Amnesty International v Ahmed

JurisdictionUK Non-devolved
CourtEmployment Appeal Tribunal
Judgment Date13 August 2009
Neutral CitationUKEAT/0447/08 ,UKEAT/447/08
Date13 August 2009

Employment Appeal Tribunal

Before Mr Justice Underhill, President, Ms P. Tatlow and Mr S. Yeboah

Amnesty International
Safety concern irrelevant in race discrimination

A North Sudanese claimant who was refused promotion to the role of Sudanese researcher for Amnesty International because it believed that the appointment of a person of her ethnic origin would compromise its perceived impartiality and would expose her to a safety risk when visiting Sudan and Easter n Chad, was discriminated against on the ground of her race and ethnic origin.

The Employment Appeal Tribunal so stated when dismissing an appeal by the claimant, Miss B. Ahmed, from a decision of a central London employment tribunal in July 2008 upholding her claim of race discrimination against her employer, Amnesty International, contrary to section 1(1)(a) and 4(2)(b) of the Race Relations Act 1976.

The tribunal had also rejected the defence raised by Amnesty under section 41(1) of the 1976 Act, that appointing the claimant would have put it in breach of the Health and Safety at Work Act 1974.

Mr Paul Epstein QC for Amnesty; Mr Darius A'Zami, representative, assigned by the Free Representation Unit, for the claimant.

THE PRESIDENT said that it was argued that the tribunal was wrong to have treated the only question as being whether "but for" the claimant's ethnic origins she would have been promoted and that it should have asked the further "reason why" question which involved an examination of t he mental processes of the putative discriminator.

Had it done so it would have concluded that the reason was not race but that the appointment would give rise to a risk that Amnesty would not be perceived as impartial and a risk to the claimant's safety.

The basic question in a direct discrimination case was what the grounds for the treatment complained of were. In some cases the ground or reason was inherent in the act itself.

James v Eastleigh Borough CouncilELR ([1990] 2 AC 751) was a case of that kind and what was going on in the head of the putative discriminator was irrelevant. In other cases of which Nagarajan v London Regional TransportTLRELR (The Times July 19, 1999; [2000] 1 AC 501), w as an example, the act itself was not discriminatory but was rendered so by a discriminatory motivation.

Even in such a case the subject of the inquiry was the ground of or reason for the discriminator's action not his motive. There was no difficulty in reconciling the two cases...

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