United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G MILLAR QC (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House 23-28 Great Russell Street London WC1B 3LW
For the Respondent	MR R ALLEN QC (of Counsel) Instructed by: The Bar Pro Bono Unit 7 Grays Inn Square London WC1 5AZ under a Bar Direct Licence MS A REINDORF (of Counsel)


 


SUMMARY
Race discrimination

Racial discrimination – characteristics of comparable person to applicant - inferences to be drawn from selection process adopted by respondent – whether decision reached was open to the Employment Tribunal.


 


THE HONOURABLE MR JUSTICE SILBER

I Introduction

1. Mr. M. Carter, who is the present General Secretary of the Labour Party, is sued on his own behalf and on behalf of all other members of the Labour Party ("the Appellant"), appeals against part of a decision of the Employment Tribunal sitting at Birmingham and dated 19 September 2003 relating to a complaint made by Raghib Ahsan ("the Respondent"). The appeal is against the Tribunal's unanimous decision that:-

"by declining, between 19 and 21 December 1997, to select [the Respondent] as a prospective candidate for the then forthcoming election to the Birmingham City council, [the Appellant] discriminated against [the Respondent] on racial grounds".

2. Although the Appellant is the present holder of the office of General Secretary of the Labour Party, it is more realistic to regard the Labour Party as the actual Appellant and we will do so. The Respondent is a Muslim of Pakistani origin, who was first elected as the Appellant's candidate to represent the Sparkhill ward ("Sparkhill") on the Birmingham City council ("the Council") in 1991. In 1994, he was re-elected for a further full term. In the run-up to the Local Government elections in May 1998, the Respondent sought re-adoption as a prospective candidate for Sparkhill on the Council, which is and was at all material times controlled by the Appellant. He was unsuccessful and it is that decision of the Appellant, which is the subject of the present appeal.
3. In a judgment delivered on 24 February 2004, this Appeal Tribunal presided over by its President Mr. Justice Burton determined a number of issues raised on the appeal but it left outstanding the appeal against the order with which we are now concerned.
4. This appeal raises, among other points, the interesting issue of how an Employment Tribunal should approach the selection of a comparator in the present case and in particular, what characteristics he or she should have.

II The Application

5. By his originating application, the Respondent complained that by the Appellant's failure in December 1997 to select him as a candidate for Sparkhill, for the forthcoming Council election, the Appellant had discriminated against him on racial grounds contrary to section 12 of the Race Relations Act 1976 ("the Act"). By way of comparator, the Respondent referred specifically to Ian Jamieson, who was a white male and who had been selected in place of the Respondent to be the Appellant's candidate for the vacant seat in Sparkhill. In both his skeleton argument and in his closing submissions before the Employment Tribunal, Mr. Robin Allen QC (who represented the Respondent both in front of the Employment Tribunal and in front of this Tribunal) relied additionally on Mr. Tony Kennedy, who was another selected white candidate, as an appropriate comparator.
6. By its original Notice of Appearance, the Appellant disputed the jurisdiction of the Tribunal to consider the Respondent's claim and it entered an unparticularised denial of the Respondent's claim. After an order had been made by the Employment Tribunal on 21 June 2000, the Appellant filed on 30 June 2000 further particulars of its grounds of resistance. The basis of the Appellant's defence was (i) that each of the candidates was asked the same question,(ii) that each candidate was scored against "Criteria to be examined in every candidate at their Interview" ("the specified criteria"), (iii) that the candidates with the highest score were selected and (iv) that the Respondent was not one of them. It is also said that "there were genuine grounds for refusing the [Respondent's] application for selection as a prospective local government candidate and that the [Respondent's] race played no part in the decision".

III The Relevant Statutory Provisions

7. The Respondent's claim is brought under Section 12 of the Act and the provisions of it which are material to the present appeal state that:-

"(1) It is unlawful for an authority or a body which can confer an authorisational or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person –

(a) in the terms on which it is prepared to confer on him that authorisation or qualification; or

(b) by refusing, or deliberately omitting to grant, his application for it; or

(c) by withdrawing from it or varying the terms on which he holds it".

8. Following the judgment of the President, Mr Justice Burton, following the hearing of the first part of this appeal, it is not now in dispute on the hearing of this second part of their appeal, that the effect of section 12 is that it is unlawful for the Appellant (which constitutes a "body" within the meaning of section 12(1)) to discriminate against a councillor or a prospective councillor, which qualifies a "profession" within the meaning of section 12(1) of the Act. This is so because selection as a candidate involved "recognition" in the campaign on the voting papers of the candidate as being the Labour party candidate; thus the Appellant was conferring on a selected candidate an "authorisation or qualification", which as defined by section 12(2)(a) includes recognition or approval, which was "needed for .. engagement in a particular profession", namely that of being a Labour councillor.
9. In this appeal, the sole dispute has been whether in selecting candidates and rejecting the Respondent, there had been discrimination on racial grounds. Section 1 of the Act is relevant as its provisions which are material to this dispute state that:-

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provisions of this Act if -

(a) on racial grounds he treats the other less favourably than he treats or would treat other persons .."

10. Section 3(4) of the Act is also relevant and it provides that:-

"A comparison of the case of a person of a particular racial group with that a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other".

