Thursday 24 September 2009

EMPLOYMENT – DISCRIMINATION

EMPLOYMENT – DISCRIMINATION
A charity’s decision not to appoint a person to a post due to their ethnic origin amounted to discrimination, regardless of the motive for the decision.

Miss Ahmed had been employed as a campaigner on Sudan and applied for the role of permanent Sudan researcher. She was of Sudanese origin and would have been identified as coming from the north of the country. The employer had previously operated a complete prohibition on staff working on their “own” countries. This had been abolished but conflicts of interest remained a concern and the employer was in the process of formulating a policy on the issue at the time of the dispute.

The employee was rejected for the researcher post due to the risk of potential conflicts of interest, risks to health and safety and security issues. The concerns were linked to her ethnic origin and the risk that others would perceive her to be associated with particular ethnic groups linked with the Sudanese government.

The EAT (Employment Appeal Tribunal) held that in discrimination cases, the key question is what were the grounds for the treatment complained of by the individual. If the reasons for the treatment are based on a protected characteristic, such as race or gender, the treatment will amount to direct discrimination, regardless of the employer’s motive or intention. The EAT did have some sympathy for organisations working abroad in situations of conflict and the difficulties they face. However, EAT were clear that in this case the decision to refuse to appoint the employee to the role was based on race and therefore unlawful, despite the particular difficulties of work in Sudan and Eastern Chad.

The employer also argued that their actions were covered by the exemption under section 41 of the Race Relations Act 1976 (RRA). Section 41 provides that the RRA will not render illegal any act done in order to comply with another statute. The employer argued that they were acting to comply with their statutory health and safety duties. However, the EAT concluded that section 41(1A) does not allow employers to rely on the statutory exemption where the discrimination is prohibited under EU law.

This case is a clear reminder to employers that decisions must be considered carefully for any discriminatory implications, as direct discrimination cannot be justified. Any benign motive or intention will not amount to a defence in a discrimination case.

Amnesty International v Ahmed UKEAT/0447/08/ZT
For further information, please contact:DEBORAH NATHAN on 0208 394 6437, Deborah.Nathan@russell-cooke.co.uk

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