Discrimination: Motive of Employer

[Thanks to Lionel Stride of 1 Temple Gardens for preparing this case summary.]

[Listen to Daniel Barnett discussing this case on LBC 97.3]

The EAT (Underhill P) has handed down its decision in Amnesty International v Ahmed, where it upheld the original tribunal's decision that Amnesty was in breach of the RRA 1976 by refusing to appoint a Sudanese woman to the post of Sudanese researcher, on grounds that the organisation would appear to lack impartiality.

In reaching this conclusion the EAT discussed the relationship between James v Eastleigh Borough Council [1990] 2 AC 751 and Nagarajan v London Regional Transport [2000] 1 AC 501, emphasising that the ultimate question in both cases (whether the discrimination is intentional, as in Nagarajan, or simply the unintended result of a benign policy as in Eastleigh) was the ground of the treatment complained of (i.e. the reason why it occurred).

The 'two-stage approach' advocated by Amnesty, applying a 'but for' test as to causation followed by an analysis of the motivation of the discriminator, was rejected. Accordingly, as Amnesty's decision not to appoint the Claimant as a researcher was solely based on her ethnic origins, there had been direct discrimination. Motive was irrelevant.