IV The Background to the December 1997 Selection Process

11. It is now necessary to set out the background to the Respondent's claim and this is unavoidably rather lengthy. As we have already explained, the Respondent had in May 1994 been re-elected as a member of the Council to represent Sparkhill for a term of four years. In 1993, he sought re-adoption as the prospective Labour candidate for Sparkhill in the Local Government Elections due to take place in May 1998. At all the relevant times, the Council had been controlled by the appellant.
12. Of the population of Birmingham at the relevant time, 21.5% were members of ethnic minorities and almost a third of that group (6.9%) were, like the Respondent, Pakistani Muslims. The ethnic minority population in Birmingham was concentrated heavily in the inner city wards and, in particular, in Nechells, Small Heath, Washwood Heath, Sparkbrook and Sparkhill. At the material time, the population of Sparkhill was 37.7% white, 34.8% Pakistani, 14.5% Indian with the remaining 13% being made up by other smaller groups.
13. The Council gave housing regeneration grants to eligible individuals so that they could carry out home improvements with the general aim of improving the fabric of the housing stock in Birmingham. While he was a sitting councillor, the Respondent was actively involved first in encouraging eligible individuals to apply for such grants, second in assisting them to make such applications and third in helping them in their dealings with the relevant council departments in relation to their grant applications. The system of providing housing regeneration grants meant that there was a potentially large demand by applicants for the relatively scarce financial resources, which were available to the Council.
14. In order to cope with this problem, the Council introduced a system aimed at managing this potentially large demand by which interested parties were given what was, in effect, a "holding response" while they waited in a queue for their applications to be processed before later being issued with the essential application forms. One of the objectives of the campaign carried out by the Respondent and others was to encourage applicants for grants to circumvent that system first by making a direct application to the Council and then second by demanding a response from the Council to their applications within the period of six months stipulated by statute for providing such replies. This, according to the Employment Tribunal, was no more than an application procedure to which applicants were entitled but the circumvention by the applicants of the queuing system introduced by the Council had significant financial implications for the Council, which in consequence had to find resources more quickly than it had previously foreseen.
15. In 1995, the Appellant had suspicions concerning potential abuses of its membership system in certain of Birmingham's inner city wards with the pattern of its new membership appeared not to follow its expectations. What was happening was that unusually large numbers of people appeared to join the Labour Party at the same time or within a short space of time with a disproportionate large number of those new members appearing to be paying subscriptions at the lower level, which was the appropriate level for people, who were unemployed. There was also a lower than expected proportion of new female members and virtually all the new members were of Pakistani origin. Notwithstanding the increases in membership of the Appellant, there appeared to be a low level of active participation by the membership on important political issues.
16. On 26 February 1995, an article appeared in The Observer, which associated the housing regeneration campaign, which that newspaper called "queue jumping" with allegations of abuse of the party membership system. This was linked with the ambition of certain people to become the new member of Parliament for the Sparkbrook constituency in order to replace Mr. Roy Hattersley, who had by then announced his forthcoming retirement as the sitting member for that constituency. The Respondent was one of those named as having launched a campaign to encourage "queue jumping" for housing regeneration grants. A similar article in a broadly similar vain later appeared in the Daily Mail on 20 March 1995.
17. There was an immediate reaction to the article in The Observer, as the Appellant suspended four constituency Labour parties, namely those in Sparkbrook, Ladywood, Perry Barr and Small Heath, together with their constituent branches. As the result of the boundary changes instituted before the 1997 general election, those four constituencies were to be reduced to three in number, namely Ladywood, Perry Barr and the combined constituency of Small Heath and Sparkbrook, which would contain in total twelve wards. The consequence of the suspension of those parties was to prevent branches within those wards from functioning in any way as branches of the appellant. The letter of suspension from the Appellant made it clear that outstanding local government selections would be dealt with by a panel of members from the Regional Executive Committee. The Employment Tribunal noted that for the most part, the suspended wards were wards with a high concentration of ethnic minority groups while Hodge Hill, which was a predominantly white constituency was not suspended, even though the sitting member of Parliament had advised his constituents to apply for housing regeneration grants directly to the Council in a way similar to the way in which the Respondent had advised his Sparkhill constituents.
18. The Employment Tribunal found that the Appellant's reasons for suspending the four constituency parties, which were later reorganised to become three parties and their constituent branches were firstly, because of the allegations made in The Observer article of 26 February 1995 concerning the improper use of the grant allocation system and second because of concerns about possible membership abuse in those branches.
19. The Appellant also then introduced a verification system by which members of the party were required to prove their identity and addresses in order to be permitted to continue as members of the party. In consequence, those who failed to do so were liable to have their membership revoked. The purpose of this process was to highlight any recruitment irregularities, which might have occurred. In addition, the allegations made in The Observer article were investigated. An inquiry found that some councillors and members of Parliament had become involved in the housing regeneration grant process at an early stage; it concluded that their actions were lawful as being the legitimate actions of councillors and members of Parliament, who represented the best interests of their constituents, even though such interests conflicted with the policy of the Council, which was aimed at allocating scarce resources in a particular way. It was pointed out that the Council was not permitted to deny the legal rights of individual applicants for housing regeneration grants to have their applications for housing regeneration grants accepted or rejected within six months.
20. The conclusion of the report was that there was no evidence found of illegal actions by councillors or MPs but that "there is evidence to suggest that some individuals have become involved in the system at an early stage with unsolicited applications" (Paragraph 5.2 of the report). The report also stated that "there is evidence to suggest that John Woodcock has, in collaboration with some councillors/MPs knowingly directed applicants to obtain application forms in order to avoid joining the four-year backlog of inquiries".
