- Mr
Rajendra Chaudhary is of Indian ethnic origin. He is now 44 years old. From December
1991 until July 1995 he was a Registrar in Urology at the North Manchester General
Hospital. The post was advertised in 1991 as offering "excellent training
in Urological Surgery" and as being "Royal College approved." He
had previously held posts as Senior House Officer and Registrar in Surgery, Senior
House Officer in Orthopaedics and Honorary Registrar in Urology.
- He
qualified in India in 1982. He became an FRCS of Edinburgh (December 1988) and
London (July 1989). He is the holder of a Diploma in Urology from the Institute
of Urology in London (July 1991). Since 4 January 1996 he has had a right of indefinite
residence in the UK.
- In
1995 Mr Chaudhary left the North Manchester General Hospital to become a researcher
in urology at the Christie Hospital, Manchester. From 19 February 1996 until 21
January 1997 he had a locum position in Urology at St Mary’s Hospital, Portsmouth.
Since then he has held locum Specialist Registrar and Consultant positions in
urology at St George’s Hospital, London; Leighton Hospital, Crewe; and Gartnavel
General Hospital, Glasgow.
Discrimination
disputes outlined
- Between
1997 and 2000 Mr Chaudhary started four sets of proceedings in the employment
tribunal. The claims were for direct and indirect race discrimination and victimisation
contrary to the Race Relations Act 1976 (the 1976 Act). There are two main disputes.
- The
first dispute concerns the application of the criteria laid down in March 1996
for entry into a new grade of Specialist Registrar. The case centres on whether
the Manchester post received the required official recognition from the appropriate
professional body. Mr Chaudhary claims that the application of the criteria for
entry into the new grade indirectly discriminated against the ethnic group to
which he belongs and therefore against him. As a result he was wrongly denied
transition into the new grade of Specialist Registrar. This has adversely affected
the attainment of his ambition to become a Consultant Urologist.
- The
authorities responsible for applying the criteria disagree with Mr Chaudhary.
They deny that there has been any race discrimination, direct or indirect, on
their part. They contend that Mr Chaudhary’s proper path to appointment as a Consultant
Urologist is through entry into the new training grade by open competition, as
opposed to the route of automatic entry for which he contends. He has not chosen
to take the path of open competition.
- The
second dispute is connected to the first. Mr Chaudhary was unsuccessful in his
application to the Specialist Training Authority of the Medical Royal Colleges
(the STA) to enter his name on the Specialist Register maintained by the General
Medical Council (the GMC). The GMC is the regulatory body for the medical profession.
It keeps and maintains medical registers, including the Specialist Register. A
doctor’s name can only be entered on the Specialist Register if he is able to
satisfy the STA that he is eligible for entry. Although entry on the Specialist
Register is a procedural and legal process distinct from entry into the new
training grade of Specialist Registrar, the refusal of entry to the new
training grade affected the fate of his application to be entered on the Specialist
Register and his eligibility for appointment as a consultant.
- The
normally smooth and swift progress of the tribunal proceedings to substantive
decisions has been seriously impeded by a crop of preliminary procedural issues
on time limits, jurisdiction and abuse of process. Rulings on those issues have
been made by the employment tribunal at different times. They have been appealed
to the employment appeal tribunal. Applications are now made to this court for
permission to appeal. Directions were given that all the applications should be
heard together by the same full court, with appeals to follow immediately in those
cases in which permission to appeal is given.
- It
will be necessary to give detailed consideration to each set of proceedings separately.
Some of the applications raise points of general interest to legal practitioners.
Others raise points of particular interest to medical practitioners and to the
professional bodies concerned. This is the first (and it may well be the last)
occasion on which all the current proceedings are before one court at the same
time. This court should take that opportunity to provide to all concerned a general
overview of the current state of the issues in the litigation and of the relevant
legislation. That approach is also a convenient way of putting each set of proceedings
and the various applications into their proper context. In performing this task
the court acknowledges its debt to counsel for the care that they have taken in
unravelling the procedural complications and in simplifying the issues. This judgment
has to deal with applications and appeals in four sets of proceedings. Hence its
unusual length and complexity.
II.
GENERAL BACKGROUND TO APPLICATIONS
New
Specialist Registrar Grade
- The
dispute started with the introduction into the National Health Service (the NHS)
of a new training grade system for junior doctors. It was launched on 1 December
1995. The reforms in specialist medical training followed the Calman Report on
Hospital Doctors:Training for the Future. A new training grade of Specialist
Registrar was to replace the existing grades of Registrar and Senior Registrar.
Doctors holding existing grades had to apply for entry to the new grade. Guidance
on the conditions and criteria for entry were set out in a Guide to Specialist
Registrar Training (the Orange Guide) produced and published by the NHS Executive
in March 1996. The Editor-in-Chief of the Guide was Professor JG Temple. With
effect from 1 April 1996 the postgraduate training arrangements described in the
Orange Guide came into effect in relation to the Specialist Registrar grade in
urology.
- There
was a period of transition of existing Registrars and Senior Registrars to the
new grade of Specialist Registrar. Application for entry to the Specialist Registrar
grade in urology had to be made in the transition period, which was fixed to end
on 15 July 1996. Otherwise it was necessary to enter the grade by open competition.
Mr Chaudhary contended that he satisfied the published criteria for transition:
he had acquired a right of residence before transition; he had the minimum entry
requirements of the relevant College (FRCS); and he was holding, or had held,
a substantive career registrar post with staffing and educational approval by
the relevant Royal College; alternatively, he became a visiting registrar through
an appointment process, which conformed to the criteria and conditions then in
force for an appointment to an NHS career registrar post. He was denied entry
to the Specialist Registrar grade solely on the basis that the registrar post
held by him in the North Manchester General Hospital had not received what was
officially considered to be the requisite approval. His complaint was that the
application of the criteria discriminated against him and, in particular, that
reference was made to matters not in the Orange Guide.
- Entry
during transition was only open to specified groups, provided that individual
candidates satisfied the minimum college or faculty criteria. The relevant groups
included the following referred to in paragraph 8 of Section 2 of the Orange Guide:
"a.
senior registrars and honorary senior registrars; and
b.
career registrars and honorary registrars who hold either a substantive career
registrar appointment or an honorary registrar appointment (for example, lecturers)
with staffing and educational approval (by the Royal College or Faculty) recognised
by the postgraduate dean; this includes substantive career registrars in this
category who are now occupying senior registrar posts on a locum basis."
-
It will be noted that mention was made of approval of a "career registrar
appointment" by "the Royal College or Faculty." The Royal College
of Surgeons of England is the relevant Royal College. It is responsible for setting
and supervising standards of surgical training. The STA has, since 12 January
1996, delegated to it and to the other Surgical Royal Colleges (the Royal College
of Surgeons of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow)
the responsibility, in the surgical specialities, for inspecting and approving
training posts in hospitals. The Royal Colleges also supervise certain educational
aspects of the trainees who occupy the posts, conducting surgical examinations
and conferring qualifications, such as the FRCS, and making recommendations to
the STA for the award of Certificates of Completion of Specialist Training (CCST).
