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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Amnesty International v Ahmed [2009] UKEAT 0447_08_1308 (13 August 2009)
URL: http://www.bailii.org/uk/cases/UKEAT/2009/0447_08_1308.html
Cite as: [2009] UKEAT 0447_08_1308, [2009] ICR 1450, [2009] IRLR 884, [2009] UKEAT 447_8_1308
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| At the Tribunal | |
| On 27 April 2009 | |
Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MS P TATLOW
MR S YEBOAH
AMNESTY INTERNATIONAL APPELLANT
MISS B AHMED RESPONDENT
| APPELLANT | |
| RESPONDENT |
Transcript of Proceedings
JUDGMENT
REVISED
- The Claimant was born in 1979. Her parents are both from Sudan. Questions of ethnic identity in Sudan are complex and we need for the purpose of this appeal say no more than that the Claimant would, by reason of her parents' background and her own ethnic characteristics, be commonly identified within Sudan as coming from the north of the country or - as it is sometimes, albeit inaccurately, described – as being an "Arab". At the time of her birth her parents were living in Qatar, but they returned to Sudan in 1984 and the Claimant had her early schooling there. In 1991 they came to the United Kingdom, where she has lived ever since. She became a UK national in 1998.
- In January 2005 the Claimant started employment with Amnesty International as a "campaigner" in relation to Sudan. In the summer of 2007 she was considered for promotion to the position of "researcher" for Sudan, but she was in the end not appointed. In consequence of that decision she resigned. On 12 October 2007 she brought proceedings in the Employment Tribunal claiming that the decision not to appoint her constituted unlawful discrimination contrary to s. 4 of the Race Relations Act 1976 – alleging in the alternative both direct and indirect discrimination – and/or that it constituted discrimination on account of her age and was accordingly unlawful by virtue of regs. 3 and 7 of the Employment Equality (Age) Regulations 2006. She also claimed that she had been unfairly (constructively) dismissed.
- By a Judgment and Reasons sent to the parties on 30 July 2008 an Employment Tribunal sitting at London Central, chaired by Employment Judge Pearl, upheld the claims of direct race discrimination and unfair dismissal. The claim of age discrimination was dismissed. The Tribunal made it clear that if it had not upheld the claim of direct discrimination it would still have found for the Claimant on the basis of indirect discrimination.
- Amnesty appeals against that decision. There is no cross-appeal as regards the dismissal of the age discrimination claim. The Claimant has, however, made it clear that if the appeal succeeds on the question of direct discrimination she would contend that the finding in her favour under the 1976 Act should nevertheless be upheld on the basis of indirect discrimination, in accordance with the Tribunal's alternative reasoning.
- Amnesty has been represented before us by Mr Paul Epstein QC: he did not appear before the Tribunal, where Amnesty was represented by Mr Mark Emery of Bindmans. The Claimant had been represented both here and below by Mr Darius A'Zami, instructed through the Free Representation Unit.
- The essential facts are not in issue, and they can accordingly be given in fairly summary form.
- The Claimant was, as we have said, first employed by Amnesty in January 2005 as a campaigner on issues relating to Sudan, particularly the crisis in Darfur. She had previously worked for a body called the Sudan Organisation against Torture. In March 2007 she was given an acting role as researcher on Sudan, which is a more responsible post than campaigner. Shortly afterwards applications were invited for the permanent post of Sudan researcher. At or about the beginning of May the Claimant was selected as one of a shortlist of three candidates.
- Amnesty has always been concerned about the problems that may arise if staff of a particular nationality or national or ethnic origin undertake work in, or related to, the country of which they are a national or from which they are perceived as having originated. There are two, albeit related, aspects to the potential problems. One is that the impartiality of the staff in question, or in any event their perceived impartiality, may be prejudiced by their connections with the country in question: that would not only reduce their effectiveness in their role but also have implications for Amnesty's own reputation for neutrality, which is obviously of fundamental importance to it. That is particularly liable to be a problem where, to quote from an internal document of Amnesty referred to by the Tribunal:
- Until 2002 the conflict of interest problem was addressed by a blanket "Work on Own Country" ("WOOC") rule, which prohibited staff from working on "their own" countries. That rule was abolished in 2002, but the potential for conflict of interest in relation to at least some countries clearly remained. The need for a formal policy in relation to conflicts of interest was recognised, and a policy was under discussion at the period relevant to these proceedings though nothing had been finalised. It is apparent, and Amnesty was certainly advised, that any WOOC rule or policy was likely to raise delicate issues in relation to the race discrimination legislation.
- It is Amnesty's case – and is in truth self-evident – that the current situation in Sudan is such that there would be a potential conflict of interest problem for a member of staff of Sudanese nationality or national origin assigned to that country. As is well-known, there are serious tensions – of both a political and an ethnic character – between the north and the south of Sudan; and any person from Sudan is liable to be classified by other Sudanese as being either a northerner (or "Arab") or a southerner. When he became aware of the vacancy for a permanent Sudan researcher, which is a high-profile post within Amnesty, and of the Claimant's candidacy, the Senior Director for Research and Regional Programmes at Amnesty's International Secretariat, Mr Claudio Cordone, became particularly concerned (though there were other appointments in the pipeline raising similar issues). His concerns on the issue of impartiality need not be elaborated, but we should set out what the Tribunal said (at para. 12 of the Reasons) about the safety aspect:
- In late April and early May 2007 Mr Cordone discussed the problem with Mr Van der Borght, the Director of Amnesty's Africa programme, and Mr Hondora, the Deputy Programme Director for Africa, who was the Claimant's line manager and prima facie responsible for the recruitment of the Sudan researcher. The Tribunal refers at para. 15 of the Reasons to an e-mail from Mr Hondora dated 3 May and comments that it:
- There were initial telephone interviews with the Claimant and other candidates on 14 May 2007. Following those interviews Mr Hondora sent Mr Van der Borght what the Tribunal described as a "detailed and impressive" e-mail raising concerns about the application of what he described as "WOOC practice". The issue was discussed by Mr Cordone in two meetings, on 16 and 17 May, the first with all the managers from the Africa programme and the second with other Regional Programme Directors. The Tribunal described the latter meeting as involving "a general discussion about conflicts of interest, security aspects and … how to avoid discrimination" and quoted the minutes as acknowledging "the responsibility of AI as an employer towards the staff members concerned …". It was decided that Mr Cordone, rather than the recruiting panel, should take the final decision about the Sudan researcher post.
- The Claimant was interviewed by the panel again on 2 and 8 June 2007. By the second interview it was plain that she was the sole candidate under consideration, and, while no offer was made, it seems that it was apparent to her that that was the case. It also appears that she, not unnaturally, had the impression that the decision would be taken by the recruiting panel and that she was not told that the panel's recommendation would be subject to a further review by Mr Cordone. On 18 June Mr Hondora sent Mr Cordone an e-mail informing him that the panel's choice was the Claimant. In the e-mail he dealt in detail with the conflict of interest problem, including the possibility that the Claimant would be at heightened risk when and if she travelled to Sudan or to the camps in Eastern Chad housing refugees from Darfur. He said, inter alia:
- Having reviewed those views, Mr Van der Borght produced an e-mail dated 1 July 2007, which the Tribunal (at para. 33 of the Reasons) summarises as follows:
- In the meantime the Claimant had been interviewed on 29 June by a "review panel" chaired by Mr Cordone. This met again on 2 and 10 July. The eventual decision was that the Claimant should not be appointed. Mr Cordone wrote to her on 13 July. We should set out that letter in full:
- There were evidently different views within Amnesty as to the extent of the conflict of interest problem raised by the Claimant's potential appointment. Mr. Hondora's panel took one view and Mr Cordone's another. But it is clear from documents referred to above and the Tribunal's findings generally (which took account also of full and careful witness statements both of Mr Cordone and of Ms Bloomfield, Amnesty's Director of Human Resources, which were unchallenged, at least as regards fact) that the issue was considered with great conscientiousness by all concerned. Although the Tribunal made a critical observation about the mention by some of the consultees of criticisms of the Claimant's performance there is no suggestion that these in any way undermined the genuineness of the reasons given for the eventual decision.
- Direct discrimination. It was the Claimant's primary case before the Tribunal that the decision not to appoint her as Sudan researcher, being based on her national or ethnic origin[1], constituted so-called "direct" discrimination, i.e. discrimination within the meaning of s. 1 (1) (a) of the 1976 Act. It is common ground that such discrimination would (subject to the "s. 41 defence" referred to below) be unlawful by virtue of s. 4 (2) (b), which prohibits discrimination by an employer in, among other things, the way he affords employees access to promotion. Amnesty's answer was twofold:
- Indirect discrimination. It was the Claimant's alternative case before the Tribunal that Amnesty had, in effect if not yet formally, adopted a "conflict of interest policy"; that, generally, that policy made it generally more difficult for employees of a particular nationality or national origin to be appointed to positions involving work relating to "their own" country; and, specifically, that it made it more difficult for people of Sudanese nationality or national origin to be appointed to Sudan-related posts. She contended that the application of that policy in her case constituted so-called "indirect" discrimination, i.e. discrimination within the meaning of s. 1 (1A) of the 1976 Act. As we have already noted, the Tribunal held that if it had not found Amnesty to have discriminated against the Claimant directly, it would have found it to have done so indirectly. Amnesty challenges that conclusion.
- Unfair dismissal. Finally, the Claimant contended, and the Tribunal accepted, that Amnesty's decision not to appoint her to the post of Sudan researcher constituted a breach of her contract of employment entitling her to resign and claim constructive dismissal. That too is in issue on this appeal.
- Accordingly there are four issues – namely (A) direct discrimination; (B) the s. 41 defence; (C) indirect discrimination; and (D) constructive dismissal. We will consider them in turn.
- S. 1 (1) (a) of the 1976 Act reads as follows:
- The Tribunal's conclusions on the issue of direct discrimination appear at paras. 39-50 of the Reasons. At paras. 39-46 it reviews in some detail the submissions of the parties about the characterisation of the hypothetical comparator and what it describes as "causation" (though that is a term whose use in this context has been deprecated – see per Lord Nicholls in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065, at p. 1072C (para. 29)). It also referred to the line of authorities concerning third-party pressure to discriminate, in particular Din v Carrington Viyella Ltd. [1982] ICR 256 and R v Commission for Racial Equality ex p. Westminster City Council [1984] ICR 770. We need not set these paragraphs out here since the points discussed in them do not appear in the end to have been central to the Tribunal's reasoning and are certainly not significant for the issues on this appeal.
