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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McDonagh v. Ishaq [2002] UKEAT 746_00_1406 (14 June 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/746_00_1406.html Cite as: [2002] UKEAT 746_00_1406, [2002] UKEAT 746__1406

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APPEARANCES

 

For the Appellant	MR JOHN CAVANAGH (of Counsel) Instructed by: Messrs Gregory Rowcliffe and Milners Solicitors 1 Bedford Row London WC1R 4BZ
For the Respondent	MR ANDREW ZIMUTO (of Counsel) Instructed by: Mr Richard Lawanson Commission for Racial Equality Maybrook House (5th Floor) 40 Blackfriars Street Manchester M3 2EG


 


MR JUSTICE MAURICE KAY

1. This case comes before us as an appeal from a Decision of an Employment Tribunal, following a lengthy hearing in Hull in February and March 2000. That Tribunal decided that Mr Ishaq had been discriminated against under the provisions of the Race Relations Act 1976.
2. His claim was against the Labour Party, through a representative Respondent. His complaint was that as a member of the Labour Party, he was the subject of decisions not to place him on the relevant list of approved candidates of the Labour Party for Local Government elections. The first Decision was that of the Local Government Committee made in April 1998; the second was a Decision of the Appeal Panel of the Regional Executive Committee, determined in December 1998. Mr Ishaq's case was that both those events occasioned racial discrimination against him.
3. When he presented his Originating Application to the Employment Tribunal, the Labour Party, for we shall call the Respondent that, took the point in its Notice of Appearance that it wished to argue that the Employment Tribunal had no jurisdiction in relation to the facts of this case, under section 12 of the Race Relations Act 1976. It was observed that there was a case pending before this Employment Appeal Tribunal which was to deal with that very issue, and the request was made that, in effect, the proceedings be stayed until that Decision became known.
4. In the event, the Employment Appeal Tribunal in the case of Ahsan -v- Sawyer [2000] ICR 1 came to the conclusion that section 12 of the 1976 Act did apply in circumstances not identical, but similar to the present one, and also involving the Constitution of the Labour Party.
5. In due course, when the Employment Tribunal came to consider the present case, it was concerned with two preliminary matters, one of which was the jurisdiction point, but in the event, the Employment Tribunal was satisfied that, following the Sawyer case, it had jurisdiction under section 12. It proceeded to hear the matter substantively, and as we have indicated it decided the case in favour of Mr Ishaq.
6. The Labour Party then sought to appeal to this Tribunal solely on grounds related to the substantive Decision on the evidence that had been heard in the Employment Tribunal. However, there was also proceeding through the system another case involving members of the Labour Party who were complaining about their position within the party as potential candidates in local elections. Again, the facts were not the same because there the members in question had had their membership suspended. That case is now to be referred to as Triesman -v- Ali & Anr It was decided by the Court of Appeal on 7 February 2002.
7. Without going into all the details, what had happened in that case was that the Employment Appeal Tribunal had again come to the conclusion that section 12 applied, and the Court of Appeal was considering that issue for the first time. In the event, the appeal was successful. The Court of Appeal decided that section 12 does not apply to circumstances, such as the present circumstances.
8. It also came to the conclusion that in similar circumstances, in other cases, members of the Labour Party may well not be without a remedy because the Court of Appeal took the view that there might very well be one in the County Court under section 25. We propose to say no more about that, it not being the job of this Tribunal to involve itself with problems of jurisdiction in the County Court. Suffice it to say that, following the decision in Triesman -v- Ali, the Labour Party sought permission to amend their Grounds of Appeal to us in the present case, and gave notice of that intention to Mr Ishaq, whose interests in this matter are supported by the Commission for Racial Equality.
9. The matter having been called on today, the position of the respective parties before us is as follows: the Labour Party seeks permission to amend its Grounds of Appeal and contend that, if allowed, that new ground of appeal is unanswerable.
10. On behalf of Mr Ishaq, Mr Zimuto accepts that proposition, but maintains that if the Labour Party now, or in the future, were minded to have heard the appeal as originally constituted, it would be vigorously resisted. We propose to say nothing about the merits of the appeal as originally constituted.
11. What is abundantly clear to us is that the decision of the Court of Appeal in Triesman -v- Ali clearly applies to the present case. In those circumstances, It would wholly wrong to refuse the Labour Party permission to amend its Grounds of Appeal. That is recognised by Mr Zimuto who seeks neither to resist the amendment of the Grounds of Appeal nor the appeal on the Triesman -v- Ali point. That, if we may say so, is very sensible.
12. We, therefore, come to this position: the appeal on the amended ground will have to be allowed, in view of the binding authority of Triesman -v- Ali. We shall allow the appeal on that basis, and quash the Decision of the Employment Tribunal.
13. In one sense that disposes of this appeal, but since events in this area have not come to a halt, it is necessary to say a little more. Although the Court of Appeal, in Triesman -v- Ali refused permission to appeal to the House of Lords, we are informed that the Respondents in that case have petitioned the House of Lords. We are also informed that no decision has been taken in the House of Lords upon that petition and it is not likely, according to current information, that such a decision will be taken before July at the earliest. It is not for us to second-guess what that decision will be.
14. Accordingly, and with the security of the common view of both parties, what we shall do is make the Order to allow the appeal, quashing the Decision, as we have already said, but we shall add to the Order a liberty to apply to the Employment Appeal Tribunal, limited to an application to apply for permission to appeal against our allowing of the appeal in the event, but only in the event, that the House of Lords agrees to hear an appeal by Mr Ali and Mr Sohal and decides that appeal in their favour.
15. In other words, if the House of Lords reverses the Court of Appeal on the section 12 point, then, and only then, would it be open to Mr Ishaq in the present case to return to the Employment Appeal Tribunal to seek permission to appeal to the Court of Appeal in the present case.