Watt (formerly Carter) (sued on his own on behalf of the other members of the Labour Party) (Respondent) v Ahsan (Appellant) v. Ahsan (Apellant)

An unappealed determination by a competent tribunal that it has statutory jurisdiction creates an issue estoppel between the parties, even where the determination is subsequently shown to be legally erroneous. This differs from an attempt by agreement or conduct to confer jurisdiction which Parliament has withheld.

A political party selecting election candidates does not confer an objective professional authorisation or qualification within section 12 of the Race Relations Act 1976. Direct racial discrimination nevertheless occurs where racial origin is a significant reason for non-selection. Political expediency, including anticipated voter prejudice, cannot justify direct discrimination. An actual person whose circumstances differ materially may still provide evidence of how a proper hypothetical comparator would have been treated.

Mr Ahsan, a Labour councillor of Pakistani origin, was not selected as the party's candidate for his ward. He brought three employment tribunal complaints alleging racial discrimination and victimisation under the Race Relations Act 1976.

In Sawyer v Ahsan [2000] ICR 1, the Employment Appeal Tribunal had determined as a preliminary issue that the Labour Party was a qualifying body under section 12. That ruling was not appealed. After a full hearing, the employment tribunal substantially upheld the complaints.

The Court of Appeal, by a majority, allowed the Labour Party's appeal: [2005] EWCA Civ 990; [2005] ICR 1817. The issues before the House were whether section 12 applied, whether the earlier unappealed jurisdictional ruling bound the parties, and whether the tribunal's findings established direct discrimination and victimisation.

1. Appeal allowed unanimously. Lord Hoffmann delivered the leading speech. Lord Rodger, Lord Walker, Lord Carswell and Lord Brown agreed with it. The decision of the employment tribunal was restored.

2. Per Lord Hoffmann, a political party selecting an election candidate is not a qualifying body under section 12 of the Race Relations Act 1976. An authorisation or qualification within that section involves an objective and even-handed standard by which a body vouches for a person's qualifications to the public. Political selection instead turns principally on perceived electoral appeal. Ali v McDonagh [2002] ICR 1026 was correctly decided and followed.

   Lord Hoffmann further explained that the relevant statutory prohibition was section 25, concerning discrimination by associations. The size of an association and the ease of joining it do not make its membership a section of the public. The question is whether constitutional membership requirements provide genuine screening and are enforced in practice. The Labour Party satisfied that test. Proceedings under Part III, however, belonged in the County Court rather than the employment tribunal.

3. Per Lord Hoffmann, the unappealed preliminary determination remained binding by issue estoppel. The rule that parties cannot confer jurisdiction by agreement or conduct concerns estoppel by representation and does not govern estoppel per rem judicatam. The employment tribunal and Employment Appeal Tribunal were competent to determine whether the statutory conditions establishing jurisdiction existed. Their determination bound the parties even though later authority showed it to be erroneous.

   The estoppel applied to all three complaints. Although an issue may be reopened in later proceedings where special circumstances make that necessary to avoid injustice, no such course was justified. The Labour Party had not pursued an appeal and had involved Mr Ahsan in a lengthy merits hearing. Requiring him to restart in the County Court would have been unfair.

4. Per Lord Hoffmann, the tribunal's findings established direct racial discrimination. Applying Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, an actual person whose circumstances are materially different may serve as an evidential comparator. The tribunal properly used the selected white candidate as evidence of how a hypothetical person in Mr Ahsan's circumstances, but without his racial origin, would have been treated.

   Pakistani origin was found to be a significant cause of the non-selection. Anticipated electoral hostility to a Pakistani candidate could not justify direct discrimination. The tribunal's remaining findings of discrimination and victimisation were findings of fact which disclosed no error of law.

1. House of Lords: The appeal was allowed unanimously. The Court of Appeal's decision was reversed and the employment tribunal's decision restored: [2007] UKHL 51.
2. Court of Appeal: By a majority, Buxton LJ and Rimer J, Sedley LJ dissenting, the court allowed the Labour Party's appeal on jurisdiction and also considered the discrimination findings insufficient: [2005] EWCA Civ 990; [2005] ICR 1817.
3. Employment Appeal Tribunal: Burton P's tribunal dismissed the Labour Party's jurisdictional appeal concerning the first complaint but allowed it concerning the other two: [2004] ICR 938. A differently constituted Employment Appeal Tribunal, Silber J presiding, subsequently dismissed the appeal against the merits of the first complaint.
4. Employment tribunal: Following a full merits hearing, the tribunal substantially upheld the three complaints of racial discrimination and victimisation. A separate allegation concerning election to the National Executive Committee was dismissed.
5. Earlier Employment Appeal Tribunal: In Sawyer v Ahsan [2000] ICR 1, Lindsay J's tribunal dismissed the Labour Party's appeal on the preliminary jurisdictional issue. The Labour Party did not pursue the permitted appeal.