- The meat of the Tribunal's decision is at paras. 47-50, which read as follows:
- We make the following points about those paragraphs of the Reasons:
- At para. 4 of Amnesty's grounds of appeal it is contended that the Tribunal "erred … in its construction of the hypothetical comparator". Mr Epstein abandoned this contention in his skeleton argument. He was well-advised to do so. Since the decision in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, and specifically the speech of Lord Nicholls (see paras. 7-13, at pp. 340-342), it is clear that consideration of what should be the characteristics of a hypothetical comparator is often a less useful way of addressing the questions raised by an issue of direct discrimination than focusing on the fundamental question of the reason for the act complained of. [2]
- The real challenge relied on by Amnesty is that pleaded at paras. 5 and 6 of the Notice of Appeal. This was more fully and clearly developed in Mr Epstein's skeleton argument and his oral submissions before us. His essential point was that the Tribunal had treated the only question as being whether "but for" the Claimant's ethnic origins she would have been appointed to the post - as he pointed out, that was the primary way that it expressed its conclusion at the beginning of para. 48; and that that was an error of law. He acknowledged that in their well-known speeches in James v Eastleigh Borough Council [1990] 2 AC 751 Lord Bridge and Lord Goff had appeared to endorse such a test; but he contended that the line of later authorities beginning with Nagarajan v London Regional Transport [2000] 1 AC 501 had made clear that it was also necessary to ask a further "reason why" question, which involved an examination of the mental processes of the putative discriminator. As he put it in his skeleton argument:
- Before considering that submission we should briefly recapitulate the reasoning of James v Eastleigh and of Nagarajan.
- In James v Eastleigh the plaintiff was a man of 61. He and his wife, who was the same age, visited a Council swimming pool which charged for entry but allowed free admission to pensioners. Because the pensionable age was 65 for men but 60 women, his wife got in free but he had to pay. He brought proceedings in the County Court claiming that the Council had discriminated against him on the grounds of his sex, contrary to the Sex Discrimination Act 1975. A majority in the House of Lords upheld his claim. The key passages in their reasoning can be identified as follows:
- In Nagarajan the applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim of victimisation contrary to s. 2 (1) of the 1976 Act, finding that the decision-makers had been "consciously or subconsciously" influenced by knowledge of his previous complaints. That decision was overturned on appeal but restored by the House of Lords. For present purposes it is sufficient to set out the relevant passage from the speech of Lord Nicholls, who said, at pp. 510-511:
- We should refer also to Khan (see para. 22 above). We need not in this case summarise the facts, but the following passage from the speech of Lord Nicholls (at para. 29) requires quotation:
- It seems that the relationship between the approaches taken in James v Eastleigh on the one hand and Nagarajan (as further explained in Khan) on the other is still regarded by some tribunals and practitioners as problematic. We do not ourselves believe that there is a real difficulty provided due attention is paid to the form of the alleged discrimination with which the House of Lords was concerned in both cases.
- To begin at the beginning. The basic question in a direct discrimination case is what is or are the "ground" or "grounds" for the treatment complained of.[3] That is the language of the definitions of direct discrimination in the main discrimination statutes and the various more recent employment equality regulations. It is also the terminology used in the underlying Directives: see, e.g., art. 2.2 (a) of Directive EU/2000/43 ("the Race Directive"). There is however no difference between that formulation and asking what was the "reason" that the act complained of was done, which is the language used in the victimisation provisions (e.g. s. 2 (1) of the 1976 Act): see per Lord Nicholls in Nagarajan at p. 512 D-E (also, to the same effect, Lord Steyn at p. 521 C-D).[4]
- In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself. If an owner of premises puts up a sign saying "no blacks admitted", race is, necessarily, the ground on which (or the reason why) a black person is excluded. James v Eastleigh is a case of this kind. There is a superficial complication, in that the rule which was claimed to be unlawful – namely that pensioners were entitled to free entry to the Council's swimming-pools – was not explicitly discriminatory. But it nevertheless necessarily discriminated against men because men and women had different pensionable ages: the rule could entirely accurately have been stated as "free entry for women at 60 and men at 65". The Council was therefore applying a criterion which was of its nature discriminatory: it was, as Lord Goff put it (at p. 772 C-D), "gender based".[5] In cases of this kind what was going on inside the head of the putative discriminator – whether described as his intention, his motive, his reason or his purpose – will be irrelevant. The "ground" of his action being inherent in the act itself, no further inquiry is needed. It follows that, as the majority in James v Eastleigh decided, a respondent who has treated a claimant less favourably on the grounds of his or her sex or race cannot escape liability because he had a benign motive.
- But that is not the only kind of case. In other cases – of which Nagarajan is an example - the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, i.e. by the "mental processes" (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator's action, not his motive: just as much as in the kind of case considered in James v Eastleigh, a benign motive is irrelevant. This is the point being made in the second paragraph of the passage which we have quoted from the speech of Lord Nicholls in Nagarajan (see para. 29 above). The distinctions involved may seem subtle, but they are real, as the example given by Lord Nicholls at the end of that paragraph makes clear.
- Lord Goff himself in James v Eastleigh recognised the distinction between the two types of case. In the passage from his speech quoted at para. 28 (3) above he characterised them as, on the one hand, cases where a "gender-based criterion" was applied and, on the other, cases where the complainant's sex is "the reason why the defendant acted as he did" or where the treatment occurs "because of his or her sex": he gives as an example of the latter case where "the defendant is motivated by an animus against persons of the complainant's sex" (p. 772 C-D). (The distinction is again referred to in the second passage, quoted at para. 28 (4).) Although the terminology used is not entirely consistent with Lord Nicholls'[6], it is clear that the distinction intended is essentially the same as we have identified above: in the former case, the grounds for the putative discriminator's action can be found in the "criterion" itself, whereas in the latter it is necessary to look into his mental processes (which will include his motivation though not his motive).
- There is thus, we think, no real difficulty in reconciling James v Eastleigh and Nagarajan. In the analyses adopted in both cases, the ultimate question is – necessarily – what was the ground of the treatment complained of (or – if you prefer – the reason why it occurred). The difference between them simply reflects the different ways in which conduct may be discriminatory.
- We turn to consider the "but for" test recommended in the second of the passages which we have quoted from Lord Goff's speech in James v Eastleigh: see para. 28 (3) above. The passage in question forms part of the final section of the speech, and follows the section (at pp. 772-3) where he has expressed his conclusion on the primary issue as regards direct discrimination. That section begins (at p. 773C):
- Against that background, it is, we believe, clear that Mr Epstein's submission set out at para. 28 above is misconceived. There is no "two-stage approach" such as he propounds. The only question for the Tribunal was whether the ground of, or reason for, Amnesty's decision not to appoint the Claimant as Sudan researcher was her ethnic origins. Once it had found that that was the case – as it did: see para. 24 (1) above – that was the end of the matter: specifically, the fact that its reason for not being prepared to appoint a person with the Claimant's ethnic origins was its concern about conflict of interest is irrelevant. If it were necessary to categorise the case as "James–type" or "Nagarajan–type", it seems to us plainly to be the former: Amnesty's decision was explicitly based on the fact that she was by origin from (northern) Sudan, and any further enquiry into the mental processes of Mr Cordone or his colleagues is unnecessary. But the point would be the same even if it were characterised as Nagarajan–type: the relevant mental processes do not include any reason or motive, however legitimate or laudable, which Amnesty may have had for not wanting to appoint a Sudanese northerner.
- We should say that Mr Epstein referred us to two authorities which he submitted supported his approach – Martin v Lancehawk, to which we have already referred, and R (Elias) v Secretary of State for Defence [2005] IRLR 788.[8] But we found nothing in either of them which assisted him. Martin contains (at paras. 18-27) an analysis by Rimer J. of James, Nagarajan and Khan which seems to us entirely consistent with our own.[9] In Elias the Court was concerned with a scheme for compensating persons imprisoned by the Japanese between 1941 and 1945, the benefits of which were extended to those who were born in the UK or had a parent or grandparent born in the UK: the issue (so far as relevant) was whether that criterion was directly discriminatory on grounds of national origin. It was common ground that it was not as such a criterion based on national origin, because place of birth and national origin are not identical concepts; but the claimant sought to rely on James v Eastleigh on the basis that they came in practice to the same thing. Elias J. rejected that argument, holding that although a criterion of national origin would very likely have produced a similar outcome to that which was in fact adopted, the reasoning in James required that they be inherently identical: see at paras. 45-51. We respectfully agree with that reasoning, but we do not believe that the point has any relevance to the present case.
- In our judgment therefore the Tribunal was right to hold that the Claimant had been discriminated against on the ground of her ethnic origins.
- As a result of an observation by Mr Epstein when the judgment was circulated in draft our attention was drawn to an aspect of the s. 41 issue which had not been raised in argument before us. Since, on the view which we had taken, it could have no impact on the outcome of the case, and in view of the time already elapsed since the hearing, we have not sought further submissions and have preferred to proceed primarily on the basis of the judgment as drafted; but the new point is explained at para. 56 below and, as will be seen, it would if correct (as we believe it to be, though we have not heard argument) provide a complete answer to the s. 41 defence. Even with our taking this course, the late emergence of this complication has unfortunately caused some delay to the handing-down of the judgment.
- S. 41 (1) of the 1976 Act reads as follows:
- S. 41 (and the cognate provisions of the Sex Discrimination Act 1975) have attracted a certain amount of case-law, which the Tribunal described as "intricate". We would summarise its effect as follows.
- The starting-point must be the decision of the House of Lords in Hampson v Department of Education and Science [1991] 1 AC 171. In that case a teacher of Hong Kong national origin was refused qualified teacher status in this country because the Secretary of State had not exercised a power conferred on him by the relevant regulations to treat her Hong Kong qualifications as equivalent to the necessary UK qualifications. The refusal was alleged to constitute indirect racial discrimination. The Secretary of State argued, and the majority in the Court of Appeal had held, that the Secretary of State was entitled to rely on s. 41 (1) (b) because the decision complained of was taken under powers conferred by a statutory instrument. The House of Lords rejected this submission, upholding the dissenting view of Balcombe LJ that:
- The approach prescribed in Hampson is easy enough to apply in the straightforward case where the statutory obligation relied on is clear-cut and more or less directly enjoins the doing of the very act complained of. An example of such a case is Olatokun v Ikon Office Solutions (UKEAT/0074/04, BAILII: [2004] UKEAT 0074_04_1005 ), in which the employer had required a potential employee to produce a passport. The requirement was held to have been imposed on racial grounds, but, the employer was held to have a defence under s. 41 because s. 8 of the Asylum and Immigration Act 1996 (as construed by this Tribunal) obliged him to require proof of immigration status from potential employees. But there will also be cases where the act complained of is not, as such, required by the statute in question but is nevertheless done in the course of compliance with an obligation imposed by it. The logic of Hampson (and Goba) is that the defence will extend to any such act if, but only if, it was necessarily done in compliance with the obligation in question. In Goba Wood J said at p. 894 G-H:
- The peculiarity of the present case is that the statutory provision on which Amnesty wishes to rely, i.e. s. 2 (1) of HASWA, is in terms which are exceptionally general and whose application in any given case is rendered the more uncertain by the incorporation of a test of reasonable practicability. However, we cannot see that that makes any difference in principle. However wide its terms, s. 2 (1) creates an enforceable legal obligation. It would be intolerable if an employer were to be liable under the 1976 Act for the doing of an act in circumstances where, if he had not done it, he would have been in breach of duty under s. 2 (1) - and indeed be guilty of a criminal offence (see s. 33 (1) (a)). And it is not difficult to conceive of cases where persons of a particular nationality or ethnic origin may be subject to (or pose to others) particular health risks which require them to be treated differently from other persons.
