Employment Update October 2009: Discrimination

14 October 2009

Employment Group

Employer’s ‘benevolent’ motive irrelevant

In Amnesty International v Ahmed the claimant, who was ethnic Sudanese, worked for Amnesty and applied for promotion to work on their Sudanese desk. She was not appointed because she was Sudanese. However, Amnesty's decision was taken for decent reasons - that she might not be perceived as being impartial in her activities and on health and safety grounds because her ethnic background might make her more at risk if she had to work out in Sudan on Amnesty's behalf.

After looking at all the authorities, the EAT confirmed that, even where the employer says it is acting in the best interests of the employee, the employer's motive is irrelevant. Amnesty's decision had been based on an unlawful ground (race or ethnic origin). It had subjected the claimant to direct race discrimination.

The EAT considered the ‘health and safety’ defence. As racial discrimination was outlawed under European law, it was not possible for the employer to say that domestic legislation (in this case, the Health & Safety at Work Act 1974) could override it.

Point to note -

  • Although the claimant succeeded in her discrimination claim, the EAT rejected her claim that, as a result of the unlawful discrimination, she was entitled to resign and claim constructive dismissal. It said that there was a distinction to be drawn between a 'benevolent' breach of the discrimination laws and a breach of the implied obligation of trust and confidence that should exist between employer and employee. It could not possibly be said that, in these circumstances, Amnesty was in breach of that duty.

Clarification on burden of proof

In his decision in the recent case of Edozie v Group 4 Securicor plc the President of the Employment Appeal Tribunal has taken the opportunity to say that there is really only one test that any discrimination claim has to pass before it can succeed.

There had been some doubt about this because some claims were not expressly covered by the relevant statute when the test was brought into line with the relevant European Directive. One such claim was a Race Relations Act claim based on colour, rather than ethnic or national origin. Mr Edozie’s claim failed at the employment tribunal and he suggested on appeal that it was because the tribunal had applied the wrong burden of proof - his claim was based on the fact that he was black.

The EAT disagrees - when deciding such a claim, instead of concerning itself with the wording of the legislation, the tribunal should consider the same facts and produce the same result, applying the Igen v Wong test, as in any other discrimination claim

Points to note –

  • The Igen v Wong test is a two-part test. First the claimant must show facts from which it could be inferred that there had been unlawful discrimination. The burden of proof then passes to the respondent to show a non-discriminatory reason for the treatment complained of. If the respondent is unable to do so, the claim will succeed. 

  • This decision is a welcome victory for common sense in the interpretation of discrimination law but nothing stays still for long in this area of the law. The Equality Bill is on its way through parliament and both Harriet Harman, Minister for Women and Equality, and Trevor Phillips, head of the Equality and Human Rights Commission, are on record as saying that they expect it to become law before the general election, whenever that may be, and to come into effect in the autumn of 2010. We will keep you informed of its progress and the implications that it may have for your business.