HM Revenue and Customs v Saldanha

Direct discrimination may be established where the protected characteristic is an effective cause of less favourable treatment, even though other factors also influenced the decision. Where the characteristic is inherent in the criterion applied, the case is one of criterion discrimination and no further inquiry into the decision-maker’s mental processes is required.

An employer cannot justify treatment by relying on a benevolent purpose where the reason for the treatment included race. If a decision-maker adopts an assessment which treats a person’s race, and a consequential risk of discrimination, as a factor bearing on suitability, the decision is tainted unless the employer proves that race played no part in it.

The Claimant, who was of Asian origin, received a conditional offer of an overseas Fiscal Crime Liaison Officer post in Rome. A psychological resilience assessment identified, among other concerns, a risk that discrimination in Italy might trigger stress symptoms. The Respondent then withdrew the offer, relying on the assessment.

The Employment Tribunal at Bury St Edmunds held that both the assessment and the withdrawal decision were direct race discrimination contrary to the Equality Act 2010. It found that the assessment’s concern about discrimination was tainted by race and had been adopted by the decision-maker.

The Respondent appealed, contending that the Tribunal had wrongly treated the matter as a criterion case, conflated two separate acts, and erred in finding the assessment discriminatory.

1. Appeal dismissed. The Employment Tribunal was entitled to find that race was an effective cause of both the psychological resilience assessment and the decision to withdraw the Rome posting.

2. Under section 13(1) of the Equality Act 2010, the central question was why the less favourable treatment occurred. A protected characteristic need not be the sole reason. Liability follows if it is an effective cause, and the employer cannot discharge the burden of proof unless it shows that race played no part in the treatment.

3. This was properly treated as a criterion case. The relevant assessment expressly treated the prospect of discrimination against the Claimant, as a person of Asian origin, as a factor bearing on his resilience. But for his race, that concern would not have arisen. The discrimination was therefore inherent in the criterion applied, consistently with [2009] ICR 1450.

4. The Respondent’s protective or benign purpose did not answer the statutory question. It was an asserted explanation or excuse, rather than a reason which removed race from the treatment.

5. The assessment contained other concerns, and those may also have influenced the withdrawal decision. That did not undermine liability. The Tribunal permissibly found that the decision-maker had adopted the assessment without discarding its race-related concern. There was consequently no need for a further inquiry into his mental processes. The separate-acts analysis in [2015] ICR 1010 did not displace that conclusion in a criterion case.

• Employment Appeal Tribunal: dismissed the Respondent’s appeal and upheld the finding of direct race discrimination.
• Employment Tribunal, Bury St Edmunds: judgment sent to the parties on 16 November 2016. It upheld the Claimant’s complaints concerning the resilience assessment and withdrawal of the Rome posting, contrary to the Equality Act 2010.