The Royal College of Surgeons of England carries out its functions through a network
of appointed regional advisers, who advise the Postgraduate Deans on matters relating
to their specialities.
- The
Surgical Royal Colleges have a joint committee called the Joint Committee on Higher
Surgical Training (JCHST), which operates by means of advisory sub-committees.
There is a Specialist Advisory Committee in each of the surgical disciplines.
The relevant sub-committee in this case is the Specialist Advisory Committee in
Urology (SAC). Professor Mundy was the chairman of the SAC at the relevant time.
The SAC gave advice to Postgraduate Deans on applications for the new Specialist
Registrar grade. Its members also assessed, on behalf of the STA, applications
for entry on the Specialist Register maintained by the GMC.
- If
the criteria for transition to the new grade were satisfied, the applicant would
be given a National Training Number (NTN). Subject to guidance in the Orange Guide,
an NTN could be received by overseas doctors, who had acquired a right of indefinite
residence in the UK before or during transition. The applicant would enter a training
programme after an announcement by the Deanery Speciality Committee, which would
make recommendations to the Postgraduate Dean. A Specialist Registrar or a Senior
Registrar who thereafter completed his training would be entitled to the award
of a CCST.
Mr
Chaudhary’s application for NTN
- Mr
Chaudhary considered that he was entitled to an NTN under the new scheme. This
was understandable on his part, as his post at Manchester had been advertised
as "Royal College approved" and as offering "excellent training
in urological surgery."
- On
12 April 1996 Mr Chaudhary wrote to Dr HS Platt, the Regional Postgraduate Dean
for Wessex (which covered Portsmouth), seeking his advice and guidance about his
experience and training in urology, his trainee status and his aim to practise
eventually as a Consultant Urologist in the United Kingdom. He enclosed his CV.
- Dr
Platt replied on 17 April, asking for further information to be provided. He treated
Mr Chaudhary as having applied to enter the Specialist Registrar grade during
the transition period. As Postgraduate Dean, Dr Platt had overall responsibility
for postgraduate medical training in all specialities in his deanery. He was vested
by the Orange Guide with authority to decide, on advice from the relevant bodies,
whether a trainee could be transited to the new Specialist Registrar grade.
- Inquiries
by Dr Platt revealed that, although the post at the North Manchester General Hospital
had been advertised as "Royal College approved," and as offering excellent
training in urological surgery, it had not been approved by the SAC. It appeared
that Mr Chaudhary had not been on an approved training scheme and that he had
not been assessed by the training committee. Professor Mundy, as Chairman of the
SAC, took the view that only candidates who had held a career registrar post approved
by the SAC were eligible for an NTN in urology.
- Mr
Chaudhary was a member of the British Medical Association (the BMA), which represents
the professional interests and concerns of doctors on such matters as negotiations
with government. The BMA wrote on his behalf to Dr Platt on 15 July 1996 seeking
to clarify Mr Chaudhary’s Registrar post at Manchester. The letter stated that
Mr Chaudhary had received confirmation from his consultant, Mr Costello, that
it was "a substantive post and was recognised for training purposes by the
Royal College." It was contended that he met the criteria in paragraph 8
of the Orange Guide for entry during the transition period and that he should
be provided with an NTN.
- On
23 July 1996 Dr Platt informed Mr Chaudhary by letter that, although he and his
colleagues were sympathetic to his situation, the position was that the post of
Registrar held by him at Manchester "did not have SAC approval and that Professor
Mundy…. has determined that only where individuals have held SAC approved posts
will they get a National Training Number." He was told that he would have to compete
for Specialist Registrar posts, as and when they were advertised.
- The
ensuing correspondence between Mr Chaudhary, Dr Platt, Professor Mundy, the BMA,
the Department of Urology in Manchester and others did not lead to any change
in the official view of the Manchester post.
- In
October 1996 Mr Chaudhary informed Dr Platt that he wished to appeal against the
decision not to award him an NTN in urology, as he believed that his previous
training record met all the normal entry requirements. He cited paragraph 8 of
the Orange Guide and he referred to the advertisement for the Manchester post.
- After
an oral hearing on 14 January 1997, his appeal was dismissed. The findings were
confirmed in a letter dated 7 February 1997, explaining that, although he held
the minimum entry requirement to the grade of Specialist Registrar (i.e. FRCS),
"…the
appointment process to [the] Registrar post in North Manchester did not conform
to the criteria and conditions then in force for an NHS Career Registrar post.
This is because the post was not recognised by the SAC in Urology for Higher Specialist
Training."
- Mr
Chaudhary was assured that this was the unanimous view of the panel and that it
was consistent with decisions made throughout the speciality of urology. He was
advised to apply for Specialist Registrar posts leading to his being placed on
a training programme.
- A
number of points about Mr Chaudhary’s case were noted at that time by Dr Platt,
who was a member of the five man appeal committee: posts recognised by the Royal
College did not need SAC approval in 1991; junior doctors, particularly pre-Calman,
did not often know the difference between Royal College approval and SAC approval;
the post was correctly advertised, in his opinion, as having "Royal College
approval"; there was no mention in Part 2 of the Orange Guide that converted
posts must have had SAC approval. He maintained that, if the Royal College of
Surgeons was not careful in this case, "it could be viewed as racially discriminatory
to impose the need for [Specialist Registrars] to come from posts with SAC approval,
as this would exclude all Visiting Registrar posts and therefore all non-EEA doctors",
though he recognised that that was not a matter for the Dean.
- Mr
Chaudhary took the matter up with the Junior Doctors Committee of the BMA. On
21 April 1997 a letter was written on his behalf by the Committee’s secretary
to Professor JG Temple, asking him to look into what was alleged to be an inflexible
approach to the application of the criteria to Mr Chaudhary. Professor Temple
is an eminent specialist. He was a Special Adviser to the Chief Medical Officer,
Chairman of the Calman Implementation Steering Group and Editor-in-Chief of the
Orange Guide.
- In
his reply of 30 April 1997 Professor Temple pointed out that he did not as a rule
take up specific cases, but he would refer the matter to the Postgraduate Dean
of the North West Deanery (Dr Hayden) for her view. Dr Hayden, who was familiar
with Mr Chaudhary’s case, was of the view that the advertisement for the Manchester
post was "technically correct," but that post-Fellowship posts had to
have SAC approval for higher training. In his letter of 1 August 1997 to the Junior
Doctors Committee of the BMA, Professor Temple stated his view that Mr Chaudhary
was not entitled to an NTN under the transition arrangements. He confirmed the
view of the Appeal Panel that the post held at the North Manchester General Hospital
was not a post approved by the SAC, the appropriate education authority. Professor
Temple commented that "the actual recognition of this post is clouded in
the confusing phraseology (Royal College approved etc)…", but he added that
it was quite clear that, during the time that Mr Chaudhary was there, it was quite
specifically not a post which had been inspected and approved by the SAC in Urology.
In a letter of 20 November 1997, responding to a further letter from the Junior
Doctors Committee, Professor Temple stated that he believed that his letter of
1 August must stand. One of the issues in the case is whether that letter was
a fresh decision on Mr Chaudhary’s application for entry to the new grade.
