EAT RACE DISCRIMINATION – Direct
The Claimant had been offered a posting in Italy, conditional upon his passing an assessment relating to his psychological resilience. In carrying out that assessment, the interviewer had pursued a number of questions relating to the Claimant’s ability – as someone of Asian origin – to cope with racism in Italy. Reporting that the Claimant did not demonstrate the required level of resilience, the risk that he might suffer stress due to discrimination was one of the factors cited. On the basis of this assessment – including the discrimination factor – the Respondent withdrew the offer of the posting. On the Claimant’s complaint, the ET found that both the assessment and the decision to withdraw the offer were inherently discriminatory – the Claimant’s race being the criterion for the treatment of which he was complaining. In the circumstances, it concluded that both the assessment and the withdrawal of the posting were acts of unlawful race discrimination. The Respondent appealed.
Held: dismissing the appeal
The ET had been entitled to find that the Claimant’s race was a reason (it did not need to be the only reason) for the less favourable treatment of which he complained. It had correctly analysed this as a criterion case: the relevant decisions (the assessment and then the decision to withdraw the offer of the posting in Italy) were explicitly based on a factor – the Claimant being of Asian origin – which was necessarily discriminatory (but for his race, there would have been no concern of his suffering discrimination); Amnesty International v Ahmed [2009] ICR 1450 EAT applied. In those circumstances, there was no reason to look further into the mental processes of the decision-takers: their decisions were explained by the Claimant’s race and thus tainted by discrimination. The fact that they might also have had other, non-discriminatory, reasons in mind did not detract from this conclusion: the Respondent had not been able to demonstrate that the decisions in question were in no sense informed by race.
Citations:
[2017] UKEAT 0067 – 17 – 2509
Links:
Jurisdiction:
England and Wales
Employment
Updated: 02 April 2022; Ref: scu.601895