The extent to which a person’s race (or other protected characteristic) might be relevant to a decision is often a tricky matter in discrimination claims, none more so that in HM Revenue and Customs v Saldanha UKEAT/0067/17/DA.

Mr Saldanha was of Asian origin. He had been employed in the civil service since 1980 and joined what is now known as HMRC in 1990. He worked on postings abroad as a Fiscal Crime Liason Officer. Having completed sometime in Romania, he returned to the UK but then applied for a position in Italy. Mr Saldanha passed the initial competency sift and a demanding assessment by an Assistant Director, Mr Pavlinic. He was offered the position conditional upon various tests including a self-assessment questionnaire and a psychological resilience assessment.

The questionnaire suggested that Mr Saldanha was “high on neuroticism, low on extraversion, (sic) average of openness and agreeableness and below to very low on conscientiousness” despite the fact that he had not had any issues in his two previous overseas positions and had recently been awarded a Directors award for outstanding achievement. This information was known to the assessor who conducted the resilience assessment, Dr Rogers. She asked Mr Saldanha about how he might cope with the racism he might face in Italy. He responded that he had worked and holidayed there without difficulty, but she continued to push the point, suggesting that this might cause him stress. She then reported back to Mr Pavlinic a bullet point summary of her views, suggesting she had strong concerns about psychological resilience and that there was the potential for any discrimination faced by Mr Saldanha to cause him stress.

Mr Pavlinic discussed the results of Mr Saldanha’s questionnaire with him and he expressed surprise, asking for the detailed results – but these were not provided at the time. Mr Pavlinic withdrew the offer of the posting to Rome. Mr Saldanha’s request for a second opinion was refused.

Mr Saldanha took his case to the Employment Tribunal, alleging that he had been directly discriminated against on grounds of his race. The Tribunal noted that in claims of this kind, in trying to understand whether the act complained of was because of race, the answer might sometimes be apparent from a description of the act itself, for example where race is the basis for the treatment (known as a ‘criterion case’). In these cases, the motivation or intent of the person who committed the act is irrelevant. This is in contrast to a ‘mental process’ case, where the act complained of may have had some impact on a person’s actions, whether consciously or subconsciously. In this situation, intent and/or motive is clearly relevant.

In this case the Employment Tribunal found, and the Employment Appeal Tribunal (EAT) agreed, that this was a criterion case; although there were a number of factors taken into account by Dr Rogers, one of them was the fact that Mr Saldanha, given his ethnicity, would face racism in Italy and this could lead to stress. The Tribunal found that this was inherently discriminatory – but for Mr Saldanha being of Asian origin, it would not have been thought that he would suffer discrimination. There was no need to consider the mindset of the decision maker Mr Pavlinic, as HMRC argued. He had relied on the totality of the report, including the discriminatory finding. Put another way, the EAT  found that HMRC “had failed to show that the treatment was in no sense whatsoever because of race, having failed to meet the burden upon it of showing that the tainted reason formed no part of (1) Dr Rogers’ assessment and (2) Mr Pavlinic’s ultimate decision.”

This case demonstrates the need to consider carefully the way that a person’s protected characteristics – whether they are race, religion, sex, disability, or others – might impact on a decision making process. Where, as here, it is found to be a criterion case, motive (even if that is one in the employee’s favour) is simply not relevant to the issue of liability, and any claim is likely to succeed.

Safia Tharoo, Barrister, 42 Bedford Row, London