Southampton
tribunal proceedings
- On
2 December 1997 Mr Chaudhary presented his first originating application to the
employment tribunal at Southampton. He complained of "continuing racial discrimination
since 12-10-91." The application made it clear that his claims were for continued
race discrimination, both direct and indirect. He decided to start proceedings
in the employment tribunal, having met on 25 October 1997 another Asian doctor,
Mr Dilip Malkan, whose training had not been recognised and who was pursuing a
tribunal claim for race discrimination. The Royal College of Surgeons and its
SAC, Dr Platt, the NHS Executive HQ and the Department of Health were named among
the 7 respondents. (This was reduced to 6 when Dr Platt was dismissed from the
proceedings by a consent order dated 9 March 1999). In the notices of appearance
the point was taken that the tribunal had no jurisdiction to hear the complaint
in so far as it related to acts occurring on or before 2 September 1997, as it
was out of time. It was denied that the act complained of was "an act extending
over a period." Mr Chaudhary supplied further and better particulars of his
complaint. A date was later fixed for the hearing of a preliminary issue on the
time limit point.
- At
the hearing of the preliminary issue, which was adjourned several times, evidence
was given by Mr Chaudhary and by Professor Temple. A witness statement by Mr Chaudhary
made it clear that his complaint included a claim that the application of the
critieria for recognition of the Manchester post had disadvantaged him on racial
grounds. The counsel then acting for Mr Chaudhary submitted that one of his client’s
complaints was that the Royal College had, through the SAC, departed from the
criteria set by the Department of Health in the Orange Guide and had applied a
racially discriminatory policy in not recognising his training at Manchester.
The policy had given rise to the decision not to allow Mr Chaudhary entry to the
new training grade. It was also contended that Professor Temple had approved what
had gone on and that he had taken a decision relating to Mr Chaudhary’s application
for entry under the transitional arrangements.
- In
his witness statement Professor Temple explained that the purpose of his letter
of 20 November 1997 was to re-iterate that, in his opinion, the original decision
had been correct. In his oral evidence to the tribunal he explained that he did
not treat the approaches made to him as an appeal. He was not the Postgraduate
Dean. He was being asked for an opinion. It was not in his power to change these
things. It was not his responsibility to come to a decision. He was simply trying
to help and to be fair.
The
STA application
-
On 23 December 1997 Mr Chaudhary began to explore another avenue. He applied to
the STA for assessment for "mediated entry" to the Specialist Register,
which contains the names of doctors eligible to take up consultant posts. After
1 January 1997 entry on the Specialist Register became a requirement for appointment
as a consultant. That register is maintained by the GMC under the European Specialist
Medical Qualifications Order 1995 (the 1995 Order), which was made under section
2(2) of the European Communities Act 1972 to implement EC Directive 93/16 under
Article 39 (previously Article 48) of the Treaty. The Directive is designed to
facilitate the free movement of doctors in the European Union. The 1995 Order
created a new system for training specialists and established the STA and the
Specialist Register. The STA is the designated competent authority for determining
entry on the Specialist Register. It determines the applications of doctors who
wish to be enrolled on the Specialist Register. It is responsible for approving
specialist medical training intended to lead to the award of a CCST. Members of
the STA are appointed by various bodies, including the Royal Colleges, Faculties,
the GMC and the Secretary of State.
- There
are several routes for entry on the Specialist Register. For someone in the Specialist
Registrar grade undertaking training in the UK, entry to the Specialist Register
is through an award of the CCST, which is given following satisfactory completion
of Specialist Registrar training. It automatically meets the educational requirements
for the holder to be admitted to the Specialist Register. There were also transitional
provisions, some of which were time limited and have now expired, which allowed
doctors who met transitional entry criteria to enter the Specialist Register.
- The
1995 Order came into effect on 12 January 1996. It was later amended by the European
Specialist Medical Qualifications Amendment Regulations 1997 (the 1997 Regulations)
to provide recognition to qualifications and experience of doctors who had worked
in non-training grades in the UK or had qualified and worked overseas.
- On
28 September 1998 the STA informed Mr Chaudhary that his application for entry
to the Specialist Register under Article 12(2) (c) (i) and (ii) of the 1995 Order
was unsuccessful, because they did not accept much of his UK training. He was
notified of his right of appeal.
- On
1 November 1998 Mr Chaudhary wrote to Dr Platt enclosing a copy of the document
received from the STA headed "JCHST- Non Consultant Career Grade Doctors
Checklist." He contended that, according to that document, the STA, in reaching
their decision, had treated 24 months of his time spent as a Registrar in Urology
at North Manchester General Hospital as "recognised by the panel." He
contended that he therefore qualified for automatic entry into the Specialist
Registrar grade. Dr Platt replied on 15 December 1998, maintaining that the STA
recognition for entry to the Specialist Register differed from recognition by
the SAC for entry to the Specialist Registrar grade. He repeated that the matter
had been fully considered and determined in the past. One of the issues in the
case is whether that letter was a new decision on his application for entry to
the new training grade, giving rise to a fresh cause of action for a discrimination
claim under the 1976 Act.
The
Manchester tribunal proceedings
- On
23 December 1998 Mr Chaudhary presented a second originating application, this
time to the employment tribunal in Manchester. He complained of race discrimination.
The complaint included reference to Dr Platt’s letter of 15 December 1998, which
was relied on as a new decision on his application for transitional entry, as
well as to the earlier history of the dispute. The STA, the Royal College of Surgeons
and the SAC, Dr Platt, the NHS Executive HQ and the Department of Health were
named among the 9 respondents. The point was taken by some of the respondents
that the complaint was an abuse of process, as it raised matters which were the
subject of the Southampton complaint. The issues in both sets of proceedings were
whether Mr Chaudhary was entitled to enter the Specialist Registrar grade during
transition and the status of the Manchester post. Some of the respondents objected
to two applications being allowed to proceed at the same time in two different
tribunals, as they raised the same issues against some of the same respondents.
STA
appeal panel
- Mr
Chaudhary continued to challenge the STA decision. On 24 May 1999 the original
decision was confirmed on a review requested by Mr Chaudhary. Mr Chaudhary appealed.
He included a complaint of race discrimination in his notice of appeal lodged
on 16 August 1999. On 9 August 2000 the legally qualified chairman of the STA
appeal panel, Mr David Farrington, declined to order the STA to respond to a race
relations questionnaire submitted by Mr Chaudhary. The questionnaire was in the
style of that required by section 65 of the 1976 Act. The notification letter
informed Mr Chaudhary that the appeal panel would consider, among other issues,
whether the requirements of the STA were in compliance with the law and, if so,
whether those requirements were followed.
- On
13 September 2000 Mr Farrington made a further ruling in response to a letter
of 7 September 2000 from Mr Chaudhary’s solicitors, asking for confirmation that
the appeal panel would consider and determine whether Mr Chaudhary had suffered
racial discrimination. Mr Farrington decided that the appeal panel would not consider
and determine the allegations of race discrimination. The grounds of the refusal
were that the allegations were not "integral to his appeal" and were
"bare assertions unsupported by any evidence." The decision letter stated
"
6. The principal function of the Appeal Panel is to decide the Appeal. It is not
under a duty to pronounce separately on a complaint of racial discrimination,
particularly where in the context of the Appeal that ground has not been substantially
relied upon. The decision in R v.Department of Health ex parte Ghandi [1991]
4 All ER 547 is relevant."
- In
a further letter of 22 September 2000 Mr Chaudhary’s solicitors set out in detail
the claims of race discrimination, which they submitted were integral to the appeal
due to be heard on 28 September 2000. They included complaints of direct and indirect
discrimination in respect of the requirement of time spent in a post approved
by the SAC. Victimisation of Mr Chaudhary was also alleged to have taken place.