- That view is supported by the decision in Page v Freight Hire (Tank Haulage) Ltd. [1981] ICR 299. In that case the complainant was a female lorry driver, aged 23, employed by a firm specialising in the carriage of chemicals. One of the chemicals carried by the firm was potentially embryotoxic, and the manufacturers warned that special precautions should be taken to avoid women of child-bearing age being exposed to it. Acting on that warning, the employers refused to allow the complainant to drive lorries carrying the chemical in question. She complained of sex discrimination. This Tribunal, Slynn J. presiding, disapproved that reasoning but upheld the decision on the basis that the employers had a defence under s. 51 (1) of the 1975 Act, which (as it then stood) excluded liability for an otherwise unlawfully discriminatory act "if it was necessary for [the respondent] to do it in order to comply with a requirement .... of an Act passed before this Act": that is not in identical terms to s. 41 (1) (a), but the effect is substantially similar. Slynn J. held that the employers were obliged to act in the way complained of in order to comply with their duty under s. 2 (1) of HASWA and could rely on the defence. In fact it appears to have been common ground before the Tribunal, which heard submissions not only from the parties but from the Equal Opportunities Commission, that acts done in order to comply with the HASWA duty fell in principle within the scope of s. 51 (1). The contentious issue was a different one, namely the standard of proof required of an employer seeking to rely on the defence. The Commission's position was that the employers had to show "that there is no other way of protecting [the] woman … other than" by subjecting her to the detriment complained of, and that that must be demonstrated by reference to an absolute standard, irrespective of any limits on the employer's knowledge or understanding of the safety risk. Slynn J. rejected that submission, holding that it was enough that the employers could show that the act complained of was necessary on the information available to them: see pp. 305-6, esp. at p. 306 A-B and D. It is important to emphasise, however, that the effect of that decision is not that the availability of the defence must be judged by reference to the reasonableness of the employer's assessment of the safety risk: the tribunal's task is to make its own assessment – doing so, however, on the basis of what the employer knew, or should reasonably have known, when the decision fell to be made.
- The Tribunal in the present case regarded Page as having been superseded by Goba and Hampson; but we do not agree. The issue in those cases was whether, for the purpose of s. 41 (1), an act was done in "pursuance of" an act or instrument merely because it was done in the discretionary exercise of statutory powers. That was not the issue in Page: the employers in that case, as in this, did not rely on the exercise of any discretion - rather, they claimed to have been under an obligation to act as they did. It is thus not surprising that Page was not cited either to the Tribunal in Goba or in the House of Lords in Hampson[10]. As for the particular question of whether it was necessary for the employers to show the relevant "necessity" by reference to some abstract absolute standard or by reference to the particular circumstances in which they found themselves, the answer given by Slynn J. seems to us perfectly consistent with Wood J.'s formulation in terms of what was "reasonably necessary".
- The Tribunal, as we have noted, understood the effect of Hampson to be that an employer could only rely on s. 41 (1) where the statute relied on created an obligation to do the very act complained of. Accordingly it held that the defence was unavailable on in this particular case (see para. 68 of the Reasons). For the reasons given above, we believe that that was wrong.
- However, it also considered by way of alternative what the position would be on the basis of Wood J's test in Goba – i.e. on what we have held to be the correct basis. It said, at para. 67:
- Mr Epstein pointed out that two distinct points are made in para. 67 – (a) that Amnesty had not shown that "it was reasonably necessary not to appoint the Claimant"; and (b) that it was acting on mixed motives, because of its concern about the issue of impartiality.
- So far as the second of those points is concerned, Mr Epstein submitted, and we agree, that it is, with respect to the Tribunal, plainly bad. If the company was obliged by statute to act in the way complained of, the fact that it had other reasons as well for doing so could make no difference.
- However, that leaves the first point, namely that Amnesty had not established that it could not employ the Claimant as the Sudan researcher without being in breach of its duty, under s. 2 (1) to ensure, so far as reasonably practicable, her health, safety and welfare at work. As to that, Mr Epstein pointed out that the Tribunal's reasoning appeared to accept that the Claimant as a northerner would be at substantial additional risk if she visited Eastern Chad (or Sudan itself, were that subsequently to be permitted); and that its finding that subjecting her to that additional risk would involve no breach of s. 2 (1) thus depended on its finding that there were "other more reasonable steps" that could have been taken. In that paragraph the Tribunal only in fact identifies one such step, namely to refrain from sending the Claimant to Eastern Chad, but Mr Epstein accepted that at para. 50 there is also a reference to the possibility of giving her "additional protection". He submitted that it was not open to the Tribunal to find that either of those measures was in fact available to Amnesty. Specifically:
- Mr A'Zami submitted that the issue before the Tribunal was not limited to the questions focused on by Mr Epstein. He had argued below that, even if the Claimant did have to visit Eastern Chad, the evidence did not justify the conclusion that Amnesty would thereby be put in breach of its duty under s. 2 (1) of HASWA. The evidence had been that a risk assessment was always carried out before any visit to a country where there were security risks, and Amnesty would no doubt take any precautions which were identified as necessary on such an assessment. A blanket conclusion that the Claimant could not safely be sent to Chad could not be supported. The interviewing panel had, as recorded in Mr Hondora's e-mail of 18 June, "directly questioned [the Claimant] about safety concerns and … [had] carefully weighed and was satisfied by her response": although the e-mail does not directly address the question of the Claimant visiting Chad (or Sudan itself, should that be permitted) it did record the fact that she had in the past "travelled to Sudan on mission". There was thus ample evidence on which the Tribunal could base a conclusion that the Claimant's appointment would involve no necessary breach of s. 2 (1). Amnesty's challenge was in essence a perversity challenge, but the conclusion reached by the Tribunal was plainly open to it; and in any event it was wrong in principle to allow a perversity challenge in circumstances where the notes of the relevant oral evidence had not been put before us.
- We have not found this part of the case easy; but in the end we are not persuaded that there is any error of law in the Tribunal's reasoning. Perhaps it was at fault in alluding to the possibility of additional protection being provided for the Claimant without having raised that possibility during the evidence. But that went to the question whether there really was an unacceptable risk, specific to the Claimant as a northerner, in sending her to Eastern Chad. The Tribunal was plainly rather sceptical about that, but it did not base its ultimate conclusion on that issue. Its central point was that even if there was such a risk it was open to Amnesty to avoid it by not sending the Claimant there. It specifically considered, at para. 50, Mr Epstein's point that the job could not be done without the Claimant visiting Eastern Chad but it found in terms that "this has not been established in the evidence to our satisfaction". Mr Epstein, as we have said, submitted that that finding was simply too bald and unreasoned to pass muster. But it has to be read with the following two sentences, from which it is clear that the Tribunal's conclusion was based on the fact that the original panel, which had itself considered these issues carefully, and some of Mr Cordone's consultees did not regard the difficulties – including the safety difficulties – involved in the Claimant's appointment as insuperable. We have been troubled as to whether that was an adequate basis for the Tribunal to reject Mr Cordone's evident strong view that the job required the Claimant to visit Eastern Chad; but we have reminded ourselves that, as Mr A'Zami pointed out, we have not seen the notes of the oral evidence, and we do not believe that we can say that the Tribunal's decision was not open to it.
- The new point referred to at para. 41 above depends on the effect of s. 41 (1A) of the 1976 Act, to which we were not referred in the course of argument. This provides that:
- It follows from our conclusion on issues (A) and (B) that we must uphold the decision of the Tribunal that Amnesty's failure to offer the Claimant the job of Sudan researcher constituted unlawful discrimination on racial grounds.
- We feel some unease at being required to reach this conclusion, which may have implications beyond the present case and for other employers whose employees are required to work abroad in situations of acute political or ethnic tension. Whether or not in this particular case Amnesty's concerns on the issue of impartiality (or perceived impartiality) were exaggerated, as the Tribunal believed (see para. 62 (3) below), it is not difficult to conceive of cases where it would be indisputable that the national or ethnic origin of an employee would make it practically impossible for him or her to work effectively in a particular overseas country. No doubt such cases will be rare, but where they do occur employers will be in a highly invidious position. However, subject to the point that we raise at para. 59 below, it seems that the law can offer no comfort. The legislature – both here and in Brussels - has deliberately set its face against allowing any defence of justification in cases of direct discrimination. No doubt a principled case can be made that concerns about racial prejudice displayed by third parties overseas should no more afford a defence to an employer than the equivalent fears about discriminatory conduct by third parties in this country (cf. Din (above)); but it is questionable whether the situations can be fairly equated.
- Because of our concerns about the implications of our decision we did raise with Mr Epstein and Mr A'Zami in the course of argument whether employers in such cases might not be able to rely on the defence of "genuine occupational requirement" under s. 4A of the 1976 Act. S. 4A was inserted into the Act by the Race Relations Act 1976 (Amendment) Regulations 2003 in order to implement art. 4 of the Race Directive. It is in the following terms:
- Since we have upheld the finding of direct discrimination we need not for the purpose of this appeal consider whether the Tribunal's alternative finding of indirect discrimination was correct. Nevertheless we briefly address it in case the matter goes further.