21. With the assistance of the Respondent, a number of constituents complained to the Local Government Ombudsman about first the methods used by the Council to manage housing regeneration grant applications, second its failure to comply within the prescribed time limit of six months for processing such applications, third its failure to allocate sufficient resources to clear the backlog for improvement grant inquiries and finally its refusal to provide applicants with the required application forms for housing regeneration grant applications.
22. The Employment Tribunal did not set out the terms of the report of the Local Government Ombudsman made on 31 January 1995, but the gist of his report was critical of the Council. On 13 November 1995, the Appellant's Development and Organisation Directorate reported to its National Executive Committee on the progress of its inquiry into the four suspended parties. It referred to the membership verification procedures and it recommended that the responsibility for local government selection for the suspended wards should remain under the direction of the regional executive panel for the 1996 election and that it should be reviewed thereafter. Each branch's progress of managing membership verification had also to be monitored by the regional secretary over the next six months with a report being made to the Development and Organisation Committee meeting in May 1996.
23. In September 1995 and May 1996, the National Executive Committee resolved to lift the suspension on four of the branches but the suspension still continued on eight other branches, which significantly included Sparkbrook and Sparkhill. The Sparkhill branch of the Appellants drew up a draft action plan in November 1996 in which it referred to its verification procedure. On 24 October 1997, the Birmingham Development Officer wrote to the Secretary of the Sparkhill branch commending it on its verification procedure. In that letter, he also stated that he had written to the Appellant's Head Office suggesting that Sparkhill was "organisationally competent to be re-opened" and "after some 2¹/₂ years of relative inactivity, there does need to be some demonstrable commitment to some of the more modern thinking that has informed party organisation in that time".
24. The Employment Tribunal concluded that there was no evidence before it of any management irregularities either in Sparkhill or in any other branch having been proved by the Appellant. The branches did remain suspended but they were allowed to engage in the normal procedure of electing Parliamentary candidates for the forthcoming 1997 General Election.
25. As we have already explained, local government elections were to be held in Birmingham in May 1998 and the normal selection system of the Appellant was that each branch of the party would select a candidate for each vacant seat. In the case of those branches still suspended (which included Sparkhill), the National Executive Committee of the Labour Party decided on 26 November 1997 that a selection of candidates for those wards should be undertaken by a panel from the West Midlands Regional Executive Committee under the direction of the Appellant's Regional Secretary, Ms. Fiona Gordon and the Appellant's National Constitutional Officer, Mr. Mike Penn. The respondent expressed an interest in being reselected and he was invited for interview by the selection panel, who duly interviewed him on 19 December 1997.
26. The Employment Tribunal heard evidence from each member of the selection panel but no clear picture emerged as to how they set about performing its task. None of the notes made by individual members of the panel were retained while the members of the panel were not consistent with each other in their evidence on how they marked the various candidates. There were also, according to the Employment Tribunal, different views expressed about whether marks were given for the quality of the five-minute presentation given by each candidate. In addition, different views were expressed about the marks which were given for "overall impression".
27. No member of the panel was able to tell the Employment Tribunal with any certainty what were the maximum marks available, either in total or for each criterion. In addition, there were even differing views about the role played by the specified criteria. Some members of the Panel believed they had those criteria in front of them and used them as the basis for their marking, while at least one member stated that he had never seen them before. There was also uncertainty whether the specified criteria were used as a basis for marking at that interviews or whether they were simply the means by which the applicants' names were placed on the list of potential candidates in the first place. The Employment Tribunal concluded that "in all of these aspects the evidence in relation to the selection exercise was highly unsatisfactory".
28. The only contemporary documents relating to the selection process in front of the Tribunal were a list of the total scores awarded by each panel member to each candidate, a shortlist of 12 names and the list of those candidates finally selected with their allocation to the eight wards where seats were to be contested in May 1998. Even within the list of scores, there was, according to the Employment Tribunal, some dispute as to whether Mike Penn, the National Constitutional Officer had given the respondent 27 or 24 marks.
29. When the votes were counted, the Respondent was not among those who had received one of the eight highest scores and therefore he was not chosen as a candidate. The eight successful candidates were two candidates of Pakistani Muslim origin, one African Asian, one Afro-Caribbean, one of Indian origin and three white candidates, namely Tony Kennedy, Ian Jamieson and Mick Wright. Ian Jamieson was the candidate allocated to Sparkhill even though he had been a member in the Fox Hollies Branch. The membership verification procedure, which we have outlined, required members to verify their membership if they wished to retain their status as members, but Ian Jamieson did not verify his membership in Fox Hollies in 1996 or until 7 September 1997. According to the criteria for membership to which we have already referred, a candidate had to be a party member for 12 months at the time of the submission of his application.
30. The Employment Tribunal concluded that there was no impropriety attached to Tony Kennedy, but they had no doubt that the Appellant in the person of Fiona Gordon, firmly believed that if the members of the Sparkhill branch of the Labour Party had been permitted to select their candidate in the normal way, then the Respondent would have been selected. The Employment Tribunal considered that this belief might well have been well-founded in the light of the evidence they heard about the Respondent's popularity as one of the sitting councillors for Sparkhill.
31. On 21 December 1997, the Respondent was told by Fiona Gordon that he had not been selected. By a letter of the same date, the Respondent immediately complained to the Commission for Racial Equality ("CRE") about his treatment by the Appellant with a copy of that letter going to Fiona Gordon. On 23 December 1997, the Respondent sent a further letter to Fiona Gordon asking her first to provide reasons for the decision and second to inform him about the mechanism for an appeal. By a reply of 8 January 1998, Fiona Gordon informed the Respondent that there was no right of appeal and she gave no reasons for the Panel's decision "having consciously decided not to do so".
32. The decision of the Appellants not to select the Respondent as candidate for the Sparkhill ward provoked much adverse comment from the Sparkhill branch, councillors, a member of Parliament, a former member of Parliament and also from other interested parties. Doug Round was asked to accept a petition containing over 2,000 signatures in support of the Respondent and he passed that letter to Fiona Gordon, but he did not raise it at the Regional Executive Meeting. Furthermore, 65 out of the 87 Labour councillors on the Council sent a petition to the Appellant supporting the Respondent.