Reference was made to an intention to apply for permission for judicial review
of the decision not to consider the issues of race discrimination.
- The
appeal panel responded through Mr Farrington on 27 September 2000. The appeal
panel declined to amend the order of 13 September on the day before the hearing
on the ground that it would be unfair to the STA to do so. The examples of race
discrimination referred to in the letter of 22 September had not been disclosed
at an earlier stage, when appropriate steps could have been taken to investigate
them. The response acknowledged that the race discrimination issues would be dealt
with by the appeal panel, if the Divisional Court decided that they did form part
of the appeal.
- The
appeal panel dismissed the appeal on 29 November 2000. Written reasons for the
decision dated 26 April 2001 were sent to Mr Chaudhary on 8 May 2001. The appeal
panel dismissed his appeal under Article 12(2)(c)(i) of the 1995 Order on the
ground that "his training did not comply with the requirements current at
the time that the training in the speciality was undertaken." (paragraph
31 of the Reasons for Decision). This was the consequence of the Manchester post
not being a post approved by the SAC, even though Mr Chaudhary submitted that
he had been led to believe by the terms of the advertisement that the post was
"Royal College approved" and mentioned training in urology. Mr Chaudhary’s
appeal under Article 12(2)(c)(ii) was allowed in part, so that he would have to
undertake a further 21 months’ (rather than 25 months’) training and pass the
Intercollegiate Board Examination.
- In
the course of the employment tribunal proceedings correspondence between the Chief
Executive of the STA, the Director of Appeals, the Appeals Secretary and Mr Farrington
were disclosed. The letters passing between them in August and September 2000
concerned such matters as the jurisdiction of the appeal panel to consider complaints
of race discrimination, its duty to take any discrimination into account (in the
light of the decision of this court in Ghandi) and consideration of the
appointment under Appeal Regulation 11 of an assessor with expertise in race discrimination
to be present at the hearing or to review the documentation. (An assessor was
in fact appointed to be present at the appeal hearing on 28 and 29 September and
29 November 2000 and to advise the Appeal Panel). Mr Chaudhary complained that
copies of the letters should have been supplied to him at the time.
- On
7 June 2001 Sullivan J refused a renewed application by Mr Chaudhary for permission
to apply for judicial review of the appeal panel’s decision to refuse to hear
his claims of race discrimination. Sullivan J held that the decisions of the appeal
panel on 13 and 27 September 2000 were "fully justified" and that the
chairman of the appeal panel, faced with "unparticularised assertions of
indirect discrimination," had taken "a perfectly reasonable approach."
Mr Chaudhary did not seek to renew his application in the Court of Appeal.
Manchester
tribunal proceedings (STA)
- On
25 July 2001 Mr Chaudhary presented a third originating application, this time
to the employment tribunal in Manchester, complaining of direct and indirect race
discrimination and victimisation in respect of the rejection of his appeal by
the appeal panel. He also joined the STA, the Royal College of Surgeons and the
SAC as respondents, alleging that they were liable under s 33 of the 1976 Act
for aiding acts of discrimination and victimisation by the appeal panel.
BMA
tribunal proceedings
- In
the meantime, on 1 March 2000, Mr Chaudhary had presented to the employment tribunal
a fourth originating application complaining of direct and indirect race discrimination
by the BMA. He claimed that, at various times in the period 1997-1999, they had
failed to provide him with adequate support and assistance in relation to the
complaints which he wished to make and did make of race discrimination by professional
and regulatory bodies. That discrimination was alleged to have occurred when he
applied to be entered on the new training grade of Specialist Registrar in urology.
- The
indirect discrimination alleged against the BMA took the form of a requirement
or condition that, in order to be supported in discrimination claims, the member
must not be alleging race discrimination by a Royal College, the STA, the SAC
or a postgraduate dean (as distinct from a claim against a NHS Trust or a Health
Authority.)
I.
PARTICULAR PROCEEDINGS, APPEALS AND APPLICATIONS
A.
BMA proceedings, appeals and application
- On
24 September 2001, after a 15 day hearing, the employment tribunal sitting at
Manchester, found in favour of Mr Chaudhary on his complaints of indirect race
discrimination and victimisation against the BMA. They rejected his complaint
that the BMA had discriminated against him on racial grounds by refusing to assist
him in claims of race discrimination; but they found in his favour on the basis
that the BMA had applied the requirement or condition that, in order to be supported
in claims of discrimination, a member had not to be alleging race discrimination
by a Royal College, a member of the SAC a Postgraduate Dean or the STA. A considerably
smaller number of Asian members could comply with that requirement than others.
Mr Chaudhary could not comply.
- On
appeal by the BMA, the employment appeal tribunal (Mr Recorder Langstaff QC presiding)
held, at a preliminary hearing on 30 April 2002, that one of the grounds of appeal
(i.e. perversity in finding a requirement or condition imposed by the BMA contrary
to section 1(1)(b) of the 1976 Act), was not reasonably arguable and directed
that the appeal on that ground should not proceed to a full hearing.
- The
perversity ground is not directed at re-opening primary findings of fact. It involves
challenging inferences to be drawn from the primary findings of fact.
- There
is also a cross appeal against the tribunal’s rejection of the claim by Mr Chaudhary
for direct discrimination.
- The
BMA sought and were granted permission to appeal on 1 November 2002 The hearing
in the Court of Appeal was listed for two days between 7 and 9 April 2003.
- In
the meantime a two day remedies hearing has taken place in the employment tribunal.
By their decision, as recorded in extended reasons sent to the parties on 19 June
2002, Mr Chaudhary was awarded £814,877.41, including interest, for loss of the
chance (estimated at 50%) of putting his career right by persuasion or litigation.
That loss resulted from indirect race discrimination in the failure of the BMA
to support his claim against Dr Platt and others. The BMA are also appealing that
decision to the appeal tribunal.
- The
parties agreed to ask this court to allow by consent the BMA appeal against the
limitation placed on the grounds of its appeal by the employment appeal tribunal
and to make an order that the matter be remitted to the appeal tribunal for a
full hearing on the merits on the basis that all the grounds of appeal, including
perversity, are arguable. On consideration of the decisions of the employment
tribunal and the appeal tribunal and of the skeleton arguments on the appeal,
this court concluded that it was appropriate to make an order in the terms of
the draft consent order.
- This
court also considered that copies of the Chairman’s notes of evidence on discrete
points should be produced, as requested by Mr Chaudhary and as set out in the
draft order. Accordingly on 11 February 2003 the court made an order remitting
the matter to the employment appeal tribunal for a full hearing of BMA’s appeal.