- S. 1 (1A) of the 1976 Act provides as follows:
- We need not set out the Tribunal's reasoning in full. In summary:
- Para. 8 of Amnesty's grounds of appeal pleads as follows:
- Those grounds are not very easy to follow, and Mr Epstein conceded in oral argument that the reference to the "pool" was a red herring. But, so far as we understood it, the real point being made was that the Tribunal was wrong to focus on the application of the conflict of interest policy in the Claimant's particular case: rather, it was submitted, it should have focused on the effect and justifiability of the policy when viewed overall. Mr Epstein pointed out that on an accurate reading of s. 1 (1A) the subject of each of heads (a)-(c) is the PCP itself and not its application in any particular case. But, whatever the syntax, we cannot accept that as a matter of law the effect of the PCP on the individual claimant is irrelevant. A claim of indirect discrimination is, necessarily, about the impact of a PCP (or, under s. 1 (1) (b), a "requirement or condition") on the individual claimant, and it would be meaningless if that had to be ignored: it would also mean that s. 1 (1A) was in fact less favourable to claimants than the previous law. We are therefore satisfied that the Tribunal addressed the right questions.
- In so far as the Notice of Appeal and Mr Epstein's skeleton argument challenged the Tribunal's conclusion on the question of justification, the argument appeared to be consequential on the point considered above, which we have rejected. But in the course of oral argument Mr Epstein developed a free-standing submission to the effect that the Tribunal's conclusion quoted at para. 62 (3) above was insufficiently reasoned. In so far as it rejected Amnesty's case based on the Claimant's safety, we have already held that that rejection was adequately reasoned and was open to the Tribunal on the evidence. But in so far as the Tribunal held that Amnesty's concerns about the perception of impartiality were unjustified, we accept Mr Epstein's submission. On that aspect we can find nothing in the Reasons beyond the single sentence which we have quoted. That is not in our view adequate. It was not, and could not be, suggested that Amnesty's concerns about this important issue were anything other than serious and genuine. If the Tribunal was to treat them as exaggerated it needed to say why. We suspect that, not unnaturally, the greater focus on the safety issue which resulted from its being central to the s. 41 defence led the Tribunal to overlook the need to pay equal attention to the impartiality issue. If the claim of indirect discrimination had been live, we should have felt obliged to allow the appeal on this aspect and remit the case to the Tribunal.
- In order to be able to treat her resignation as a dismissal for the purposes of an unfair dismissal claim it was necessary for the Claimant to show that she was entitled to resign without notice by reason of Amnesty's conduct: see s. 95 (1) (c) of the Employment Rights Act 1996. As is well-established, that means that she had to show that Amnesty had committed a repudiatory breach of her contract of employment. Her case had to be, and was, that the decision not to appoint her as Sudan researcher, taken for the reasons that it was, constituted a breach of the so-called "Malik term" – that is, the term implied by law into every contract of employment that
- The Tribunal only dealt very shortly with the question whether Amnesty had committed such a breach. At para. 71 of the Reasons it said this:
- Mr Epstein identified no fewer than three different alleged misdirections in that passage.
- First, he submitted that the Tribunal had erred by failing to consider whether the breach of the duty of trust and confidence which it found was repudiatory. Mr Epstein referred to what he called "the Morrow fallacy". That was a reference to the decision in Morrow v Safeway Stores plc [2002] IRLR 9, in which - he said - this Tribunal had held that any breach of the duty of trust and confidence, even if not repudiatory, would entitle an employee to claim constructive dismissal. Mr Epstein said that that was the approach which the Tribunal had taken in the present case but that it was wrong. We do not believe that there is any such fallacy or that the Tribunal asked itself the wrong question. We agree that there is no exception to the rule that only a repudiatory breach will suffice for the purpose of s. 95 (1) (c): so far from this Tribunal having said anything different in Morrow, that seems to be the ratio of the decision – see the judgment of Mrs. Recorder Cox at para. 25. However, it is in the very nature of the Malik term that it will only be broken by conduct on the part of the employer which, without reasonable and proper cause, is likely to destroy or seriously damage the relationship of trust and confidence. Such conduct will necessarily be repudiatory: see per Elias J. in Hagen v ICI Chemicals and Polymers Ltd. [2002] IRLR 31 at para. 55 (p. 39). There is thus no need for a tribunal in a case based on Malik to ask two separate questions – was there a breach ? and if so, was it repudiatory ? – because if the answer to the first is yes the second is necessarily answered too.
- Secondly, Mr Epstein submitted that the Tribunal failed to ask itself whether the conduct complained of by the Claimant fell within the range of conduct reasonably open to it, as he said was required by the decision of this Tribunal in Abbey National plc v Fairbrother [2007] IRLR 320, as approved (subject to some qualification) in Claridge v Daler Rowney [2008] ICR 1267. The present case is not an appropriate occasion to consider in detail the criticisms of both decisions recently made by a different division of this Tribunal, presided over by Judge Clark, in Bournemouth University Higher Education Corporation v Buckland [2009] IRLR 606, which was decided since the argument before us. But we are sympathetic to the contention that it is unhelpful to introduce in the context of constructive dismissal a conceptual tool devised for an entirely different purpose; and we certainly do not think that a tribunal should be held to have misdirected itself simply because it did not expressly use the language of a "range" of acceptable conduct. On the other hand, it is plainly right that conduct on the part of an employer may be for "reasonable and proper cause" even if there were other options available to him.
- Thirdly, he submitted that the approach of the Tribunal in the passage that we have set out was to hold that it automatically followed from the fact that the refusal to appoint the Claimant constituted unlawful discrimination that it also constituted a breach of the Malik term. As to that:
- After anxious consideration we have come to the conclusion that the facts of the case cannot indeed support a finding that Amnesty was in breach of the Malik term. It is important not to let the familiarity of the language blur what a breach of that term really entails. The employer must have conducted himself without reasonable and proper cause in a manner likely to destroy or seriously damage the relationship of trust and confidence between himself and the employee. These phrases mean what they say. In the present case Mr Cordone decided not to promote the Claimant because he thought that it would compromise Amnesty's perceived impartiality, and consequently reduce its effectiveness, to have a person of Sudanese origin acting as its researcher for Sudan, and because he believed that performing that role would carry unacceptable safety risks for the Claimant and others. Views can legitimately differ about the weight of those reasons; and Mr Cordone may, as the Tribunal believed, have attached rather more weight to them than they merited (though we have held that view to be insufficiently reasoned in so far as it concerns the impartiality issue). Nevertheless it has not been, and could not be, suggested that Amnesty's reasons were anything other than serious and genuine. The fact that, as we have held, a decision based on them constituted unlawful discrimination does not inevitably mean that the decision violated the Claimant's dignity, and in the peculiar circumstances of the present case we do not believe that it did so: Amnesty's reasons displayed no kind of racial (or ethnic, or national) prejudice on its part and could not reasonably be regarded as offensive to the Claimant as an individual. The decision was arrived at after a careful and thorough process. Mr Cordone's letter of 13 July (see para. 15 above) explained Amnesty's thinking in full and clear terms, which made it quite plain that the decision constituted no reflection on the Claimant personally, and assured her of Amnesty's continued faith in her: she was encouraged to apply for similar posts. In all those circumstances, we do not see how in those circumstances Amnesty can be said to have acted "without reasonable or proper cause", or that the Claimant was entitled to feel that the relationship of trust and confidence between herself and Amnesty was destroyed or seriously damaged: even if those were in fact her feelings, it is well-established that the test is objective. We can well understand how the Claimant may have been very disappointed and upset, but that is not the same thing. (We appreciate that the late introduction of the "review panel", at a time when the Claimant understandably had the impression that she had been successful, will have added to her disappointment; but poor handling of that kind could not reasonably jeopardise the relationship of trust and confidence if the substantive decision was reasonable.) It is also worth noting, though we do not suggest that this is in itself decisive, that the conduct of which the Claimant complains did not in fact affect her current employment in any way: it related to a potential promotion to a different job.
- We accordingly allow the appeal on this issue and dismiss the claim of unfair dismissal.
| For the Appellant | MR PAUL EPSTEIN One of Her Majesty's Counsel Instructed by: Bindmans LLP 275 Gray's Inn Road London WC1X 8QB |
| For the Respondent | MR DARIUS A'ZAMI (Representative) Free Representation Unit 289-293 High Holborn London WC1V 7HZ |
SUMMARY
RACE DISCRIMINATION – Direct discrimination
RACE DISCRIMINATION – Indirect discrimination
RACE DISCRIMINATION – Protected by s. 41
UNFAIR DISMISSAL – Constructive dismissal
Claimant, of (northern) Sudanese ethnic origin, applied for promotion to role of "Sudan researcher" for Amnesty International – Not appointed because Amnesty believed that the appointment of a person of her ethnic origin would compromise its perceived impartiality (and thus its effectiveness) and would expose the Claimant (and those with her) to an increased safety risk when visiting Sudan or the camps in Eastern Chad – Claimant resigned and claimed for race discrimination and unfair (constructive) dismissal
Held:
(1) Tribunal right to hold that the Claimant's non-appointment constituted direct discrimination on the grounds of her national/ethnic origin, contrary to ss. 1 (1) (a) and 4 (2) (b) of the Race Relations Act 1976, notwithstanding Amnesty's (potentially) justifiable reasons for the decision – James v Eastleigh Borough Council [1990] 2 AC 751, applied – Discussion of relationship between James and Nagarajan/Khan [2000] 1 AC 501
(2) Tribunal entitled to hold that Amnesty had not proved that appointing the Claimant would have put it in breach of s. 2 (1) of the Health and Safety at Work Act 1974, so as to be able to invoke the defence under s. 41 (1) of the 1976 Act – Discussion of Hampson v DES [1991] 1 AC 171 , Goba v GMC and Page v Freight Hire (Tank Haulage) Ltd.
(3) The Tribunal's alternative finding of indirect discrimination insufficiently reasoned on the justification issue
(4) It did not necessarily follow from the finding of discrimination that Amnesty was in breach of the Malik term, so as to entitle the Claimant to claim constructive dismissal; and in the particular circumstances of the present case no such breach had occurred.
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
INTRODUCTION
THE FACTS
"… the AI employee would be from a nationality or ethnic group representing the 'other side', so to speak, in an ongoing conflict situation or inter-ethnic dispute."
The second aspect is that staff who have to visit a country of which they are nationals, or from which they are perceived to originate, will be at significantly greater risk of ill-treatment or violence than "outsiders" (and that that risk may also affect others working with them). These potential problems, which are inherent in Amnesty's work, are often referred to internally under the label "conflict of interest" – though that term may be slightly inapt insofar as it fails to refer to the second, i.e. safety, aspect.