V The Race Relations Complaint

33. The Respondent followed up his complaint about the selection process contained in his letter to the CRE of 21 December 1997, with a questionnaire dated 17 March 1998, which was submitted to the Appellant on his behalf pursuant to section 65 of the Act. Surprisingly, the Appellant only replied 27 months later on 30 June 2000. The Employment Tribunal recorded that no satisfactory explanation had been given for this delay. They considered that one reason might have been that the Appellant was awaiting the decision of the Employment Appeal Tribunal on the preliminary issue heard by the Employment Tribunal in 1998, but that decision was announced in August 1999. The Employment Tribunal considered that in any event, the period of delay for answering the questionnaire from August 1999 to 30 June 2000 was not, in their judgment, "a reasonable period".
34. As the Respondent's lawyers considered the reply of the Appellant to be evasive and equivocal, the Appellant was asked to provide a copy of any notes taken by the Panel, but it replied that "no notes can be located". The Employment Tribunal noted that none of the witnesses could explain why notes taken by members of the panel had not been preserved. Mr. Penn, who had been present to monitor the procedure adopted, said that it had never occurred to him that the notes would not be preserved. He also said that he was never asked to locate his notes or anybody else's notes.
35. Ms. Fiona Gordon said in response to the questionnaire that she had probably thrown the notes away at the end of the meeting; the Employment Tribunal considered that evidence to be probably right, bearing in mind that further searches had brought nothing to light. These matters raised questions in the minds of the Employment Tribunal first, about how thoroughly Mr. Penn had monitored the procedure and second, whether the Appellant had retained the notes but could not find them.
36. The Employment Tribunal considered the reply to the questionnaire of the Appellant that "no notes can be located" to be "evasive in that it avoided stating that the [Appellant] could not locate the notes because it had destroyed notes". The Employment Tribunal also had no doubt that Fiona Gordon knew the notes should have been preserved and in consequence, the Employment Tribunal concluded that "the most charitable construction we can place upon her destruction of them is one of extreme carelessness".
37. In the questionnaire, the Respondent inquired about the criteria which prospective candidates were required to meet. In its response, the Appellant referred to its document "Criteria to be examined in every candidate at their interview". In his evidence to the Employment Tribunal, Mr. Penn identified the document and he went on to say that "we had another paper which set out the way the interview should be conducted, a description of the process". He then said it was "a further document which set out procedure, introductions, questions about probity etc…". The Employment Tribunal considered that from the Respondent's questions about criteria to be met and from his further questions asking for the questions asked from the candidates, it should have been clear to the Appellant that it was being asked to produce all documentation which it held and which was relevant to the process adopted by the selection panel. Mr. Penn was unable to explain to the Employment Tribunal why the Appellant's reply to the questionnaire did not disclose the existence of further documents to which he had referred in evidence. The Employment Tribunal considered the Appellant's replies to be "evasive".

VI The Employment Tribunal's Reasoning

38. The Employment Tribunal started by considering whether the evidence demonstrated any continuing justification for the suspension of the Sparkhill branch from February 1995 to December 1997 and onwards. It explained that it had not been made aware of any single case of membership abuse having been established, while the allegations surrounding the question of the applications for the housing regeneration grants were laid to rest in mid-1995 by the reports of the council and the Local Government Ombudsman to which we have already referred. In those circumstances, the Employment Tribunal could not find in the evidence any satisfactory reason for the continued suspension of the eight wards for almost three years until December 1997 and thereafter.
39. It was "noteworthy" for the Employment Tribunal that of the four reinstated branches, three had white populations of 89.1%, 94.8% and 85.5%, while the fourth reinstated ward, Sandwell, whilst being mixed had a low Pakistani population. In contrast, it stated that the eight remaining suspended branches covered almost all wards with a significant Pakistani population with the exception of Washwood Heath in the Hodge Hill constituency. Thus, the Employment Tribunal "could not avoid the conclusion that there was a close correlation, though falling short of a complete overlap, between suspended branches and those wards in which the Pakistani population was most concentrated". It noted that the Appellant suspected membership abuse particularly within the Pakistani population with the result that:-

"There clearly was a racial dimension to the consideration to suspend those branches where Pakistani members were numerous and where it was suspected that some at least of those members were guilty of abuses of the membership system".

