Employment—Discrimination—Racial discrimination

Employment Appeal Tribunal, Underhill J, 13 August 2009.

Section 41(1A) of the Race Relations Act 1976 (RR 1976) disapplies s 41(1) of that Act in the case of all discrimination, direct or otherwise, within the scope of the Council Directive (EC) 2000/43 (the Race Directive)

Darius A’Zami (instructed by the Free Representation Unit) for the employee. Paul Epstein QC (instructed by Bindmans LLP) for the employer.
 

The employee was of Northern Sudanese ethnic origin. She applied for promotion to the role of “Sudan Researcher” with the employer. She was not appointed because the employer believed that the appointment of a person of her ethnic origin would compromise its perceived impartiality (and thus its effectiveness) and would expose the employee and those with her to an increased safety risk when visiting Sudan or the camps in Eastern Chad.

The employee resigned and brought a complaint a complaint before the employment tribunal alleging, inter alia, racial discrimination and constructive unfair dismissal.  The tribunal upheld those claims. It held that her non-appointment constituted direct discrimination on the ground of her national or ethnic origin, contrary to ss 1(1)(a) and 4(2)(b) of RR 1976, notwithstanding the employer’s potentially justifiable reasons for the decision.

It also held that if it had not upheld the claim of direct discrimination it would still have found for the employee on the basis of indirect discrimination. The employer appealed.

Employment Appeal Tribunal:
 

The Employment Appeal Tribunal (EAT) turned first to the issue of direct discrimination. It considered, inter alia, James v Eastleigh Borough Council [1990] 2 All ER 607 and Nagarajan v London Regional Transport [1999] 4 All ER 65.

The only question for the tribunal had been whether the ground of, or reason for, the employer’s decision not to appoint the employee as Sudan researcher was her ethnic origins. Once it had found that that was the case – as it did – that was the end of the matter: specifically, the fact that its reason for not being prepared to appoint a person with the employee’s ethnic origins was its concern about conflict of interest was irrelevant.
 

The tribunal was accordingly right to hold that the employee had been discriminated against on the ground of her ethnic origins.
 

The EAT therefore turned to s 41 of RRA 1976. It considered Hampson v Department of Education and Science [1990] 2 All ER 513. Although not finding the point easy, it was not persuaded that there was any error of law in the tribunal’s reasoning. Its central point was that even if there was a risk about sending the employee to Eastern Chad, it could be avoided by not sending the employee there. That decision on the facts was open to the tribunal.
 

The EAT then turned to the effect of s 41(1A) of RRA 1976, which provided: “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).”
 

Section 1(1B) was inserted into the Act in 2003 as part of the amendments introduced in order to implement the Race Directive. Its immediate purpose was to identify the parts of the Act to which the EU-derived formulation of indirect discrimination set out in s 1 (1A) applied. Accordingly it began “the provisions mentioned in subsection (1A) are …”. One of those provisions was “Part II”, being the part of the Act which proscribed discrimination in the employment field. Counsel for the employer 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 was not how the EAT read it: in its (fairly firm) view, the effect of s 41(1A) was to disapply s 41(1) in the case of all discrimination (direct or indirect) within the scope of the Race Directive. That was no doubt quite drastic, but it made 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. That change in the law emphasised the problems to which the absence of any defence of justification might give rise. On that basis, the entire s 41(1) issue had been irrelevant.
 

It followed that the decision of the tribunal that the employer’s failure to offer the employee the job of Sudan researcher constituted unlawful discrimination on racial grounds had to be upheld. The tribunal felt some unease at being required to reach that conclusion, which might have implications beyond the instant case and for other employers whose employees were required to work abroad in situations of acute political or ethnic tension. Whether or not in the instant case the employer’s concerns on the issue of impartiality (or perceived impartiality) were exaggerated, as the tribunal believed, it was 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 would be rare, but where they did occur employers would be in a highly invidious position. However, subject to one point, it seemed that the law could offer no comfort. The legislature had deliberately set its face against allowing any defence of justification in cases of direct discrimination.
 

The one point was whether employers in such cases might be able to rely on the defence of “genuine occupational requirement” under s 4A of RRA 1976. However, the EAT did not offer a final view on that point.
The appeal would accordingly be dismissed.