"The short point made by Mr Cordone, which is fundamental to the Respondent's case, is that an employee of the Respondent who may be perceived by others as partial may, for that reason, be at greater risk when visiting the country concerned. In particular, in the case of the Claimant, her Sudanese ethnicity and family background is said to identify her in the minds of some of the protagonists in the Sudan with the Government side of the conflict. In general terms, it is therefore said that her security is doubly at risk. First, those in the south, or rebels, or those who have been displaced to camps may regard her as being on "other side" of a dangerous conflict. Second, the Government side may regard the Claimant as a traitor to their cause and/or her ethnic origins and she may be at some risk for that reason. More generally, it is stated that she appears to be Northern Sudanese (and we will return to this) and that therefore this enhances the risk to her personal safety. This risk does not arise while she remains in London but it becomes clearer, according the Respondent, on any visit she may make to any part of the Sudan or Eastern Chad."
"… evidences that Mr Cordone was concerned how the conflict in the Sudan may have implications for the "perceived neutrality and security" of a researcher who is appointed who may be of "Sudanese nationality or extraction". These are the terms used by Mr Hondora in his email, who is citing concerns raised by Mr Cordone. It is clear that Mr Cordone asked the recruitment panel to consider this issue during the shortlisting process. Mr Hondora goes on to note that nationality should not be an automatic disqualifier but that the conflict of interest issue and "other features peculiar to the candidate" would be taken into account and that Mr Cordone would be informed of the panel's views."
The recruiting panel were asked not to make any offer to a candidate before Mr Cordone and Mr Van der Borght had had the opportunity to review the issue of conflict of interest.
"… [T]he panel was rigorous in assessing whether appointing any of the candidates interviewed would cause a conflict of interest situation to develop. The panel did not find any evidence suggesting that appointing Bashair to the post of Sudan researcher will result in a conflict of interest situation. The panel did not find any evidence of real or perceived impartiality [sic] on Bashair's part."
His eventual conclusion was that:
"The panel did not find evidence to suggest that there exists a conflict of interest situation which ought to preclude Bashair from being appointed to the post of Sudan researcher."
Following receipt of that e-mail, Mr Cordone and Mr Van der Borght took further views from a number of senior colleagues with experience both of African conditions and/or of the Claimant and her work. These produced a range of views about the seriousness of the potential conflict of interest and security concerns. Some of those canvassed went beyond the pure question of conflict and referred to the Claimant's own qualities, identifying some alleged weaknesses in her performance. It was not suggested that these weaknesses were grave: rather, the point made was that problems of perceived bias on account of her northern ethnicity could be mitigated if she had been a candidate of exceptional abilities, but that albeit appointable she was not in that class.
"He is clearly of the view that there is an increased security risk for Sudanese in Sudan and Eastern Chad. Having a researcher of Sudanese origin may make the Respondent more vulnerable in that its work can be discredited more easily. Experience or track record can overcome some of these constraints but the Claimant did not have sufficient experience; and he questions her maturity and judgment. He refers to objective elements in the recruitment process but says that "we should not discard our personal judgement or (instinct for some of us …)" He clearly is of the view that the Claimant should not be appointed."
"Thank you for your application for the permanent post of Researcher in the Africa Programme responsible for Sudan. I regret to inform you that after careful consideration we have decided not to offer you this position for the reasons outlined in this letter. At the same time, I wish to provide you with feedback on what we see are your strengths and future possibilities for career development with Amnesty International (AI).
The reasons for this decision are related essentially to what we have broadly described as the issue of conflict of interest, including security. As your employer, one of our key terms of reference is the duty of care to you under health and safety regulations. As explained below, we have considered this duty as well other elements including your skills and experience; assessments of the security situation in both Sudan and the surrounding countries where the post-holder would be expected to undertake field-work; and other elements that in our view will affect your ability to perform effectively the tasks involved in the Researcher's post for Sudan.
As you are aware, a review panel was formed, chaired by me, to consider all conflict of interest issues relating to this appointment. We have set up this panel to deal with all recruitments where similar issues of conflict of interest arise, aimed at ensuring senior level oversight as well as consistency of application of our policies across the International Secretariat.
Security
As an employer, AI needs to ensure that the risk of harm to any person appointed to the post, as well as to close colleagues of the appointees, are minimized. In looking into this aspect the review panel considered your own views, those of the initial panel, and other evidence including information indicating that staff of international organizations who are Sudanese or of Sudanese origin and operate in Sudan or in surrounding countries would face greater risks than others performing similar functions.
The review panel is aware that security risks may present themselves not just in the form of actual violence but in the form of threats or pressures on you or others working with you, for example during field work in areas of conflict. We are mindful in this regard also of the fact that you have very limited experience of actually working in areas of conflict. Accordingly, we would not, at the present time and for the foreseeable future, be able to authorize your travelling to Eastern Chad, for example. As you know, with Sudan itself remaining barred to AI delegates, Eastern Chad is the best area for AI to access people and information relevant to the Darfur conflict, but the heavy presence of refugees and armed groups opposed to the Sudanese government makes it also an area of particularly high risk. We believe that travelling there would pose an unacceptably high risk to both yourself and to those working closely with you.
The review panel accepted your argument that, in general, in order to deal with security threats, how one interacts with their various interlocutors is as important as where one comes from. However, in the context of fieldwork, especially in areas of conflict, we consider that there is a real risk that situations will arise where one's own interpersonal skills may not be sufficient to reduce the risks to a level that would be acceptable to AI.
We accept your assurances that your family, based as we understand it mostly abroad, would not be at risk in this respect, although that in itself cannot be guaranteed and matters would need to continue to be monitored.
Perception of bias and undue pressures
The panel ruled out any issue of personal conflict of interest in relation to this post. We have no reason to believe that you have manifested any personal bias in relation to this conflict during your time with AI. Our concern is with perceptions by the various parties in conflict in Sudan.
As you are of course aware, Sudan is in the midst of a civil war, indeed more than one - even if the South is currently undergoing a peace process - each with its heavy ethnic undertones. It is a situation also of high international profile, with the Darfur conflict generating massive international attention and deep politicization. As witnessed in the last few years, AI's work on Sudan is subject to intense scrutiny, with many demands and conflicting pressures put on us externally as well as internally, in addition to the security risks mentioned above.
In this context, any candidate for the Researcher position, who would therefore lead our work on Sudan, would be subjected to particularly close scrutiny and would be on the front line of the various forms of pressure entailed in this work. This would be all the more so for candidates from the country, or originally from the country, as well as others belonging to countries with a high level of political involvement. Forms of pressure would include, for example, accusation that AI is taking certain actions (or not taking them) because the Researcher belongs to one of the communities in conflict. We would also face situations where relevant people may refuse to cooperate with you or AI.
The review panel felt that it is possible to overcome these drawbacks - that a perceived conflict of interest is not the same as an actual conflict of interest and that long-term high-quality work as well as interpersonal skills can by and large overcome this perception. In particular, extensive research experience and an established profile as a senior, independent researcher would contribute to making up for these issues of perceived conflict. In your case, while you do have relevant skills and no doubt can develop them further, they are not sufficient at this time in our judgement to counterweight the difficulties you and AI would be facing in the immediate and foreseeable future were you appointed to the Researcher position.
We are aware that as Campaigner you have already developed a profile in AI's work on Sudan. We are also aware that you feel that effectively the role of Campaigner and Researcher are not distinguishable, at least externally. We disagree with that. Both in the field and in other settings the Researcher would be known as the key person responsible for developing strategy, provide political and other advice, and generally setting out the directions of our work on Sudan as well as taking many specific decisions on issues such as what information to use, which actions to take, which individual cases to pursue and, crucially, advising and taking decisions on security matters. While no one works alone in AI, the Researcher's role is of greater internal and external prominence and not easily interchangeable with that of Campaigner.
The way forward
While we have decided not to offer you this position, we do recognise your skills, such as networking, your commitment to human rights, and your ability to learn and develop professionally. These have been manifested during the two and a half years you have worked with us and have come through in this recruitment process. We will endeavour to provide you with opportunities for further developing them, as well as for developing research skills, while you are in your Campaigner position. At the same time, please do not be discouraged from applying for any other suitable AI vacancies that you might be interested in.
Your current contract as acting Researcher will expire on 31 July 2007 at which time you will return to your substantive post as Campaigner. I would like to take this opportunity to thank you for the work you have done in this acting role since last April.
I do accept that this recruitment decision will come as a disappointment, and am sorry that the process was not clear to you earlier and has taken longer than envisaged to complete. It was a difficult decision to take, but we feel it is the right one, for AI as well as for you.
The review panel is available to meet with you today to discuss any queries you may have. Please contact Jennifer Hancox in the Human Resources Programme should you wish to meet."
THE ISSUES
(a) No direct discrimination. In the first place, it denied that its decision constituted direct discrimination. But in any event:(b) S. 41. It contended that any such discrimination would not be unlawful because if the Claimant had been appointed, and had in consequence had to travel to Sudan or Eastern Chad, the risks to her safety identified above would have meant that it was in breach of its duty as her employer under s. 2 (1) of the Health and Safety at Work Act 1974 ("HASWA"). On that basis, it claimed to be able to rely on s. 41 (1) of the 1976 Act, which affords a defence in relation to acts done, inter alia, "in pursuance of any enactment".
The Tribunal found against Amnesty on both points, and both accordingly fall for consideration at this appeal.
(A) DIRECT DISCRIMINATION
THE STATUTORY PROVISIONS
"A person discriminates against another in any circumstances relevant for the purposes of this Act if –
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons;
(b) …"
"Racial grounds" are defined in s. 3 (1) of the Act as follows:
"'racial grounds' means any of the following grounds, namely colour, race, nationality or ethnic or national origins."
THE TRIBUNAL'S REASONS
"47 In our judgment the hypothetical comparator here is any similarly or identically qualified applicant as the Claimant, with the same level of experience, who was of non-Sudanese ethnicity. Skin colour is irrelevant, in our view, as is current nationality, given the facts that we have found. The relevant circumstances in our judgment call for a straightforward comparison with a hypothetical comparator, so that the difference between the Claimant and the comparator is only the difference of ethnic origin. We find that this is the hypothetical comparator that best fits the facts of the case. Further, any other more sophisticated form of hypothetical comparator raises difficulties that we have alluded to above.
48 We conclude that but for the Claimant's ethnic origin she would undoubtedly have been appointed. Her ethnic origin was the sole reason for the withdrawal of the appointment and this has four main aspects to it. The first is that her ethnic background may, for that reason alone, place her in heightened danger were she ever to visit the Sudan or East Chad. Second, her appearance may be characterised as "Arab". Third whether because of either her appearance or ethnic origin, or both, she may be perceived as having a bias towards the Government side in the Sudan. Fourth either because of her origin or because of her appearance, or because of the possibility of a perception of bias, the Respondent's standing will be in some way be diminished because its researcher may be seen as being less than independent.