40. The Employment Tribunal considered that the procedure adopted by the Regional Executive Committee panel on 19 December 1997 to be "haphazard in the extreme". The expectation that the presence of the Regional Secretary, Fiona Gordon and of the National Constitute Officer, Mr. Penn would bring some rigour to the selection proceedings did not transpire to be correct. It could not be safely said by the Employment Tribunal that the panel had proceeded in a standardised way with each member operating from the same guidelines and scoring in the same way. Furthermore, the approach of Fiona Gordon and Michael Penn to the retention and preservation of relevant documents was "extremely unsatisfactory". It was rendered the more surprising because, as we have explained, two days after the meeting of the panel, the Respondent had written intimating his dissatisfaction of the procedure to the CRE and he had sent a copy of this complaint to Fiona Gordon. Thus, the Employment Tribunal considered that it was plain at a very early stage that equal opportunity issues would be raised in connection with the non-selection of the Respondent.
41. In consequence, the Employment Tribunal was "extremely unhappy at the state of the evidence concerning the selection exercise because the picture which emerged was one of inconsistency and muddle". The Employment Tribunal stressed its dissatisfaction with the Appellant's explanation for its failure to preserve vital documents relating to the selection exercise, which they knew within two days was likely to be the subject of a serious challenge. The Employment Tribunal was very critical of the approach of the Appellant to his questionnaire submitted pursuant to section 65 of the Act. It considered the Appellant's responses to the "evasive" and it noted that the Appellant had provided no satisfactory explanation for his refusal to give its reasons.

VII The Employment Tribunal's Decision

42. Mr. Millar submitted to the Employment Tribunal that the fact that amongst the successful applicants were two Muslims of Pakistani origin suggested that the Respondent's race was not the reason for his failure to be selected. The Employment Tribunal regarded that there may be reasons relating to the race of a particular applicant, which did not apply equally to all members of that race. It pointed out that in the background to this case, there were a number of significant concerns operating on the minds of the panel, who were the decision-makers, in which the respondent and some, but not all of those, sharing his racial background were linked.
43. Those concerns of the Appellant affecting the Respondent were threefold. First, there were the allegations concerning the allocation of housing regeneration grants and the work of the Respondent in stimulating applications from those who were entitled to make them. The Employment Tribunal considered that it was probable that a significant proportion of those assisted by the respondent were of Pakistani origin. Second, there were the allegations of membership abuse which were themselves related in the Appellant's view to the housing regeneration grant allegations and the Appellants regarded the membership of the party of those of Pakistani origin to be particularly suspect. Finally, the Respondent's campaign in support of his constituents had led to embarrassing publicity which was adverse to the interest of the Labour-controlled Council, especially since it was the behaviour of the Council, and not that of the Respondent which was ultimately found to be at fault in the inquiries to which we have already referred.
44. The Employment Tribunal disregarded as not pointing to racial reasons for the Appellant's decision the fact that it considered whether or not the Respondent was part of the "new Labour" thinking. The Employment Tribunal considered that a political party was entitled to select candidates in accordance with its political thinking.
45. As we have explained, the successful candidate for the Sparkhill nomination was Ian Jamieson, who only verified his membership on 7 September 1997. This was significant because the first criterion in the "Criteria to be examined in every candidate at the interview" stated that the candidate "must be a party member for twelve months at the time of submission of application". By the verification rules introduced by the Appellant in the suspended branches, it was impossible for the Employment Tribunal to determine how the Appellant could properly have regarded Ian Jamieson to be a "verified" party member for 12 months as at December 1997. The Employment Tribunal therefore concluded that different rules were applied to Ian Jamieson from those which the Appellant applied to all its members; they looked to consider what the reason was.
46. The Employment Tribunal concluded that it was Mr. Penn who came closest to giving a proper answer when he said that:-

"It was felt he [Ian Jamieson] would run a very active campaign and was best placed to counter some of the problems which had arisen in the ward; I'm a bit vague, I do not recall; I think he had run before".

47. The reference in Mr. Penn's statement to "the problems which had arisen in the ward", according to the Employment Tribunal, "obviously" referred to the adverse publicity concerning the housing regeneration grants application issue and the Appellant's suspicions about membership abuses. The Employment Tribunal considered that both these matters:-

"were closely associated with the Pakistani community in the ward, of whom the [respondent] was a natural spokesman and advocate. The [appellant] associated the [respondent's] continuing representation of that ward with the continuation of those two perceived problems".

48. The Employment Tribunal noted that this was so even though the Respondent had been exonerated of any wrongdoing in connection with the allocation of grants and nothing had been established – whether against the respondent or at all – in connection with the membership abuse allegation.
49. Thus, the Employment Tribunal concluded that in the mind of the Appellant, both these matters remained problems and these matters were intimately associated with the Pakistani community who had three important special features. First, they constituted a large proportion of voters in Sparkhill, although the Employment Tribunal accepted that the Respondent conscientiously represented all of his constituents whatever, their race. Second, there were many among the Pakistani community who had applied for housing regeneration grants, which was not surprising since Sparkhill is a relatively deprived inner-city ward where sub-standard housing would tend to be more prevalent than in the better-off suburbs. They also considered that it is very probable that social deprivation, including poor housing, is concentrated disproportionately in the non-white community. Finally, the Pakistani community was suspected by the Appellant of participating in the membership abuse. We will refer to these three matters as "the three Pakistani Muslim factors" in the remainder of this judgment.
50. The Employment Tribunal considered that the Appellant identified the Respondent, who was himself a Pakistani Muslim origin with that section of the community in Sparkhill and with those three factors, which led to the embarrassment which the Appellant and the City Council had suffered in consequence. The Employment Tribunal considered that, "a councillor not of the same racial group would not in the [Appellant's] eyes be likely to identify with the Pakistani Muslim community, in particular or to pursue the same claim and perpetuate those problems for the party". That, according to the Employment Tribunal, explained why, as Mr. Penn had said, Ian Jamieson was said to be "better placed to counter some of the problems which had arisen in the ward". Indeed, the Appellant considered Ian Jamieson's lack of previous identification with the ward as being a positive advantage.
51. The Employment Tribunal considered that it was plain that the Appellant wanted the Respondent off the Council for more than one reason and:-

