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Benign motive no defence to race discrimination

Posted on 16th September 2009
Case law

The EAT held that the employer's benign motive did not avoid a finding of direct race discrimination but the employer was not guilty of constructive unfair dismissal.

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It was irrelevant that Amnesty had been motivated by health and safety and conflict of interests concerns

Amnesty International v Ahmed


Amnesty International did not promote their employee, Miss Ahmed, a UK national of northern Sudanese ethnic origin. Miss Ahmed had applied for the position as a researcher in Sudan. Although her promotion was recommended by the recruiting panel, a director of Amnesty did not appoint Miss Ahmed. He was motivated by concerns about Miss Ahmed's personal safety if she travelled to Sudan. He felt her appointment could prejudice Amnesty's perceived impartiality in the Sudan region.

Amnesty took care reaching its decision. It sent a letter to Mrs Ahmed explaining the reasons for not appointing her.

Miss Ahmed resigned and claimed race discrimination and constructive unfair dismissal in the employment tribunal.

The employment tribunal held the decision not to appoint Miss Ahmed amounted to direct discrimination. It relied on the "but for" test - but for Miss Ahmed's ethnic origin she would have been appointed. Amnesty's motives, even though well intentioned, offered no defence. The tribunal also held that Amnesty's decision amounted to a breach of the implied term of mutual trust and confidence because of its discriminatory nature. The tribunal held Miss Ahmed had been constructively and unfairly dismissed.

Amnesty appealed arguing that the tribunal should have taken into account Amnesty's motives for not appointing Miss Ahmed. Also Amnesty complained that the finding of constructive unfair dismissal was wrong because there had been no breach of the implied term of mutual trust and confidence because Amnesty had reasonable and proper cause for its actions.

The decision

The EAT reviewed the case law relating to the "but for" test and employer's motive. It concluded that there is no two stage test in deciding the reason for an employer's treatment of an employee. Once the tribunal had decided that the ground for the treatment had been Miss Ahmed's ethnic origins, this was the end of the matter. It was irrelevant that Amnesty had been motivated by health and safety and conflict of interests concerns. Amnesty had been guilty of direct race discrimination.

The EAT overturned the finding of constructive unfair dismissal. It held that whilst in most cases discriminatory conduct will amount to a breach of this implied term, it will not automatically. Amnesty had not conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence. The EAT noted that Amnesty's reasons were genuine and it had acted after careful and thorough process. It had also written to Miss Ahmed making it clear that its decision did not reflect on her personally and it encouraged her to apply for similar posts.

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