Miss Ahmed, a UK national of Northern Sudanese ethnic origin, worked for Amnesty International (“AI”). She was temporarily in the post of Sudan Researcher but applied for this on a permanent basis. AI’s senior staff considered whether it would be appropriate for Miss Ahmed to be appointed but decided that her ethnicity would compromise AI’s perceived impartiality and also expose her and her colleagues to increased safety risks when travelling to Sudan or Eastern Chad. She was given the opportunity to apply for other similar posts but she resigned and claimed race discrimination and unfair constructive dismissal. She succeeded on both grounds at the Employment Tribunal.
At the Employment Appeal Tribunal (EAT) in Amnesty International v Ahmed it was confirmed that an employer who treats an employee less favourably on racial grounds cannot escape liability for direct discrimination simply because the employer has a benign motive for its actions.
The EAT made the point that in cases where the employer’s action is inherently discriminatory (as in Miss Ahmed’s case) because there is no other reason for the conduct than because of the employee’s ethnicity or sex (or other protected quality) the motive is irrelevant but where it is necessary to establish whether or not there has been discrimination then an investigation of motives may be, probably will be, necessary.
AI's had tried to argue that they would breach a statute by appointing Miss Ahmed, because they would be in breach of the Health and Safety at Work etc Act 1974 (HSWA) if they had exposed Miss Ahmed to the risks identified. The EAT disagreed - unless AI could show its discriminatory act was reasonably necessary to comply with its statutory health and safety obligations. Against AI's views, the EAT found that AI could have appointed Miss Ahmed without breaching its duty under the HSWA, quite apart from which this defence of is no longer available, pursuant to the EC Race Directive, to an employer who has discriminated on the grounds of race /ethnic /national origin.
However, reversing the Tribunal’s decision on unfair dismissal the EAT found that AI’s act of direct discrimination did not amount to a breach of the implied contractual duty of mutual trust and confidence. AI had given careful thought to the matter and genuinely showed no racial prejudice (n.b not “discrimination”) in this process. There was no evidence to suggest that AI had acted without 'reasonable and proper cause' or in a manner likely to seriously damage its relationship with the employee.
So, AI’s discrimination could be said to be of a largely technical sort only and by and large AI were vindicated for their conduct. Unfortunately, the law report does not disclose what if any compensation Miss Ahmed was awarded for the discriminatory conduct. On the basis of the EAT decision it should have been quite modest although on the basis of the Employment Tribunal decision it could have been more substantial.
