Miss Bashair Ahmed, who is of northern Sudanese ethnic origin, was employed as a campaigner on issues relating to Sudan by Amnesty International. In 2007 she was considered for promotion to the position of researcher for Sudan. She was shortlisted for the post, but wasn’t appointed.
Amnesty International had concerns about staff of a particular nationality or national or ethnic origin undertaking work in or related to their country of origin. One was that their impartiality or perceived impartiality might be prejudiced, with implications for their effectiveness and the organisation’s reputation. The other was that the employee in question might be at greater risk of ill treatment or violence when visiting the country in question.
In relation to Ahmed, Amnesty International concluded that these concerns meant that she should not be appointed to the post. In particular, it had concerns about safety risks if she travelled to Sudan or Eastern Chad. Ahmed resigned and claimed constructive dismissal and direct and indirect race discrimination.
Amnesty International denied discrimination and contended that any such discrimination would not be unlawful because if Ahmed had been appointed and had to travel to Sudan or Eastern Chad, the risks to her safety would have meant that it was in breach of its duty under section 2(1) of the Health and Safety at Work Act 1974.
The employment tribunal upheld the race discrimination and constructive dismissal claims. Amnesty International appealed to the Employment Appeal Tribunal (EAT). It held that the basic question in a direct discrimination case is, what are the grounds for the treatment complained of? A benign motive for the treatment is irrelevant. The only question for the tribunal was whether Amnesty’s decision not to appoint Ahmed as Sudan researcher was on the ground of her ethnic origins. Once it found that this was the case, Amnesty’s motive – ie, its concerns about conflict of interest – was irrelevant.
However, the EAT said the tribunal had erred in holding that Amnesty International had committed a repudiatory breach of contract which entitled Ahmed to resign and claim constructive dismissal.
To breach the implied term, an employer must have conducted itself without reasonable and proper cause in a manner likely to destroy or seriously damage the relationship of trust and confidence. It could not be suggested that the organisation’s reasons for its treatment of Ahmed were anything other than serious and genuine, or that they displayed any racial prejudice, or that Amnesty International had acted without reasonable or proper cause. Ahmed was not entitled to feel that the relationship of trust and confidence had been destroyed or seriously damaged.
This case confirms that it is irrelevant whether an employer acts with good intentions where an employee is subjected to a detriment on the grounds of one of the protected characteristics of race, sex, age, sexual orientation, disability or religion, or belief.
The EAT recognised that this may place employers in a very difficult position where the national or ethnic origin of an employee makes it very difficult for them to work effectively in a particular country. Similar issues might arise in relation to women working in certain roles in countries where women’s activities are restricted.
However, the case also makes it clear that an act of discrimination will not always be sufficient to entitle an employee to resign and claim constructive dismissal. In many – if not most – cases, an employer that discriminates will also act in breach of the implied duty of trust and confidence, but this will not always be the case.
Sandra Wallace, employment partner and UK head of equality and diversity, DLA Piper