"the ethnic origin of the [respondent] and of Ian Jamieson were not irrelevant in the [appellant's] considerations. Considerations relating to the [respondent's] ethnic origin were a significant cause of his non-selection by the [appellant] in December 1997. The fact that the same considerations or some of them, might not have applied in the case of other candidates of the same racial origin as the [respondent] does not in our view alter the fact that the [respondent's] ethnic origins had a significant influence on the outcome of the selection procedure carried out by the [appellant]" [56].

52. The Employment Tribunal therefore upheld the complaint of discrimination on grounds of race but it also made it clear that it did not consider Mr. Kennedy to be an appropriate comparator because his circumstances were not in all material respects the same as those of the Respondent.

VIII The Grounds of Appeal

53. Mr. Gavin Millar QC for the appellants contends that the reasoning of the Employment Tribunal is flawed principally because:-

(a) it failed to select a suitable comparator and Mr. Jamieson was not a valid comparator ("Issue A – The Comparator Issue");

(b) it failed to appreciate the significance of the Respondent's political position within the Labour Party ("Issue B – The Political Philosophy Issue");

(c) it attached excessive importance to the failings in the Appellant's interview procedure ("Issue C – The Interview Procedure Issue").

IX The Approach required of the Employment Tribunal to this Complaint

54. In order to determine whether Mr. Millar's complaints are justified, it is now appropriate to consider how an Employment Tribunal should have approached the application of the Respondent, bearing in mind that specific named comparators were being put forward by Mr. Allen on behalf of the respondent in the form of Mr. Jamieson and Mr. Kennedy, who (unlike the respondent) were both white and who were both selected as candidates by the Appellant.
55. It was common ground between the parties that much assistance in resolving this appeal can be derived from the decision of the House of Lords in Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, even though in that case the relevant complaint was one of sex discrimination and the relevant legislation was a Northern Ireland statutory instrument. Significantly, the terms of that statutory instrument were insofar as is material to this appeal identical to those of the relevant provisions of the Act. Thus, when we refer to statutory provisions in any statements in the speeches in Shamoon, we will substitute the relevant identical provisions of the Act for those of the Northern Ireland statutory instrument.
56. There are four possible different matters which have to be considered by an Employment Tribunal faced with a race discrimination case in which a specified comparator (rather than a nominated comparator) is being put forward. The first stage is to ascertain the characteristics that the comparator should have. An Employment Tribunal is obliged under section 3(4) of the Act to compare a complainant to a person of another race who in all other respects has the same "relevant circumstances" as he has. Thus, for a person to be a suitable comparator, he or she must have the "relevant circumstances".
57. That exercise means that it is necessary to isolate the particular discriminative feature complained of so that apart from that feature, the position of the applicant and the comparator would be the same. As Lord Nicholls of Birkenhead explained in Shamoon:-

"It stands to reason that in making this comparison, with a view to deciding whether a woman who was dismissed received less favourable treatment than a man, it is necessary to compare like with like. The situation being compared must be such that, gender apart, the situation of the man and the woman are in all material respects the same" ([4] page 339g).

58. This exercise entails ensuring that the comparator has the same features as the complainant with the important exception of the discriminatory feature complained. In some cases it is easy to identify those factors, but, as we will explain, the present case was not such a case because of the difficulty of identifying the discriminatory features complained of.
59. The second step in a case in which an actual comparator (as opposed to a hypothetical competitor) is being put forward is to actually identify a specific person who has the same features as the complainant with the exception of the discriminatory feature. It is unnecessary to say anything in this judgment about hypothetical comparators because such a comparator was not considered in this case.
60. The third stage is to consider whether the claimant received less favourable treatment than the appropriate comparator, in what Lord Nicholls of Birkenhead described as the "less favourable treatment" issue (Shamoon [7] at 341). The fourth stage is to consider whether the less favourable treatment suffered by the complainant was on the relevant proscribed ground and this is what Lord Nichols described as the "reason why" issue (ibid). Lord Nicholls also explained that the last two steps really encompass a single question, namely "did the claimant, on the prescribed ground, receive less favourable treatment than others?" (Shamoon [8] at page 341).
61. It is important to bear in mind that, as Lord Nicholls explained, where the identity of the relevant comparator is a matter of dispute, the sequential analysis of the third and fourth issue steps may give rise to needless problems and so Lord Nicholls concluded that:-

"When formulating their decisions, Employment Tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment until after they have decided why the treatment was afforded to the claimant" (Shamoon [12] at page 342d).

62. Lord Rodger of Earlsferry explained that the "relevant circumstances" in the equivalent of section 3(4) of the Act are:-

"those which the alleged discriminator takes into account when deciding to treat the woman as he does or when deciding when to treat the man as he treats, or would treat, him" (Shamoon [134] at page 380g).

