Carter v Ahsan

The majority held that an employment tribunal’s constitutive jurisdiction depends on the statutory nature of the complaint and respondent. A tribunal cannot acquire or preserve jurisdiction by agreement, acquiescence, estoppel or an unappealed order. Once binding authority establishes that the respondent falls outside the statutory category, the tribunal must stop, even after an earlier preliminary ruling. The majority further held, in its alternative merits analysis, that linking a candidate to concerns associated with a racial community does not itself establish discrimination. There must be a finding that the underlying perception or suspicion was formed on racially discriminatory grounds.

The respondent brought three race discrimination claims against the Labour Party concerning his non-selection as a local-government candidate. The Employment Tribunal initially held that the Party was a qualifying body under section 12 of the Race Relations Act 1976. The Employment Appeal Tribunal upheld that ruling and directed the first claim to proceed; the decision was reported as Sawyer and Others v Ahsan [2000] ICR 1.

While the claims awaited promulgation, the Court of Appeal decided Ali v McDonagh, holding that the Labour Party was not such a qualifying body. The Employment Tribunal nevertheless proceeded, found for the respondent, and later decisions of the Employment Appeal Tribunal gave rise to the present appeals and cross-appeals. The central issues were whether the Tribunal retained jurisdiction and whether its finding of racial discrimination was legally sustainable.

By a majority, the Labour Party’s appeals were allowed and the respondent’s cross-appeals were dismissed. Sedley LJ dissented on both issues.

1. Constitutive jurisdiction. Rimer J and Buxton LJ held that the Employment Tribunal’s jurisdiction was statutory. Under section 54 of the Race Relations Act 1976, the Tribunal could hear only a complaint of an act unlawful under Part II. Whether the Labour Party was a body within section 12 was therefore a question going to constitutive jurisdiction. Following Ali v McDonagh [2002] ICR 1026, the Labour Party was outside that statutory category.
2. Effect of earlier orders. The Tribunal’s earlier ruling, and the Employment Appeal Tribunal’s unappealed order directing the first claim towards a merits hearing, could not require the Tribunal to act without jurisdiction. Agreement, acquiescence, estoppel and issue estoppel could not create or preserve jurisdiction which statute withheld. The Tribunal was required to respect the later binding authority and discontinue all three claims.
3. Discrimination finding. Rimer J and Buxton LJ further held that the Tribunal’s findings did not establish that the suspicion of misconduct associated with the Pakistani community had itself been formed on racially discriminatory grounds. Without that finding, the decision to prefer a candidate perceived as free of the relevant associations did not establish discrimination. The comparator issue was largely immaterial.
4. Dissent. Sedley LJ considered the section 12 issue to be an error within the Tribunal’s jurisdiction, correctable by appeal rather than rendering the proceedings void. He would also have upheld the discrimination finding, applying the principle that race need only be a real part of the reason for the detriment.

• Court of Appeal (Civil Division): By a majority, allowed the Labour Party’s appeals and dismissed the respondent’s cross-appeals. [2005] EWCA Civ 990.
• Employment Appeal Tribunal: On 24 February 2004, dismissed the jurisdiction appeal concerning the first claim but allowed it concerning the second and third claims. On 21 June 2004, upheld the Employment Tribunal’s finding of racial discrimination in the first claim.
• Employment Tribunal: Initially held that the Labour Party was a qualifying body under section 12 of the Race Relations Act 1976. The EAT upheld that ruling in 1999 and directed the first claim to proceed. On 23 September 2003, the Tribunal held that it retained jurisdiction and found for the respondent on the merits.