It was also indicated by the court that it would be convenient for the BMA appeal
on remedies to be heard at the same time as the appeal on the issue of liability.
- All
the remaining appeals are essentially challenges to procedural decisions in proceedings,
which have not yet been decided on the merits. In each case there is an application
for permission to appeal. I shall deal with each in turn.
B.The
Southampton proceedings, appeal and application (2001/1894)
- The
proposed appeal in this case concerns time limits for bringing proceedings for
race discrimination in the employment tribunal. It turns on whether a question
of law arises from the employment tribunal’s application of section 68 of the
1976 Act to the facts of the case. The period within which proceedings are to
be brought is set by section 68 as follows-
"(1)
An employment tribunal shall not consider a complaint under section 54 unless
it is presented to the tribunal before the end of-
(a)
the period of three months beginning when the act complained of was done; or
(b)
[not material]
(6)
A court or tribunal may nevertheless consider any such complaint, claim or application
which is out of time if, in all the circumstances of the case, it considers that
it is just and equitable to do so.
(7)
For the purposes of this section-
(a)
[not material]; and
(b)
any act extending over a period shall be treated as done at the end of that period;
and
(c)
a deliberate omission shall be treated as done when the person in question decided
upon it;
and
in the absence of evidence establishing the contrary a person shall be taken for
the purposes of this section to decide upon an omission when he does an act inconsistent
with doing the omitted act or, if he has done no such inconsistent act, when the
period expires within which he might reasonably have been expected to do the omitted
act if it was to be done."
- In
Extended Reasons sent to the parties on 25 June 1999 the employment tribunal sitting
at Southampton held, on a preliminary point considered at hearings (which started
in July 1998, were adjourned in September 1998 and were not finally concluded
until the end of March 1999), that all the claims for race discrimination against
all the respondents in respect of the refusal of entry to the Specialist Registrar
grade were at least 7 months out of time; that there was no act extending over
a period within section 68(7) of the 1976 Act; and that it was not just and equitable
to extend time under section 68(6).
- The
tribunal accepted the evidence of Professor Temple that he did not make any decision
on the application of Mr Chaudhary for Specialist Registrar status, so that the
letter written by him on 20 November 1997 (i.e. within the period of three months
before the issue of the proceedings) could not be relied on as an act of discrimination
for which the respondents could be held liable. He was not in a position to alter
anything. The formal process had already taken place. He was merely giving his
own opinion as the Special Adviser. He was simply trying to help.
- The
tribunal went on to hold that there was no act extending over a period as the
acts relied on as discrimination did not constitute the maintenance or operation
of a scheme extending over a period or the application of a policy, rule or practice
extending over a period.
- In
refusing to extend the time the tribunal accepted the evidence of Mr Chaudhary
about Mr Malkan telling him on 25 October 1997 about his claim in the employment
tribunal for racial discrimination. The tribunal concluded that there was no proper
explanation for the delay in presenting an application some 7 months out of time.
Mr Chaudhary had been kept fully informed of developments by Dr Platt from April
1996 onwards. He had continued to receive advice and assistance from him after
the initial decision and after the appeal had been heard. He had also received
advice from the BMA, who were contending on his behalf that his post in North
Manchester did qualify him for entry into the Specialist Registrar grade. Even
after his contact with Mr Malkan on 25 October 1997, which he had not mentioned
in his originating application, he had not presented his application until 2 December
1997. The tribunal were not certain that the "claim is a very strong one,"
adding, however, that the delay had not prejudiced either party in the preparation
and conduct of the trial. On balance they considered that it was not just and
equitable to extend the time.
- In
a judgment delivered on 19 July 2001 the employment appeal tribunal (Miss Recorder
Elizabeth Slade QC presiding) dismissed Mr Chaudhary’s appeal on the ground that
the employment tribunal did not err in law. The appeal tribunal held (paragraph
16) that, whether Mr Chaudhary’s claims were regarded as of direct discrimination
or, as is more likely, of indirect discrimination, they were founded on the application
of allegedly discriminatory rules on admission to Specialist Registrar status
to his case. In those circumstances the employment tribunal were entitled to conclude
that the matters complained of were not acts extending over a period and that
time ran from the dismissal of Mr Chaudhary’s appeal, that being the last decision
taken on his application (paragraph 20). They also held (paragraph 23) that reliance
on Professor Temple’s letter did not assist Mr Chaudhary on time limits, as he
took no decision on Mr Chaudhary’s application for Specialist Registrar status.
As for the tribunal’s refusal to extend time, the appeal tribunal concluded that
the employment tribunal had not erred in their approach to the exercise of their
discretion nor was the decision perverse.
- Mr
Chaudhary sought permission to appeal. Mr Hendy QC applied, on his behalf, to
amend his revised grounds of appeal to re-introduce the question whether this
is a case of an act extending over a period. The point was taken in the employment
tribunal, in the appeal tribunal and in the grounds of appeal as originally drafted.
Through an apparent oversight it was omitted from the revised grounds. I would
allow the amendment to be made. Adequate notice was given of the intention to
apply for permission to amend. The respondents were not prejudiced by it. It was
the main ground relied upon in respect of the claim for indirect discrimination.
- It
was also contended that the tribunal erred in law in finding that Professor Temple’s
letter written within the period of three months before the presentation of the
originating application was not a decision in relation to Mr Chaudhary, as his
involvement was not part of the process; and that the tribunal erred in law in
refusing to exercise their discretion to extend the time limits under s 68(6).
-
I would only grant permission to appeal on the continuing act point, but I would
dismiss the appeal on that point. On the other two points I conclude that an appeal
has no real prospect of success and would therefore refuse permission to appeal.
Act
extending over a period
- I
agree with the conclusion of the tribunal, which was upheld by the appeal tribunal,
that Mr Chaudhary’s complaint of race discrimination was not of an act extending
over a period. His complaint of indirect discrimination was based on the application
to his case of the requirement or condition that the Registrar post, held by Mr
Chaudhary at Manchester, should have been one that was approved by the SAC. That
requirement or condition was last applied to him when his appeal against the decision
of the Postgraduate Dean, Dr Platt, was dismissed by the Appeal Committee. It
held that the Manchester post did not entitle him to transition to the new Specialist
Registrar grade, as it was not recognised by the SAC. The dismissal of the appeal
was formally notified to Mr Chaudhary on 7 February1997. Although the requirement
or condition may have continued in existence for the purpose of being applied
to appeals by other Registrars seeking entry into the new grade, there was no
continuing application of the requirement or condition to Mr Chaudhary
in the period of three months prior to the issue of his proceedings. The period
during which the condition or requirement was applicable to Mr Chaudhary’s application
for transition to the Specialist Registrar grade had ceased to operate when his
appeal against refusal was decided. That was well before the three month period
prior to the presentation of his originating application.
- As
for the authorities cited, this case is covered by the reasoning of this court
in Rovenska v. General Medical Council [1998] ICR 85 at 94 based on the
wording of section 1(1)(b) of the 1976 Act that indirect discrimination occurs
when a person "applies" to another a discriminatory requirement or condition
to his or her detriment. Cases such as Rovenska and the instant case, in
which applications are made for registration by regulatory authorities and are
rejected, are distinguishable from the cases in which an employer continuously
applies a requirement or condition, in the form of a policy, rule, scheme or practice
operated by him in respect of his employees throughout their employment: see Barclays
Bank plc v. Kapur [1991] ICR 208; Cast v. Croydon College [1998] ICR
500 at 515B; Owusu v. London Fire and Civil Defence Authority [1995] IRLR
574.