X Issue A – The Comparator Issue

63. At the forefront of Mr. Millar's submissions is the complaint that the Employment Tribunal erred in considering Mr. Jamieson as a proper comparator and he contends that in the same way as the decision of the Employment Tribunal in Shamoon was flawed by reason of a failure to identify a valid comparator (which in that case was a male chief inspector subject to complaints), so was the Employment Tribunal's reasoning defective in its decision, which is under appeal. Mr. Millar also submits the appropriate comparators to the Respondent were the Pakistani Muslim applicants, who were selected.
64. Mr. Millar says that Mr. Jamieson did not have a comparable track record to the Respondent as a Sparkhill councillor, nor did he have "the identification" with the perceived problems. Thus, it is said that he did not have the similar characteristics and was not a suitable comparator. Mr. Allen disagrees contending that the successful Pakistani Muslim applicants were not suitable comparators while Mr. Jamieson was a suitable comparator.
65. Mr. Millar submits that it is also not entirely clear how the Employment Tribunal viewed Mr. Jamieson and, in particular, whether he was a valid actual comparator or not. Mr. Millar says that the rejection of Mr. Kennedy being seen as "an appropriate comparator" in paragraph 57 of the Extended Reasons suggests Mr. Jamieson was an actual comparator, but that is a significant error. We consider that the Employment Tribunal regarded Mr. Jamieson as an actual comparator and thus our task is to determine if that approach was flawed.
66. So it becomes necessary to ascertain what characteristics should be possessed by the comparator to this Respondent. That entails analysing what were the aspects of the Appellant's decision not to select the Respondent which were racial. The Employment Tribunal concluded that "considerations relating to the [Respondent's] ethnic origin were a significant cause of his non-selection".
67. Those considerations were that the Respondent was "intimately associated" with the three Pakistani Muslim factors, to which we referred in paragraph 49 above. The Employment Tribunal explained that the Respondent was of Pakistani Muslim origin and the Appellants

"identified him with that section of the community and with those perceived problems and with the embarrassment which the party and the city council had suffered as a result of them".

68. The fact that the Respondent was a Pakistani associated with those Pakistani connected problems were the decisive factors in leading the Appellant not to select the respondent. A comparator should not possess these features. It is settled law that there can be discrimination by association as was the Employment Tribunal's decision in this case. Thus, in Zarczynska v. Levy [1979] ICR 184, this Appeal Tribunal held that the dismissal of a barmaid for refusing to obey her employer's instruction not to serve coloured people meant that the employer had treated her less favourably on racial grounds within the meaning of section1(1) of the 1976 Act.
69. Similarly, in Showboat Entertainment Centre Limited v. Owens [1984] ICR 65, this Appeal Tribunal upheld a decision that an employee had been discriminated on racial grounds when she had been dismissed for refusing to obey an instruction from her employer to exclude all black customers from the entertainment centre operated by her employers. Browne-Wilkinson J (as he then was) explained in relation to a comparator that:-

"Although one has to compare like with like, in judging whether there has been discrimination, you have to compare the treatment actually meted out with the treatment which would have been afforded to a man having all the same characteristics as the complainant except his race or his attitude to race" [page 73E].

70. The decision in Showboat was later approved by the Court of Appeal in Weathersfield Limited v. Sergeant [1999] ICR 425, where Pill LJ cited with approval (page 429) the statement of Browne-Wilkinson J in Showboat ([1984] 1 CR 65, 71) when he said, (with our italicisation) added that:-

"We therefore conclude that section 1(1)(a) covers all cases of discrimination on racial grounds whether the racial characteristics in question and those of the person treated less favourably or some other person. The only question in each case is whether the unfavourable treatment afforded to the claimant was caused by racial considerations".

71. In the same case, Swinton Thomas LJ approved at page 434D of another statement of Browne-Wilkinson J in Showboat, where he said of the words "on racial grounds" in section 1(1)(a) of the 1976 Act, that they:-

"are perfectly capable in their ordinary course of covering any reason for any action based on race, whether it be the race of the person effected by the action or of others" (page 70 with our italicisation added).

72. It therefore follows that in Browne-Wilkinson J's words, "racial considerations" or "any reason .. based on race" which could have led to unfavourable treatment afforded to a claimant have to be identified and they then have to be factored out so as to ensure that the comparator does not have them.
73. In our view, there is no reason why the three Pakistani Muslim factors set out in paragraph 49 above cannot be regarded as "racial consideration", or "reason[s] .. based on race". It would be strange if our law did not consider as a case of selection on "racial grounds" or for "reason[s] .. based on race" a situation in which the selector chose one white person in preference to another white person merely because that other unsuccessful white person had association with members of a different racial group.
74. As we have explained, the Tribunal selected Mr. Jamieson in preference to the Respondent because he, unlike the Respondent, was first not a Pakistani Muslim and second, a person who did not have the associations with which we have described in paragraph 49 above. We consider him to be somebody whom the Employment Tribunal was entitled to regard as an appropriate comparator and that conclusion underpins the conclusions of the Employment Tribunal.
75. It is appropriate now to consider Mr. Millar's contention that the appropriate comparators for the Respondent were the Pakistani Muslims, who were selected as candidates. The difficulty for Mr. Millar is the fact that the Appellants did not discriminate against all Asians does not automatically mean that they did not discriminate against the Respondent. As we have explained, the Tribunal attached importance to not only the ethnicity of the Respondent but also his identification and association with the three Pakistani Muslim factors specified in paragraph 49 above. The successful Pakistani Muslim comparators did not have the association with the three Pakistani Muslim factors.

