EAT 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
(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 applied – Discussion of relationship between James and Nagarajan/Khan.
(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, 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.
Underhill J, P
Times 06-Oct-2009,  UKEAT 0447 – 08 – 1308,  ICR 1450,  IRLR 884
Race Relations Act 1976 1(1)(a), Health and Safety at Work Act 1974 291), Employment Equality (Age) Regulations 2006
Cited – Din v Carrington Viyella Ltd EAT 1982
The court considered what actions could found a claim for racial discrimination: ‘What has to be enquired into is the reason why a particular course was adopted: the question is was it on racial grounds?’ The court deprecated any consideration of . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
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 . .
Cited – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Cited – Regina v Commission for Racial Equality (ex parte Westminster City Council) QBD 1984
The council had dismissed a black road sweeper to whose appointment the trade union objected on racial grounds.
Held: The council’s motive for doing so, to avert industrial action, could not avail them. Woolf J said: ‘In this case although the . .
Cited – Martin v Lancehawk Limited T/A European Telecom Solutions EAT 15-Jan-2004
EAT Sex Discrimination – Indirect
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 . .
Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – Seide v Gillette Industries Ltd 1980
The claimant had been moved to a different department to escape anti-Semitic harassment. He fell out (for non-racial reasons) with his colleagues in his new department and was disciplined.
Held: The fact that but for the earlier harassment he . .
Cited – General Medical Council v Goba EAT 1988
Cited – Hampson v Department of Education and Science HL 7-Jun-1990
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 . .
Cited – Olatokun v Ikon Office Solutions EAT 10-May-2004
EAT Race Discrimination – Direct
EAT Race Discrimination – Direct . .
Cited – Elias, Regina (on the Application of) v Secretary of State for Defence and Another Admn 7-Jul-2005
Cited – Page v Freight Hire (Tank Haulage) Ltd EAT 1981
The complainant was a female lorry driver, aged 23, employed by a firm specialising in the carriage of chemicals. One chemical was potentially embryotoxic, and the manufacturers warned that special precautions should be taken to avoid women of . .
Cited – Courtaulds Northern Textiles Ltd v Andrew EAT 1979
There is implied into a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust . .
Cited – BG Plc v P O’Brien EAT 22-Feb-2001
EAT Contract of Employment – Breach of Contract
The employee complained that he had not been offered a revised contract of employment with enhanced redundancy terms, with the result that he did not receive . .
Cited – Morrow v Safeway Stores Plc EAT 21-Sep-2001
The claimant appealed against dismissal of her claim of unfair constructive dismissal. She complained of having been publicly told off. The court considered whether this amounted to a breach of a fundamental term of her contract entitling her to . .
Cited – Orr v Milton Keynes Council EAT 5-Nov-2009
EAT UNFAIR DISMISSAL:
Reasonableness of dismissal
Where discrimination and unfair dismissal allegations overlap and the Employment Tribunal hears and disbelieves . .
Cited – Buckland v Bournemouth University Higher Education Corporation CA 24-Feb-2010
The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed . .
Cited – Vivian v Bournemouth Borough Council EAT 6-May-2011
EAT UNFAIR DISMISSAL
An act is on the ground that an employer has made a protected disclosure within the meaning of the Employment Rights Act 1996 section 47B if it is done by reason of such a disclosure or . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 November 2021; Ref: scu.372610