49 Mr Emery has submitted that the decision was primarily taken on health and safety grounds: paragraph 27 of his written submissions. Accordingly, the decision was not taken on grounds of race. In our view this does not do full justice to the complexity of the evidence and the factors we have identified immediately above. Moreover, there were some subsidiary factors which certainly influence those whom Mr Cordone consulted. These included taking into account previous inter-personal difficulties with the Claimant; and a doubt about the openness of the competition. However, the predominant reason for the decision, in our view, is that the Claimant was of Sudanese origin and may be seen by some as being an Arab. The burden of proof provision in section 54A is comfortably surmounted by her because she has proven facts from which we could, apart from the section, conclude in the absence of an adequate explanation that the Respondent has committed an act of direct discrimination. The reality of this case is that the adequate explanation necessary to discharge the burden of proof would have to satisfy us that race or ethnicity played no part whatsoever in the decision and this is far from the case. Our judgment is that race and ethnicity were at the very centre of the decision, and ethnic origins in particular. It was a decision taken on predominantly racial grounds.
50 The suggestion by the Respondent that it was taken predominantly on the grounds of health and safety will be examined a little further below but there is an over-whelming difficulty with this argument, in our view. There is no realistic prospect of the researcher visiting the Sudan and this was the case at the time the decision was taken. Accordingly, even if it is accepted that she would be in some potential danger, this would only arise on a visit to Eastern Chad. It is not clear in the evidence that she could not visit Chad, (beyond the Eastern part of the country) and we doubt that is the case. There is no clear explanation as to why she could not have been given additional protection on any visit to Eastern Chad. Moreover, there was no challenge to the Claimant's assertion that risk assessments were carried out before every visit and there are examples in the bundle. Accordingly, the situation, and in particular the risk entailed, would have been assessed shortly before any planned visit. Even were there to be an unacceptable risk entailed in such a visit (and we can understand that there may be other circumstances in which Amnesty researchers may be put at risk in a variety of different circumstances elsewhere), there has been no reason advanced by the Respondent as to why the Claimant could not perform her function as a researcher in London. It has been suggested that she would be unable to fulfil her role, but this has not been established in the evidence to our satisfaction. In the view of the original panel the Claimant was appointable. In the view of some of the respondents to Mr Cordone's enquiries, the difficulties were capable of being overcome. Of course we accept that the Respondent was acting out of a sense of caution and was concerned for the Claimant as well as its own reputation. However, as has been well established, a beneficent motive is no answer to less favourable treatment on the ground of race. In our view, race was so clearly the driving factor behind the decision that questions of motive are irrelevant. Direct discrimination cannot be justified."
(1) The findings in the first two sentences of para. 48 are quite explicit. On the face of it, though subject to the point raised by Mr Epstein which we shall have to consider below, they constitute the plainest possible finding that the treatment of which the Claimant complains was on racial grounds – specifically, on the ground of her ethnic origin - within the meaning of s. 1 (1) (a).(2) The four "aspects" referred to by the Tribunal in the remainder of para. 48 are intended, as we understand it, to spell out the reasons for the conclusion in the first two sentences. They are not, perhaps, ideally articulated, but what the Tribunal is saying is clear. In short: Amnesty decided not to appoint the Claimant to the post of Sudan researcher because it was concerned about her safety and about whether she would be perceived as impartial, and the reason for both those concerns was her ethnic identity as a northerner. As a conclusion of fact – and without prejudice to how it should be characterised in law – that seems to us not simply to have been open to the Tribunal but positively inescapable on the evidence of Amnesty's own witnesses and documents.
(3) There is a slight inconsistency between the finding in para. 48 that the Claimant's ethnic origin was the "sole" reason for the withdrawal of the offer of the post and the statements both in the middle and at the end of para. 49 that the decision not to appoint her was taken on "predominantly" racial grounds: "predominant" is not the same as "sole". But the distinction – which appears to be made simply in acknowledgment of the fact that some other considerations were mentioned in Mr Cordone's consultations with senior colleagues (see para. 13 above) – is of no real significance. As the Tribunal itself correctly points out in para. 49, it is enough for the purpose of liability that the Claimant's ethnic origins should have been a significant part of the reason for the treatment complained of.
(4) Although the Tribunal refers to the so-called "reverse burden of proof" provisions of s. 54A of the 1976 Act, its conclusion does not depend on the application of those provisions. It has made an explicit finding as to the reason for the Claimant's treatment which renders the elaborations of the "Barton/Igen guidelines" otiose. (There would be fewer appeals to this Tribunal in discrimination cases if more tribunals took this straightforward course and only resorted to the provisions of s. 54A (or its cognates) where they felt unable to make positive findings on the evidence without its assistance.)(5) Para. 50 is addressed to Amnesty's submission that its decision not to appoint the Claimant was not on racial grounds but on grounds related to her health and safety. The essence of the Tribunal's answer appears at the very end of the paragraph and is that, to the extent that health and safety considerations operated, they did not constitute the "grounds" for its decision but fell, rather, to be characterised as a "motive" for it. We discuss this distinction below. However, most of the paragraph appears to be concerned with the different question of whether Amnesty's health and safety concerns were justified in any event. That, with respect to the Tribunal, is not a question which arises in the context of direct discrimination: if Amnesty's concerns ought indeed to be treated as the reason for, or ground of, the act complained of, it would be immaterial whether they were reasonable or sufficient - it would be enough that they were genuine. But this momentary loss of focus in the Tribunal's analysis does not necessarily invalidate its overall reasoning.
AMNESTY'S SUBMISSIONS
"A two-stage approach is required, namely [1] was there less favourable treatment but for the Claimant's race, and [2] if so, what, considering the mental processes of the alleged discriminator, was the reason for that difference in treatment?"
He submitted that the Tribunal had failed to carry out the second part of that exercise; and that if it had done so it would have concluded that the reason why Amnesty acted as it did was not the Claimant's race but its belief that her appointment would give rise to a conflict of interest (with its twin elements of (a) the risk that the Claimant – and thus Amnesty – would not be perceived as impartial and (b) the risk to her personal safety).
(1) At p. 763 D-E Lord Bridge quoted a passage from the judgment of Sir Nicolas Browne-Wilkinson V-C in the Court of Appeal to the effect that:"In my judgment section 1(1)(a ) is looking to the case where, subjectively, the defendant has treated the plaintiff less favourably because of his or her sex. What is relevant is the defendant's reason for doing an act, not the causative effect of the act done by the defendant."He commented (at pp. 763H – 764A):
"The fallacy, with all respect, which underlies and vitiates this reasoning is a failure to recognise that the statutory pensionable age, being fixed at 60 for women and 65 for men, is itself a criterion which directly discriminates between men and women in that it treats women more favourably than men "on the ground of their sex." This was readily conceded by Mr. Beloff and is indeed self-evident. It follows inevitably that any other differential treatment of men and women which adopts the same criterion must equally involve discrimination "on the ground of sex."(2) At pp. 764-5 Lord Bridge referred to R v Birmingham City Council, ex p. Equal Opportunities Commission [1989] AC 1155, which concerned the Council's practice of setting a higher pass-mark for girls than boys in the entrance exams for its single-sex grammar schools, reflecting the fact that there were more places for boys. The House had held that practice to be discriminatory. He referred to the leading speech of Lord Goff and said this:
"Lord Goff's test, it will be observed, is not subjective, but objective. Adopting it here the question becomes: "Would the plaintiff, a man of 61, have received the same treatment as his wife but for his sex?" An affirmative answer is inescapable."(3) At p. 772-3 Lord Goff said this:
"I turn to that part of the Vice-Chancellor's reasoning which is based upon the wording of section 1(1)(a). The problem in the present case can be reduced to the simple question - did the defendant council, on the ground of sex, treat the plaintiff less favourably than it treated or would treat a woman? As a matter of impression, it seems to me that, without doing any violence to the words used in the subsection, it can properly be said that, by applying to the plaintiff a gender-based criterion, unfavourable to men, which it has adopted as the basis for a concession of free entry to its swimming pool, it did on the ground of sex treat him less favourably than it treated women of the same age, and in particular Mrs. James. In other words, I do not read the words "on the ground of sex" as necessarily referring only to the reason why the defendant acted as he did, but as embracing cases in which a gender-based criterion is the basis upon which the complainant has been selected for the relevant treatment. Of course, there may be cases where the defendant's reason for his action may bring the case within the subsection, as when the defendant is motivated by an animus against persons of the complainant's sex, or otherwise selects the complainant for the relevant treatment because of his or her sex. But it does not follow that the words "on the ground of sex" refer only to cases where the defendant's reason for his action is the sex of the complainant; and, in my opinion, the application by the defendant to the complainant of a gender-based criterion which favours the opposite sex is just as much a case of unfavourable treatment on the ground of sex. Such a conclusion seems to me to be consistent with the policy of the Act, which is the active promotion of equal treatment of men and women. Indeed, the present case is no different from one in which the defendant adopts a criterion which favours widows as against widowers, on the basis that the former are likely to be less well off; or indeed, as my noble and learned friend, Lord Bridge of Harwich has pointed out, a criterion which favours women between the ages of 60 and 65, as against men between the same ages, on the same basis. It is plain to me that, in those cases, a man in either category who was so treated could properly say that he was treated less favourably on the ground of sex, and that the fact that the defendant had so treated him for a benign motive (to help women in the same category, because they are likely to be less well off) was irrelevant.I fully appreciate that this conclusion means that some people, seeking to do practical good for the best of motives, may be inhibited in the sense that they will be precluded from using gender-based criteria to achieve their purpose. This is the position in which the council finds itself in the present case. It is, I understand, anxious to assist, by means of a free concession, elderly persons who are retired and so are likely to be less well off than those who are still at work. For this purpose, it has for practical reasons adopted the criterion of pensionable age. Of course, it by no means follows that, because a person is of pensionable age, he will no longer be working, especially nowadays when he can draw his full pension when he is still in employment; but no doubt pensionable age is easily established by the production of a document, and, as a rough and ready test of retirement, it is reasonably acceptable. But the simple fact is that, under section 1(1)(a) of the Act of 1975, which is concerned actively to promote equality of treatment of the two sexes, the adoption for this purpose of a gender-based criterion is unlawful; and the task of the council is to find some other reasonably practical criterion, which does not contravene the Act of 1975, by which it can achieve its laudable purpose."(4) At p. 774 B-D, having discussed the concept of "motive" and "intention" which had figured heavily in the reasoning of the Court of Appeal, Lord Goff continued:
"Whether or not the treatment is less favourable in the relevant sense, i.e. on the ground of sex, may derive either from the application of a gender-based criterion to the complainant, or from selection by the defendant of the complainant because of his or her sex; but, in either event, it is not saved from constituting unlawful discrimination by the fact that the defendant acted from a benign motive. However, in the majority of cases, I doubt if it is necessary to focus upon the intention or motive of the defendant in this way. This is because, as I see it, cases of direct discrimination under section 1(1)(a) can be considered by asking the simple question: would the complainant have received the same treatment from the defendant but for his or her sex? This simple test possesses the double virtue that, on the one hand, it embraces both the case where the treatment derives from the application of a gender-based criterion, and the case where it derives from the selection of the complainant because of his or her sex; and on the other hand it avoids, in most cases at least, complicated questions relating to concepts such as intention, motive, reason or purpose, and the danger of confusion arising from the misuse of those elusive terms."
