Amnesty International v Ahmed EAT/0447/08

race discrimination | motive of employer | health and safety concerns

The Employment Appeal Tribunal (EAT) has held that an employer directly discriminated against an employee when it did not promote her because of concerns that the new position would put her in danger because of her race.

Ms Ahmed, who is of northern Sudanese origin, worked for Amnesty International. She applied for a promotion to the post of Sudanese researcher, but her application was rejected on the grounds that her ethnicity would compromise Amnesty International's impartiality and expose Ms Ahmed and her colleagues to increased safety risks when travelling in Sudan or eastern Chad. Ms Ahmed resigned and claimed, among other things, race discrimination.

An employment tribunal found that the employer's actions constituted direct race discrimination under s.1(1) of the Race Relations Act 1976. It rejected the argument that its actions were allowed under s.41(1) of the Race Relations Act 1976, which provides a defence where the employer does something that is discriminatory "in pursuance of any enactment". The employer argued that, by sending Ms Ahmed to Sudan or eastern Chad, it would have breached its duty under s.2(1) of the Health and Safety at Work Act 1974.

The EAT upheld the employment tribunal decision. It rejected the employer's argument that the tribunal should have adopted a two-stage test of asking the following:

• Was there less favourable treatment but for the employee’s race?
• If so, what, considering the mental processes of the alleged discriminator, was the reason for that difference in treatment?

The EAT said that the only question that the tribunal had to ask was whether or not the ground for the employer's actions was the employee's race. Once this was established, the employer's reasons for the discriminatory action become irrelevant. The employer's motives become relevant only where the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation that leads the supposed discriminator to do the act. An employer that has treated a claimant less favourably on the grounds of his or her race cannot escape liability because it had a benign motive.

The EAT also decided that the employer did not have a defence under s.41(1) of the Race Relations Act 1976. It would be intolerable if an employer were liable under the Race Relations Act 1976 for the doing of an act in circumstances where, if it had not done it, it would have been in breach of its duty under s.2(1) of the Health and Safety at Work Act 1974. However, the employer in this case had not established that it could not employ the employee as the Sudan researcher without being in breach of its health and safety duty. The employment tribunal did not regard the difficulties, including the safety difficulties, involved in the employee’s appointment as insuperable.

Case transcript of Amnesty International v Ahmed (Microsoft Word format, 185K) (on the EAT website)

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