v Eastleigh … is a case of this kind. There is a superficial complication, in that the rule which was claimed to be unlawful – namely that pensioners were entitled to free entry to the Council’s swimming-pools – was not explicitly discriminatory. But it nevertheless necessarily discriminated against men because men and women had different pensionable ages: the rule could entirely accurately have been stated as ‘free entry for women at 60 and men at 65’. The Council was therefore applying a criterion which was of its nature discriminatory: it was, as Lord Goff put it …, ‘gender based’. In cases of this kind what was going on inside the head of the putative discriminator – whether described as his intention, his motive, his reason or his purpose – will be irrelevant. The ‘ground’ of his action being inherent in the act itself, no further inquiry is needed. It follows that, as the majority in James v Eastleigh decided, a respondent who has treated a claimant less favourably on the grounds of his or her sex or race cannot escape liability because he had a benign motive.
34. But that is not the only kind of case. In other cases – of which Nagarajan [bailii.org] is an example – the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, i.e. by the ‘mental processes’ (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator’s action, not his motive: just as much as in the kind of case considered in James v Eastleigh, a benign motive is irrelevant…”
The EAT also considered (at para 37-39) 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.
Later courts have often cited the two types of direct discrimination quoted above. Also that passage was cited with approval by the Court of Appeal in Unite the Union v Nailard, 2018.