It is of course on this passage that Mr Epstein relies in the submission summarised above.
"Section 1(1)(a ) is concerned with direct discrimination, to use the accepted terminology. To be within section 1(1)(a ) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.
The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred. For the purposes of direct discrimination under section 1(1)(a), as distinct from indirect discrimination under section 1(1)(b), the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign. For instance, he may have believed that the applicant would not fit in, or that other employees might make the applicant's life a misery. If racial grounds were the reason for the less favourable treatment, direct discrimination under section 1(1)(a) is established.
This law, which is well established, was confirmed by your Lordships in Reg. v. Birmingham City Council, Ex parte Equal Opportunities Commission [1989] AC 1155, a case concerning similar provisions in the Sex Discrimination Act 1975. In that case the answer to the question I have described as the crucial question was plain. The council did not treat all children equally. Girls received less favourable treatment than boys. Your Lordships decided that, this being so, the reason why the girls were discriminated against on grounds of sex was irrelevant. Whatever may have been the motive or intention of the council, nevertheless it was because of their sex that the girls received less favourable treatment, and so were the subject of discrimination: see p. 1194 per Lord Goff of Chieveley.
The same point was made in James v. Eastleigh Borough Council [1990] 2 AC 751. The reduction in swimming pool admission charges was geared to a criterion which was itself gender-based. Men and women attained pensionable age at different ages. Lord Bridge of Harwich, at p. 765, described Lord Goff's test in the Birmingham case as objective and not subjective. In stating this he was excluding as irrelevant the (subjective) reason why the council discriminated directly between men and women. He is not to be taken as saying that the discriminator's state of mind is irrelevant when answering the crucial, anterior question: why did the complainant receive less favourable treatment?"
He went on to make clear that the relevant "mental processes" of the putative discriminator include his "subconscious motivation".
"Contrary to views sometimes stated, the third ingredient ("by reason that") does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the "operative" cause, or the "effective" cause. Sometimes it may apply a "but for" approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [2000] 1 AC 502, 510-512, a causation exercise of this type is not required either by section 1(1)(a) or section 2. The phrases "on racial grounds" and "by reason that" denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
DISCUSSION AND CONCLUSION
"Finally, I wish briefly to refer to the use, in this present context, of such words as intention, motive, reason and purpose."
Thus, although (as Lord Goff points out) the test may be applied equally to both the "criterion" and the "mental processes" type of case, its real value is in the latter: if the discriminator would not have done the act complained of but for the claimant's sex (or race), it does not matter whether you describe the mental process involved as his intention, his motive, his reason, his purpose or anything else – all that matter is that the proscribed factor operated on his mind. This is therefore a useful gloss on the statutory test; but it was propounded in order to make a particular point, and we do not believe that Lord Goff intended for a moment that it should be used as an all-purpose substitute for the statutory language. Indeed if it were, there would plainly be cases in which it was misleading. The fact that a claimant's sex or race is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment. That point was clearly made in the judgment of this Tribunal in Martin v Lancehawk Ltd. (UKEAT/0525/03, BAILII: [2004] UKEAT 0525_03_2203 ). In that case the (male) managing director of the respondent company had dismissed a (female) fellow employee when an affair which they had been having came to an end. She claimed that the dismissal was on the ground of her sex because "but for" her being a woman the affair would never have occurred. At para. 12 Rimer J. referred to the Tribunal's finding that the dismissal was "because of the breakdown of the relationship" and continued:
"… [T]he critical issue posed by section 1(1)(a) [is] whether Mr Lovering dismissed Mrs Martin "on the ground of her sex", an issue requiring a consideration of why he dismissed her. As we have said, we interpret the tribunal as having found that the dismissal was because of the breakdown of the relationship. That, therefore, was the reason for the dismissal, not because she was a woman. We accept that, but for her sex, there would have been no affair in the first place. It could, however, equally be said that there would have been no such affair "but for" the facts (for example) that she was her parents' daughter, or that she had taken up the employment with Lancehawk. But it did not appear to us to follow that reasons such as those could fairly be regarded as providing the reason for her dismissal."
See also Seide v Gillette Industries Ltd. [1980] IRLR 427, where an employee who had been moved to a different department to escape anti-Semitic harassment fell out (for non-racial reasons) with his colleagues in his new department and was disciplined: it was held that the fact that but for the earlier harassment he would not have been in the department where the problem arose did not mean that the action of which he complained was taken on racial grounds. Lord Goff was not of course considering issues of this kind; but these examples illustrate that the ultimate question must remain whether the act complained of was done on the proscribed ground (or for the proscribed reason).[7]
(B) SECTION 41
A PRELIMINARY PROBLEM
THE LAW
"Nothing in Parts II to IV shall render unlawful any act of discrimination done –
(a) in pursuance of any enactment or Order in Council; or
(b) in pursuance of any instrument made under any enactment by a Minister or Crown; or
(c) in order to comply with any condition or requirement imposed by a Minister of the Crown (whether before or after the passing of this Act) by virtue of any enactment.
References in this section to an enactment, Order in Council or instrument include an enactment, Order in Council or instrument passed or made after the passing of this Act."
As noted above, the "enactment" on which Amnesty relies in the present case is s. 2 (1) of HASWA, which provides that:
"It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees."
"... acts done 'in pursuance of any instrument' were to be restricted to acts done in the necessary performance of an express obligation in the instrument and did not extend to acts done in the exercise of a power or discretion conferred by the instrument."
(see per Lord Lowry at p. 180 D-E). A similar narrow construction of the section had previously been adopted by this Tribunal in General Medical Council v Goba [1988] ICR 885: the House of Lords broadly approved the judgment of Wood J. in that case, while not fully endorsing his detailed reasoning (see per Lord Lowry at p. 186 A-B).
"The act complained of in its doing and in the way it was carried out must have been one which was reasonably necessary in order to comply with any conditional requirement of the statute or order."
While Lord Lowry (loc. cit.) was cautious about the equiparation of "in order to comply with" and "in pursuance of", that point does not affect the essence of Wood J's formulation, which we respectfully endorse.
THE TRIBUNAL'S REASONS
"… If we ask Wood J's question, for the section 41 defence to be made out we have to conclude that it was reasonably necessary not to appoint the Claimant, in order to comply with section 2(1). We reject such a conclusion. This is because there were other more reasonable steps that would protect her health, or safety or welfare. The simplest was not to send her to Eastern Chad, at least not until it was known to be safe. It was not reasonably necessary for the Respondent to take the step of non-appointment. A further objection is that the Respondent had failed to demonstrate that it was acting on health and safety grounds, because of the mixture of motives. The significant factor of the Respondent's reputation for impartiality, for example, has no relevance to section 41."
That reasoning has also to be read with its comments at para. 50 of the Reasons, which are set out at para. 23 above.
SUBMISSIONS AND CONCLUSION
- As to not sending the Claimant to Eastern Chad at all, that was – in effect – to re-write the job. The question whether the appointment would necessarily put Amnesty in breach of s. 2 (1) had to be judged by reference to the job as it was and not to some different job. The job description for the researcher post required the occupant to represent Amnesty "both in the field and internationally, as requested": that, he submitted, plainly meant visiting the country in question or (in circumstances like that of Sudan) neighbouring countries. It was frankly self-evident that the job could not be done without visiting Eastern Chad (or Sudan if that became possible). But in any event Mr Cordone had said in terms in his witness statement that if the Claimant were unable to visit Chad she would be:
"… effectively cut off from direct research in the field for the foreseeable future, which would be a major impediment to her work as a Researcher"
(see para. 88). He had also said (see para. 97) that if she were appointed Amnesty would have had to consider appointing an additional researcher to do the things which she could not do, presumably including (though this is not spelt out) visiting Eastern Chad and perhaps Sudan. He accepted that the Tribunal had said at para. 50 of the Reasons that it had "not been established in the evidence to our satisfaction" that she would be unable to fulfil her role if she were confined to London. But he submitted that that was a perverse conclusion in the light of the evidence - and that in any event a bald statement of that kind did not, on what was the crucial issue in the case, satisfy the obligation to give a reasoned decision.
- As to "additional protection", Mr Epstein said (and Mr A'Zami fairly accepted) that this question had not been raised before the Tribunal at all, and there was no evidence on which it could have based any decision on it.
POSTSCRIPT: THE NEW S. 41 POINT
"Subsection (1) does not apply to an act which is unlawful, on grounds of race or ethnic or national origins, by virtue of a provision referred to in section 1 (1B)."
S. 1 (1B) was inserted into the Act in 2003 as part of the amendments introduced in order to implement the Race Directive: see para. 61 below. Its immediate purpose is to identify the parts of the Act to which the EU-derived formulation of indirect discrimination set out in s. 1 (1A) applies. Accordingly it begins "the provisions mentioned in subsection (1A) are …". One of those provisions is "Part II", being the part of the Act which proscribes discrimination in the employment field. Mr Epstein and Mr A'Zami, as we understand it, believed that because of the "pairing" between s-ss. 1 (1A) and 1 (1B) the effect of the cross-reference in s. 41 (1A) was limited to cases of indirect discrimination. However, that is not how we (or, we note, the editors of Harvey on Industrial Relations and Employment Law – see paras L1068 and Q119) read it: in our (fairly firm) view, the effect of s. 41 (1A) is to disapply s. 41 (1) in the case of all discrimination (direct or indirect) within the scope of the Race Directive. That is no doubt quite drastic, but it makes legislative sense: once racial discrimination came to be proscribed by EU law it could not be legitimate to rely on the provisions of domestic legislation by way of defence. This change in the law emphasises the problems to which the absence of any defence of justification may give rise: cf. para. 58 below. On this basis, the entire s. 41 (1) issue has been an irrelevance.