XI Issue B – The Political Philosophy Issue

76. Mr. Millar contends that the Employment Tribunal materially misdirected itself as to the relevance for the selection of councillors showing loyalty to a particular ethos or political philosophy. He contends that the significance of the Employment Tribunal noting that the Respondent was "Old Labour" rather than "New Labour" was that it constituted a fact indicating that racial grounds were not a critical factor. Mr. Millar's complaint is that the Employment Tribunal seemed to have directed itself that this was not a material factor at all, while he contends it was a matter of importance.
77. In paragraph 53 of its Extended Reasons, the Employment Tribunal explained that the Appellant was entitled to choose "New Labour" should it wish to do so, but it went on to consider that for the reasons which we have already explained, the Respondent's "ethnic origins" had a significant influence on the outcome of the selection procedure carried out by the [Appellant] (paragraph 56 of the Extended Reasons). This constitutes a finding that the reason for the Respondent's non-selection was not his political affiliations.
    
78. The fact that the Employment Tribunal found that the Respondent's ethnic origins "had a significant influence" on the outcome of the selection procedure is sufficient to show adequate causation for a race discrimination claim. In O'Neill v. Governors of St. Thomas More Roman Catholic Voluntary Aided Upper School [1997] ICR 33, Mummery J giving the decision of this Employment Tribunal explained that:-

"The relevant principles are these: (i) the Tribunal's approach to the question of causation should be "simple, pragmatic and commonsensical". (ii) The question of causation has to be answered in the context of a decision to attribute liability for the acts complained of. It is not simply a matter of a factual, scientific or historical explanation of a sequence of events, let alone a matter for philosophical speculation. The basic question is: what, out of the whole complex of facts before the Tribunal, is the "effective and predominant cause" or the "real or efficient cause" of the act complained of? As a matter of common sense not all the factors present in a situation are equally entitled to be treated as a cause of the crucial event for the purpose of attributing legal liability for consequences. (iii) The approach to causation is further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of, though it must provide more than just the occasion for the result complained of. "It is enough if it is an effective cause"".

79. We are quite satisfied that the Employment Appeal Tribunal, who referred to O'Neill's case in its decision, approached this case in accordance with that guidance and duly found discrimination on racial grounds.

XII Issue C – The Interview Procedure Issue

80. Mr. Millar contends that a major strand in the reasoning of the Employment Tribunal was that when considering whether the less favourable treatment suffered by the Respondent was on a relevant prescribed racial ground, this involved the drawing of adverse inferences from procedural failures. Thus, it is said that the Employment Tribunal applied familiar employment standards to the process of party political candidate selection and it seems to have regarded aspects of the Appellant's conduct of the selection process concerning the candidates as unreasonable.
81. It is correct that the Employment Tribunal was very critical of the selection panel first for being unable to give the reasons why the Respondent was not selected, second for being unable to provide evidence of objective criteria for selection and third for failing to preserve the notes of panel members.
82. Thus, it is said by Mr. Millar that the Respondent applied familiar employment law standards, which were inappropriate in the context of the selection of a party candidate, rather than, say, the selection of an employee by an employer. Mr. Millar stressed that the panel were carrying out a political selection and thereby fulfilling the function of branch members. This, he says, is important because if the branches had not been suspended and a branch selection has taken place in the normal way, the Respondent would have been entitled to nothing more procedurally sophisticated than first the right to make a speech, second the obligation to be questioned and third a vote by secret ballot of a number of party activists. In those circumstances, Mr. Millar contends that in the selection process, there would be no objective criteria, no reasons supplied and no record kept other than the number of votes recorded. So it is said that this aspect of the reasoning of the Employment Tribunal is in error in equating employment law standards to race discrimination.
83. We are unable to agree because this case is not about "employment law standards", but about equal treatment in the employment field because after all, the Respondent's initial application was brought under Part II of the Act, which dealt with discrimination in the employment field. As we have explained in paragraphs 7 and 8 above, the Respondent's complaint falls under section 12 of the Act and that means that the other provisions of the Act apply. In performing that task, the Employment Tribunal was obliged to carry out an investigation of the kind that it did. The mere fact that the process could have been conducted in a different way with a secret ballot conducted by members does not mean the Employment Tribunal were somehow precluded from considering the selection process in the way in which it did.
84. Indeed, if that were not the case, it would automatically mean that a political party could act in disregard of race discrimination legislation merely by saying that a different selection process could have been used by it and that this would automatically mean that the Employment Tribunal would be precluded from considering the selection procedure. There is no basis to be found in the decided cases cited to us or in legal principles, which would underpin such an approach.
85. For the purpose of completeness, we should add that we do not make any criticism of the Employment Tribunal for commenting on the interview and selection process, particularly as in its further particulars of its ground of resistance, the Appellant contended that it had genuine grounds for refusing the Respondent's application for selection and that the Respondent's race played no part in the decision; these contentions meant that the Employment Tribunal was obliged to examine with care these reasons why the Respondent was not selected. It is significant that there is no evidence that the Employment Tribunal drew any inferences adverse to the Appellant from its selection procedure other than to point to the absence of any objective evidence showing the fairness of the selection procedure.

XIII Conclusion

At the end of the day, we have concluded that the matters put forward by Mr. Millar in his helpful and far-reaching submissions do not, whether considered individually or cumulatively, establish any error of law on the part of the Employment Tribunal. In essence, his case constituted a disagreement with the Employment Tribunal's factual findings but that does not mean that his appeal will succeed. In those circumstances, this appeal must be dismissed