Professor Temple’s Role
- I
agree with the appeal tribunal that no question of law arises from the decision
of the employment tribunal that Professor Temple’s letter of 20 November 1997
did not constitute a decision on Mr Chaudhary’s application to enter the Specialist
Registrar grade, which would amount to a one off discriminatory act and would
mean that the proceedings were brought in time. The employment tribunal were entitled
to accept the evidence of Professor Temple and to find as a fact that he did not
make a new decision on Mr Chaudhary’s application.
Refusal
to extend Period
- I
also agree with the appeal tribunal that no question of law arises from the refusal
of the employment tribunal to exercise their discretion under s 68(6) to extend
the period. Many detailed points on this ground of appeal were made in the written
submissions to the effect that the employment tribunal had failed to take into
account "all the circumstances" as required under s 68(6). It was submitted
in the skeleton argument that they had failed to take into account Mr Chaudhary’s
state of knowledge and his explanation for the delay until 2 December 1997 in
issuing proceedings. It was also submitted that they had wrongly taken into account
irrelevant factors, such as the advice obtained by Mr Chaudhary from Dr Platt
and the BMA, the fact that he had not referred in his originating application
to the knowledge obtained from Mr Malkan about his claim for race discrimination
and their perverse view that they were not certain that his claim was "a
very strong one", when in fact it was strong. I do not propose to deal in
detail with each of these criticisms, as most of them were not pursued at the
hearing of the appeal. Mr Hendy concentrated on the point that the tribunal had
relied on the fact that the effect of the knowledge obtained from Mr Malkan was
not referred to in the originating application and on the view the tribunal had
formed on the merits of the claim. I have reached the conclusion that there is
insufficient substance in these two points to entitle this court to conclude that
the balancing exercise conducted by the tribunal in the exercise of their discretion
was vitiated by an error of legal principle or was plainly wrong. For very much
the same reasons as were given by the appeal tribunal in their judgment, I would
not interfere with the tribunal’s exercise of discretion on this point.
C.
The Manchester proceedings and appeal (2002/0121 and 2002/0122)
- These
appeals concern abuse of process in the shape of Mr Chaudhary bringing proceedings
in the employment tribunal in Manchester against parties who were already respondents
to his Southampton proceedings (Dr Platt, the Department of Health and the NHS
Executive HQ), allegedly raising matters which were the subject of the Southampton
proceedings. The Manchester proceedings included a complaint of discrimination
based on the decision of the STA and on Dr Platt’s letter of 15 December 1998,
both of which post-dated the commencement of the proceedings in the Southampton
employment tribunal on 2 December 1997.
- In
extended reasons sent to the parties on 21 July 2000 the chairman of the employment
tribunal (Mr CJ Chapman), sitting alone at Manchester, refused to strike out as
an abuse of process Mr Chaudhary’s claims against those respondents.
- He
held that the Southampton proceedings had only determined the time limit issue;
that there had been no final determination of the Southampton proceedings on the
merits; that it could not be decided, without hearing evidence, whether Dr Platt’s
letter of 15 December 1998, which was not a matter referred to in the Southampton
proceedings, constituted a reconsideration or a fresh determination of Mr Chaudhary’s
application; that Mr Chaudhary had a choice between applying to amend the Southampton
proceedings and starting fresh proceedings based on the letter of 15 December
1998; and that exercising his choice for the latter course was not an abuse of
process. There was no cause of action or issue estoppel. He dismissed the respondents’
application to strike out the proceedings which invoked the principle in Henderson
v. Henderson requiring the parties to litigation, in tribunals as well as
in ordinary courts, to bring forward their whole case at the same time. Unless
there are special circumstances, the parties are prevented from re-opening the
same subject of litigation in respect of a matter which might have been brought
forward in the earlier proceedings.
- In
a judgment delivered on 20 December 2001 the employment appeal tribunal (HHJ Peter
Clark presiding) dismissed the appeal. The appeal tribunal found certain errors
of law in the employment tribunal’s decision but, at the invitation of the parties
and to save further delay and costs, heard the strike out applications de novo
rather than remit the case to the employment tribunal for a re-hearing. They concluded
that, adopting the approach of the House of Lords in the recent case of Johnson
v. Gore-Wood [2001] 2 WLR 72, the Manchester proceedings were not an
abuse of process. The issuing of a fresh complaint based on Dr Platt’s letter
of 15 December 1998, rather than applying for permission to amend the existing
Southampton proceedings, was a permissible option open to Mr Chaudhary on 23 December
1998. If the time limit defence in the Southampton proceedings had failed, the
two sets of proceedings could have been combined for a full merits hearing, No
additional expense or inconvenience had been caused to the respondents, because
the time limit issue in the Southampton proceedings would have been separately
heard, with or without an amendment adding the Manchester complaint.
- The
NHS Executive HQ, the Department of Health and Dr Platt sought permission to appeal.
They focused on the decision of the appeal tribunal and sought an order remitting
the matter to the appeal tribunal or to the employment tribunal for a fresh determination.
Although Dr Platt was separately represented, his counsel adopted the arguments
advanced on behalf of the NHS Executive HQ and the Department of Health (which
are both part of the same organisation and accept vicarious liability for the
acts of Dr Platt) by Miss Monica Carss-Frisk QC and Miss Jane Collier.
- I
would refuse to grant permission, as the appeal has no real prospect of success.
The appeal tribunal rightly dismissed the appeal against the refusal of the employment
tribunal to strike out the Manchester complaint as an abuse of process.
- At
all levels the question of abuse of process has been argued on paper and orally
more elaborately than was ever warranted in the circumstances of the case. In
my judgment, the application to strike out for abuse of process was a piece of
overkill in a straightforward procedural situation, which could have been appropriately
resolved by routine and inexpensive case management procedures. The pursuit of
the unsuccessful application to a first tier of appeal was surprising and it failed.
The attempt to pursue it to a second tier of appeal is unjustifiable.
- Further,
in the light of the decision against Mr Chaudhary on the Southampton Appeal, the
application to strike out time barred claims for abuse of process no longer has
any practical importance, save on the question of costs. No useful purpose would
be served by granting permission to appeal. For these reasons it is unnecessary
to deal with the arguments on this appeal in the same detail as they were debated
below.
- The
essence of the argument on the application for permission is that the employment
tribunal made errors of law, as was recognised by the appeal tribunal, and that,
in hearing the matter de novo, the appeal tribunal fell into other errors
of law.