CONCLUSION ON DIRECT DISCRIMINATION
"(1) In relation to discrimination on grounds of race or ethnic or national origins—
(a) section 4(1)(a) or (c) does not apply to any employment; and
(b) section 4(2)(b) does not apply to promotion or transfer to, or training for, any employment; and
(c) section 4(2)(c) does not apply to dismissal from any employment;
where subsection (2) applies.
(2) This subsection applies where, having regard to the nature of the employment or the context in which it is carried out-
(a) being of a particular race or of particular ethnic or national origins is a genuine and determining occupational requirement;
(b) it is proportionate to apply that requirement in the particular case; and
(c) either—
(i) the person to whom that requirement is applied does not meet it, or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it."
We invited submissions on this question and gave the parties the opportunity (which Mr Epstein took but Mr A'Zami declined, being content to rely on the observations which he had made at the hearing) to submit supplementary written submissions: we made it clear that since the defence was not being relied on in the present case we were interested in it only by way of background. Both submitted that the defence would not be available in a case such as the present, however strong the facts. Mr Epstein in his written submissions made three specific points:
(1) that being, say, "non-Sudanese" could not be regarded as being of a "particular" race or ethnic or national origin (though he accepted that this language did not derive from the Directive);(2) that s. 4A is concerned only with cases of discrimination on the basis of race or ethnic or national origin and thus excludes cases of discrimination on the ground of colour or nationality[11];
(3) that if s. 4A provided for a wider defence than the previous s. 5, which was in narrower terms, it might offend against the "principle of non-regression" recited at para. 25 of the preamble to the Race Directive.
We do not think that it would be appropriate for us to express a view about any of those points, or more generally about the potential availability of s. 4A in a case of the present kind: the issue does not arise for decision and we have not heard both sides of the question argued. We wish to do no more than draw attention to the possibility that s. 4A might apply and to say that we were not convinced that Mr Epstein's answers are conclusive.
(C) INDIRECT DISCRIMINATION
"A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but –
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim."
(S. 4, which is the provision relied on by the Claimant as rendering the alleged discrimination in this case unlawful, is one of the "provision[s] referred to in subsection (1B)".) We will adopt the usual shorthands of "PCP" for "provision, criterion or practice" and of describing element (c) as "justification". S. 1 (1A) was introduced, again, in order to give effect to the Race Directive. Though the drafting is rather clumsy[12], the position now is that s. 1 (1A) represents, so to speak, the default formulation of indirect discrimination, though the previous "domestic" formulation (at s. 1 (1) (b) of the Act) is available where for any reason s. 1 (1A) does not apply: see s. 1 (1C).
(1) It recorded (at para. 51) that the parties were agreed "that [the PCP] relied upon is the conflict of interest policy", albeit that such a policy had not been formalised at the time of the decision.(2) It held (at para. 54) that that policy put both Sudanese persons generally, and the Claimant in particular, at a disadvantage because it precluded them from applying for jobs in Sudan – so that heads (a) and (b) of s. 1 (1A) were satisfied.
(3) It held (at para. 57) that "the Respondent did not act proportionately in removing the post from the Claimant". It observed that:
"Questions both of safety and of the Respondent's need to be seen as impartial have in our judgment been given undue stress by this Respondent."
"The Tribunal has fallen into error in its identification of the pool to which the (unidentified) PCP applied. The Tribunal (although not explicitly) has identified the pool in paragraph 54. It has limited the pool to those applying for the researcher post for Sudan. The correct pool, by contrast, was all applicants for researcher posts. The conflict of interest policy was a general Amnesty policy, and not one limited to Sudan. Had the Tribunal identified with precision the PCP, it would not have fallen into this error."
Para. 9 goes on to contend that that error also, and necessarily, affected the Tribunal's approach to the issue of justification.
(D) CONSTRUCTIVE DISMISSAL
"… the employer shall not without reasonable and proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee"
(see Malik v Bank of Credit and Commerce International SA [1997] ICR 606, per Lord Steyn at p. 621 C-D)[13].
"... [T]he removal of the post, when she was otherwise qualified to be appointed, was unlawful discrimination, as we have found. That necessarily amounts to a breach of the duty of trust and confidence. The decision the Respondent took was likely, at the very least, to seriously damage the relationship of trust and confidence between the parties."
(1) If that was indeed the Tribunal's reasoning we agree that it was wrong in law; and indeed Mr A'Zami did not contend otherwise. The provisions of the various anti-discrimination statutes and regulations constitute self-contained regimes, and in our view it is wrong in principle to treat the question whether an employer has acted in breach of those provisions as determinative of the different question of whether he has committed a repudiatory breach of contract. Of course in many if not most cases conduct which is proscribed under the anti-discrimination legislation will be of such a character that it will also give rise to a breach of the trust and confidence term; but it will not automatically be so. The question which the tribunal must assess in each case is whether the actual conduct in question, irrespective of whether it constitutes unlawful discrimination, is a breach of the term defined in Malik. Our view on this point is consistent with that expressed in two recent decisions of this Tribunal which consider whether an employee is entitled to claim constructive dismissal in response to breaches by the employer of his duty under the Disability Discrimination Act 1995: see Chief Constable of Avon & Somerset Constabulary v. Dolan (UKEAT/0522/07, BAILII: [2008] UKEAT 0522_07_2204 ), per Judge Clark at para. 41, and Shaw v. CCL Ltd [2008] IRLR 284, per Judge McMullen QC at para. 18.(2) Mr A'Zami, however, submitted that the Tribunal had not fallen into this error. It was wrong to focus exclusively on the second sentence of the passage quoted: if the Tribunal believed that once it had held that Amnesty was guilty of unlawful discrimination that was the end of the matter, the final sentence in the passage would be redundant. We see some force in that. On the other hand, if the Tribunal intended to base its decision on anything else we would have expected it to identify the key considerations.
(3) If the appeal turned on the point we would be inclined to hold that the Tribunal did indeed fall into the error identified by Mr Epstein, and that, even if it did not, its decision on this aspect of the case is inadequately reasoned. On that basis the case would have to be remitted to the Tribunal to produce a reasoned decision on the correct basis. But Mr Epstein submitted that it was not in fact open to the Tribunal on the facts found to hold that Amnesty was in breach of the Malik term. If that is right, the unfair dismissal claim should simply be dismissed. We turn to consider that submission.
Note 1 The discrimination alleged could be characterised as being on the basis of either the Claimant’s national or her ethnic origin – the former inasmuch as the perceived conflict of interest problem would apply to anyone of Sudanese origin (because they would necessarily be perceived as belonging to one “side” or the other), the latter because in the Claimant’s particular case the “side” which she would be perceived as belonging to was the “northerners” (or “Arabs”). But nothing turns on the precise characterisation. [Back] Note 2 See also the observations of Elias P in London Borough of Islington v Ladele [2009] IRLR 154, at para. 41.
[Back] Note 3 The plural is used in the 1976 Act and the singular in the 1975 Act, but the distinction is of no significance.
[Back] Note 4 Some of the authorities use a third phrase, asking whether the treatment in question was “because of” the proscribed factor. There can be no objection to this as a synonym for the statutory language, provided that is not used so as (on the basis of the etymological fallacy) to import the “causation” approach which Lord Nicholls has disapproved (see para. 22 above). Other phrases to the same effect (e.g. “based on”) are also no doubt acceptable, as long as no departure from the statutory test is involved.
[Back] Note 5 A different example of conduct “based” on the proscribed factor - be it sex, race, religion or whatever - is harassment which overtly invokes the characteristic in question: see Richmond Pharmaceuticals Ltd. v Dhaliwal [2009] ICR 724, at pp. 729-30 (para. 16). [Back] Note 6 The principal inconsistency is that Lord Goff uses the language of “reason” – and in particular the phrase “the reason why” – specifically in connection with the latter kind of case, whereas (as we have seen) Lord Nicholls regards it as synonymous with “grounds”. Lord Nicholls’ terminology seems to us preferable (not least because it reconciles the different language of the provisions relating to primary discrimination and those relating to victimisation). But these are purely verbal differences.
[Back] Note 7 It is no doubt partly because of points of this kind that Lord Nicholls in Khan enjoined caution about the use of the language of causation in the present context: see para. 22 above. [Back] Note 8 This is the decision of Elias J. in the Administrative Court. The case went to the Court of Appeal, but not on any relevant issue. [Back] Note 9 Since this passage was drafted the Court of Appeal has handed down judgment in R (E) v Governing Body of JFS [2009] EWCA Civ 626 (the Jewish Free School case). The analysis at para. 28 of that judgment, though a good deal more succinct than our own, also seems entirely consistent with it. [Back] Note 10 It is also to be noted that the phrase “in pursuance of” did not appear in s. 51 (1) of the 1975 Act – though that may not by itself be a significant difference. [Back] Note 11 As to this point, see the different views expressed in this Tribunal in Okonu v G4S Security Services (UK) Ltd [2008] ICR 598 and Abbey National plc v. Chagger [2009] ICR 624.
[Back] Note 12 Not least because “s. 1 (1A)” is impossible to distinguish, when spoken, from “s. 1 (1) (a)”. [Back] Note 13 We have noted the discussion by Judge Clark in Baldwin v Brighton & Hove City Council [2007] ICR 680 of whether the phrase “calculated and likely” in Lord Steyn’s formulation of the duty is a slip for “calculated or likely”. It is clear from his careful research that the latter is indeed the formulation in the earlier authorities and that Lord Steyn did not mean to depart from it. We are less persuaded that the difference has the significance argued for in Baldwin, i.e. of allowing a breach to be found by reference to either the employer’s subjective intention to damage/destroy the relationship or the objective likelihood of his conduct having that effect. Although Judge Clark at para. 23 (p. 685H) glosses “calculated” as “intended”, we are not sure that when the phrase first emerged, in the judgment of Browne-Wilkinson J. in W. M. Woods Car Services (Peterborough) Ltd [1981] ICR 666, it was not simply being used in the traditional lawyers’ sense of “likely to” (see, e.g., Norweb plc v. Dixon [1995] 1 WLR 636): on this basis Browne-Wilkinson J. would merely have been adding the phrase “or likely” in order to avoid misunderstanding (since the old-fashioned sense is somewhat counter-intuitive). We also note that Lord Nicholls in his speech in Malik omitted the reference to “calculated to” altogether: see p. 610 F-G. But fortunately this rather arcane point does not need to be resolved here. Indeed it may never in practice have to be resolved, since in almost all cases conduct intended to destroy or seriously damage the relationship of trust and confidence would also be likely to do so, and the latter question is generally the more easily answered. [Back]