Watt (formerly Carter) v Ahsan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Mr Justice Rimer,Lord Justice Buxton |
| Judgment Date | 28 July 2005 |
| Neutral Citation | [2005] EWCA Civ 990 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2005 |
| Docket Number | Case No: A2/2004/1426, A2/2004/1427 |
[2005] EWCA Civ 990
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Sedley
Mr Justice Rimer
Case No: A2/2004/1426, A2/2004/1427
Mr. G Millar QC (instructed by Messrs Thompsons) for the Appellant
Mr. R Allen QC and Ms. A Reindorf (instructed by Public Law Solicitors) for the Respondent
History
Mr Ahsan, a Labour councillor in Birmingham, brought three successive race discrimination claims in the employment tribunal against the Labour Party (represented by its General Secretary) over his repeated non-selection for vacant candidatures. The first claim, relating to a decision made in 1997, was heard on a preliminary issue which was determined by an employment tribunal in Mr Ahsan's favour. The second claim, relating to a decision made in 1998, was stayed by agreement while the Labour Party appealed to the EAT on the preliminary issue. In July 1999 the EAT (Lindsay J, Mr Ezekiel and Mr Sanderson) dismissed the appeal and directed the employment tribunal, subject to any appeal, to hear the first claim on its merits. The EAT, without opposition, gave the Labour Party permission to appeal, but no appeal was lodged.
By this time a third claim, relating to two decisions made in 2000, had been made. All three were heard by the Birmingham employment tribunal (Mr S.J.Williams, Mrs M Hughes and Mr Corfield) over 15 days in mid-2001. The tribunal, however, withheld promulgation of its decision because of the decision of this court in unrelated proceedings, Triesman [subsequently McDonagh] v Ali, and the pendency of an application in it for leave to appeal to the House of Lords. On 7 February 2002 this court held that a political party was not acting as a qualifying body for the purposes of s.12 when it selected candidates for public office. The employment tribunal, having heard full argument on what ought to follow, concluded that their obligation, notwithstanding the decision in Ali, was to promulgate their decision as directed by the EAT, and this they did. Except in one respect, they found unanimously in Mr Ahsan's favour on all three claims. They held over the question of remedy.
The decision to proceed (which I will call the jurisdictional issue) and the tribunal's decision on the first of the substantive claims (which I will call the discrimination issue) were separately appealed (with marginal success only) to the EAT. It is these two decisions of the EAT which now come before this court by permission granted by Pill LJ and Mummery LJ. The Labour Party's marginal success derived from the concession made by counsel for Mr Ahsan that the second and third claims did not stand in the same relation as the first to the EAT's order for remission and continuance, and from the EAT's consequent decision that they were foreclosed by the decision in Ali.
If the appeal on the jurisdictional issue succeeds, the entire expenditure of public time and money involved in Mr Ahsan's employment tribunal proceedings will have been wasted, not because the discrimination of which he complained is non-justiciable but because the employment tribunal was not, as it turns out, the correct forum. The correct forum, following Ali, will have been the county court, where the judge will ordinarily sit with two specialist assessors, a format mirroring that of the employment tribunal where a legally qualified chairman sits with two experienced lay members. The reason why the blame for this waste of time and public money lies with the Labour Party is this. As long ago as 1996 the Labour Party lost and did not appeal an employment tribunal case, also on non-selection of candidates ( Jepson v Labour Party [1996] IRLR 116), under the parallel provisions of the Sex Discrimination Act 1975. This was at least in part why Mr Ahsan's advisers chose the same forum. But over six months before the decision of the EAT in Mr Ahsan's favour on the preliminary issue, the Labour Party had been served with similar proceedings by Mr Ali, and by what must have been a deliberate choice used that case instead of Mr Ahsan's (in which it had without opposition been granted permission to appeal) as the vehicle by which to take the jurisdiction point to the Court of Appeal, where it succeeded. It was therefore entirely responsible for the invidious choice eventually presented to the employment tribunal: to comply with the unappealed direction of the EAT to hear and determine Mr Ahsan's claim, or to decline to do so because of a decision of the Court of Appeal in other proceedings.