- The
position was that, at the time when Mr Chaudhary presented his application to
the Manchester tribunal (23 December 1998), it was open to him to apply to amend
the Southampton proceedings to raise allegations of fresh causes of action, which
post-dated the institution of those proceedings. It was submitted that it was
not a permissible course of action for Mr Chaudhary to present a fresh complaint,
when he was faced with a jurisdictional point in the Southampton proceedings which,
if successful, would dispose of the whole cause of action. The presentation of
the Manchester complaint was a second bite at the cherry. It was precisely the
type of conduct which the principle in Henderson v. Henderson (1843) 3
Hare 313, as considered by the House of Lords in Johnson v. Gore-Wood
[2001] 2 WLR 72 and by this court in Divine-Bortey v. Brent London BC [1998]
IRLR 525, is designed to prohibit, with its inevitable risk to the applicants
of duplication of costs, time and effort. All the matters raised in the Manchester
proceedings could have been resolved at the same time as the preliminary time
limit point in the Southampton proceedings.
- It
was submitted that, as well as falling into errors on detailed points of law,
the tribunal and the appeal tribunal had fatally failed to take into account the
public interest in the finality of litigation, the need to avoid a multiplicity
of litigation and the principle that a party should not be vexed twice in the
same matter. If they had taken those matters into account, they would have concluded
that Mr Chaudhary’s conduct in presenting the Manchester complaint was an abuse
of process: there was no good reason for his decision to present a second complaint,
instead of applying to amend the first complaint in the Southampton tribunal,
which he could have done, even though the letter of 15 December post-dated
the Southampton proceedings; the Manchester complaint was intimately connected
with the events, which were the subject of the Southampton complaint, rather than
with the other Manchester proceedings against the STA and others; the preliminary
issue as to whether Dr Platt made a new decision in his letter of 15 December
1998 could have been determined at the same time as the preliminary time point
in Southampton, where a similar point arose on Professor Temple’s letter of 20
November 1997 and was awaiting the decision of the tribunal; abuse of process
did not require any element of blame or dishonesty; and the issue of the Manchester
complaint posed the clearest possible risk of prejudice to the applicants in terms
of duplication of evidence, cost, waste of time and inconsistent findings and
decisions arising from a multiplicity of proceedings.
- As
for the relevant principles of law I agree with the appeal tribunal that the relevant
point of time at which to consider whether proceedings are an abuse of process
in this case is the date when they were instituted (23 December 1998); that the
principle in Henderson v. Henderson is not limited to cases in which there
has been a full hearing on the merits; and that it was open to the Southampton
tribunal, if an application to amend had been made, to permit amendment of the
complaint to raise allegation post-dating the original complaint.
- As
for the application of the principles, I conclude that, in all the circumstances
of this case, the chairman of the employment tribunal was entitled to conclude
that Mr Chaudhary’s conduct in presenting the Manchester complaint was not an
abuse of process. In reaching that conclusion I must not be taken as necessarily
agreeing with all the legal and factual reasons given by the employment tribunal
and by the appeal tribunal for reaching their respective decisions. The important
point is that, as pointed out by Lord Bingham in Johnson v. Gore-Wood at
p. 90A-F, it is not appropriate to adopt
"…too
dogmatic an approach to what should in my opinion be a broad, merits based judgment
which takes account of the public and private interests involved and also takes
account of the facts of the case, focusing attention on the crucial question whether,
in all the circumstances, a party is misusing or abusing the process of the court
by seeking to raise before it the issue which could have been raised before. As
one cannot comprehensively list all possible forms of abuse, so one cannot formulate
any hard and fast rule to determine whether, on given facts, abuse is to be found
or not."
- On
that approach I would regard the appellant’s submission that this is a case of
abuse of process because Mr Chaudhary could, but did not, apply to the Southampton
tribunal for permission to amend his existing proceedings by introducing into
them the matters complained of in the Manchester proceedings, as too dogmatic
an approach to the relevant question. It would be a disproportionate response
to treat the institution of the Manchester proceedings as an abuse of process.
The potential risks posed to the public interest and to the private interests
of the applicants could be readily overcome by sensible case management decisions,
which it was open to the applicants to request and to the chairman to make: for
example, an order staying the Manchester proceedings pending the determination
of the preliminary time limit point in the Southampton proceedings; and, depending
on the outcome of that preliminary issue, making an order for the consolidation
of the two sets of proceedings and giving directions for a full merits hearing.
D.
The Manchester proceedings (STA) and appeal
- This
appeal concerns the extent of the jurisdiction of the employment tribunal to entertain
complaints of acts of race discrimination under section 12 of the 1976 Act. Is
that jurisdiction excluded under s 54(2) of the 1976 Act in view of the statutory
jurisdiction of the appeal panel in respect of decisions of the STA?
- On
this question I would grant permission to appeal on the ground that a point of
some difficulty and general importance is involved. It is the most difficult question
raised in all of Mr Chaudhary’s tribunal proceedings. For the reasons given below,
I would, however, dismiss the appeal.
- Mr
Chaudhary’s complaint is of race discrimination in the refusal of the STA to enter
him on the Specialist Register. His case is that the criteria by which the STA
assessed his application and the application of the criteria involved unlawful
discrimination on the ground of race and victimisation.
- In
extended reasons sent to the parties on 28 September 2000 the chairman of the
employment tribunal (Mr CJ Chapman), sitting alone at Manchester, held that the
tribunal had no jurisdiction to hear the complaint of race discrimination against
the STA and other respondents. The decision was based on sections 12 and 54(2)
of the 1976 Act. The employment tribunal held that the appeal to the STA appeal
panel was an appeal under an "enactment" within section 54(2). The result
was to exclude the tribunal’s jurisdiction to entertain a complaint of race discrimination
under section 12. It was held that there was no ambiguity in s 54(2) so as to
require consideration of Article 6(1) of the European Convention on Human Rights
in the process of interpretation.
- In
a judgment delivered on 20 November 2001 the employment appeal tribunal (HHJ Peter
Clark presiding) dismissed Mr Chaudhary’s appeal, holding that the jurisdiction
of the employment tribunal was excluded by section 54(2). They held that the right
of appeal to the STA appeal panel derived from Article 13 of the 1995 Order, which
was made under s 2(2) of the European Communities Act 1972. The 1995 Order was
an "enactment" within s 54(2), which term, on the authorities, encompasses
subordinate, as well as primary, legislation.
- Mr
Chaudhary sought permission to appeal. On 5 July 2002 the application was adjourned
to the full hearing.
-
The jurisdiction point turns on the interpretation of section 54 of the 1976 Act
which provides-
(1)
A complaint by any person ("the complainant") that another person ("
the respondent")-
(a)
has committed an act of discrimination against the complainant which is unlawful
by virtue of Part II [Discrimination in the Employment Field]; or
(b)
is by virtue of section 32 or 33 to be treated as having committed such an act
of discrimination against the complainant,
may
be presented to an employment tribunal.
(2)
Subsection (1) does not apply to a complaint under section 12(1) of an act in
respect of which an appeal, or proceedings in the nature of an appeal, may be
brought under any enactment,…"
- Section
12 is in Part II of the 1976 Act and is concerned with "Qualifying bodies."
It provides-
"(1)
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-
(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 it from him or varying the terms on which he holds it.
(2)
In this section –
(a)
"authorisation or qualification " includes recognition, registration,
enrolment, approval and certification;
(b)
"confer" includes renew or extend."
- It
is common ground that the STA is a "qualifying body " within section
12.