The House of Lords, having granted provisional leave to appeal in Ali, refused final leave when it was explained by the Labour Party that the case did not affect the justiciability of race or sex discrimination in the selection of candidates (this was conceded, as it has been before us) but related only to the proper forum.
The law
Section 12(1) of the Race Relations Act 1976 , against the shoulder-note "Qualifying bodies", provides:
It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person –
……
(b) by refusing, or deliberately omitting to grant, his application for it; …..
Section 2 of the Employment Tribunals Act 1996 provides:
"Employment tribunals shall exercise the jurisdiction conferred on them by or by virtue of this Act or any other Act, whether passed before or after this Act."
Section 12 of the Race Relations Act appears in Part II, which is entitled "Discrimination in the Employment Field". Part III, entitled "Discrimination in other fields" includes s.25 which protects members of certain associations from discrimination. Part VIII, entitled "Enforcement", contains s.54 which, against the shoulder-note "Jurisdiction of employment tribunals" provides, as amended, that "a complaint by any person ("the complainant") that another person ("the respondent") … has committed an act against the complainant which is unlawful by virtue of Part II … may be presented to an employment tribunal". The section goes on to exclude s.12(1) complaints where statute instead provides an appeal.
The first holding of this court in Ali v McDonagh [2002] ICR 1026 is reported as follows in the headnote:
"[C]onstruing section 12 of the Race Relations Act 1976 as a whole, the Labour Party, in selecting a candidate for local government elections or allowing a person to be nominated to the pool from which prospective candidates were to be selected, was not a body which "can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession" and it was not the type of body to which the section was intended to apply, since the party's activities were for its own political purposes; and that, therefore, it would be wholly artificial to treat the section as applying to the circumstances of the present case.
….
Sawyer v Ahsan [2000] ICR 1 , EAT, overruled."
I will return (paragraph 24 below) to how the court expressed its findings and conclusions.
Issues
The first question is whether either the employment tribunal or, on appeal, the EAT (Burton P, Mr J Hougham and Dr K Mohanty) erred in law in holding the determination of the first claim by the employment tribunal not to have become barred in the circumstances which had arisen. The second question is whether, if the employment tribunal were entitled to adjudicate, they erred in law in holding that Mr Ahsan had been subjected to unlawful race discrimination. This issue was heard separately by the EAT (Silber J, Mr J Hougham and Mr D Welch) and was decided also in Mr Ahsan's favour.
Jurisdiction
I turn first to what has been canvassed in this court and before the EAT as the question of jurisdiction. So far I have deliberately not referred to it as such because it is its legal character which is at the centre of the first issue. But Sawyer v Ahsan [2000] ICR 1 was characterised by Lindsay J at §4 as "the Labour Party's appeal as to jurisdiction", and in Ali v McDonagh [2002] ICR 1026, §53, this court concluded that the originating applications raised complaints "outside the jurisdiction of the tribunal".
The argument for the Labour Party is that, as Ali now establishes, a claim that a political party has discriminated on grounds of race in a selection procedure falls outside s.12 of the Act because a political party is not a qualifying body within the meaning of that section. It follows, Gavin Millar QC argues, that the employment tribunal had no jurisdiction to hear Mr Ahsan's claims.
For Mr Ahsan, Robin Allen QC submits that all three of the claims were properly adjudicated on by the tribunal; but he has himself drawn attention to the fact that it was only the first of them which was the subject of the EAT's order to hear the case on its merits. The second had been stayed to abide the outcome of the appeal on the first claim, and the third postdated the EAT's order. In these circumstances the EAT held that its order for remission had covered only the first claim, and that "agreement, acquiescence or estoppel cannot clothe the employment tribunal with jurisdiction to hear" the other two claims. This is the subject of Mr Ahsan's...
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