- The
provisions of the 1995 Order, as amended, are also relevant. Article 12, as amended,
provides-
"
(1) A person is entitled to have his name included in the specialist register
if he applies to the Registrar of the GMC…and satisfies him-
……………..
(b)
that he falls within paragraph (2).
(2)
A person falls within this paragraph if-
………………….
(c)
he has satisfied the STA that-
(i)
he has been trained in the United Kingdom in [a medical speciality other than
general practice] and that training complied with the requirements relating to
training in that speciality current in the United Kingdom at the time he undertook
it, or
(ii)
he has qualifications awarded in the United Kingdom in such a speciality which,
together with any experience which he has in the speciality in question and any
further training which he has undertaken at the recommendation of the STA under
(2B), give him a level of expertise equivalent to the level of expertise he might
reasonably be expected to have attained if he had a [Certificate of Completion
of Specialist Training] in that speciality."
- There
is a right of appeal to the STA appeal panel against a refusal to register under
Article 12.
- On
24 January 1997 the STA promulgated Regulations Governing Appeals pursuant to
Article 13 of the 1995 Order (the STA appeals procedure.) Article 13 provides-
"
(1) The STA shall secure that-
(a)
a person to whom it refuses to award a CCST;
(b)
a person who fails to satisfy the STA that he is an eligible specialist in accordance
with Article 9(2) or (3); and
(c)
a person who fails to satisfy the STA of the matters referred to in Article 8(4)(b)
or 12(2)(c),
has
the right to appeal against its decision to a panel of independent persons (in
this article referred to as an "appeal panel") which shall be convened
by the STA as soon as practicable to reconsider the question and determine whether
or not the appellant should be awarded a CCST or should so satisfy the STA (as
the case may be)."
(2)
The STA shall determine and publish the procedure governing its selection of the
members of appeal panels and the conduct of appeals.
(3)
The STA shall secure that an appeal panel gives reasons for its determination."
- Under
the STA Appeals Regulations the appeal panel consists of a legally qualified chairman
and two Fellows of medical Royal Colleges and Faculties, other than the College
responsible for the speciality of the appellant. The members of the panel are
nominated by a legally qualified Director of Appeals, who is under a duty "to
strive to maintain the impartiality of the appeal system." The Fellows volunteer
for the duty. They are unpaid, though they are re-imbursed by the STA for their
travelling expenses. Oral hearings may take place, to which the rules of natural
justice apply. The parties may be represented. Evidence may be given. The function
of the appeal panel in hearing an appeal of the kind brought by Mr Chaudhary is
to reconsider the decision of the STA and determine whether he is an eligible
specialist. Reasons must be given for decisions and rulings.
- It
is common ground that the crucial question of the correct interpretation of section
54(2) must be resolved in accordance with ordinary principles of domestic law.
The alleged act of discrimination occurred before the Human Rights Act 1998 (the
1998 Act) came into force on 2 October 2000. Section 3(1) of the 1998 Act was
not in force at the date of the decision of the STA (28 September 1998) nor was
it in force at the date of the decision of the employment tribunal, although it
had come in to force before the decision of the STA appeal panel dismissing the
appeal. The fact that section 3(1) came into force before the hearing of the appeal
by the employment appeal tribunal and by this court does not make it applicable
to the relevant question, which is whether the employment tribunal erred in law
in their interpretation of section 54 in the decision sent to the parties on 28
September 2000. Section 3 does not operate retrospectively so as to apply to the
interpretation of section 54(2) at the time Mr Chaudhary’s cause of action arose
or when it was decided by the employment tribunal. As was made clear by the House
of Lords in R v. Lyons [2002] 3 WLR 1562 an appellate court, in judging
the correctness of a decision under appeal, refers to the law applicable at the
date of the trial. This case does not fall within the exceptional cases of retrospectivity
covered by s 22(4) of the 1998 Act.
- It
is also common ground that before the 1998 Act the principles of statutory interpretation
applicable with regard to the Convention were as stated by Diplock LJ in Salomon
v. Commissioners of Customs & Excise [1967] 2 QB 116 at 143
"….
there is a prima facie presumption that Parliament does not intend to act in breach
of international law, including therein specified Treaty obligations; and if one
of the meanings that can reasonably be attributed to the legislation is consonant
with the treaty obligations and another or others are not, the meaning which is
so consonant is to be preferred."
- In
R v.. Secretary of the Home Department ex parte Brind [1991] AC 696 at
747H Lord Bridge said
"…it
is already well settled that, in construing any provision in domestic legislation
which is ambiguous in the sense that it is capable of a meaning which either conforms
to or conflicts with the Convention, the courts will presume that Parliament intended
to legislate in conformity with the Convention, not in conflict with it. "
- Thus,
although the European Convention was an international treaty, which did not confer
rights on individuals in domestic law, there was a presumption in favour of interpreting
English law in a way which did not place the UK in breach of the obligations of
the Crown under the Convention. The key question is whether section 54(2) is ambiguous
in the sense that it is reasonably capable of more than one meaning. If it is
ambiguous, the court should prefer the interpretation which conforms to the requirements
of Article 6(1) of the Convention. Mr Hendy QC contends that the chairman of the
employment tribunal was wrong in holding that s 54(2) is unambiguous and he failed
to interpret it accordance with the pre-1998 principles already cited. He contended
that s 54(2) is ambiguous in two significant respects.
- First,
the expression "complaint of an act" in subsection (2) is reasonably
capable of referring to an act of racial discrimination, as referred to in subsection
(1) and in section 12, as distinct from an act of the STA in rejecting an application
for registration on the ground that it was not satisfied of the matters of qualifications,
experience and training stated in Article 12 (2) (c) of the 1995 Order, as amended.
He submitted that, under the appeal procedure, an appeal may only be brought to
the appeal panel on a question under Article 12. A complaint of race discrimination
under section 12 is not within the jurisdiction of the appeal panel. Section 54(2)
does not therefore apply.
- Secondly,
" enactment" is a flexible word and, as used in the context of section
54(2), it is reasonably capable of referring solely to primary legislation, as
distinct from extending to instruments and orders made under primary legislation.
- If,
Mr Hendy submitted, section 54 is ambiguous on either point, the court should
adopt a purposive interpretation, so as not to exclude the jurisdiction of the
employment tribunal. That interpretation would be more consistent with the Convention
and, in particular, with the procedural requirements of Article 6(1) of the Convention
that there should be a right of access to an impartial and independent tribunal
or court with jurisdiction to grant an effective remedy to a victim of race discrimination.
The remedies of compensation, declaration and recommendation would be within the
power of an employment tribunal , but were not within the power of the appeal
panel.
- With
the assistance of Mr Hendy QC and Mr Havers QC on this difficult question of interpretation
I have reached the conclusion that the employment tribunal and the employment
appeal tribunal correctly decided that section 54(2) is unambiguous. The employment
tribunal have no jurisdiction to hear Mr Chaudhary’s complaint of race discrimination.
- In
Khan v. General Medical Council [1994] IRLR 646 (a case of alleged indirect
race discrimination in the application of criteria for registration as a medical
practitioner by the GMC, where primary legislation provided for a right to apply
for a review by a Review Board of a refusal to register) at paragraph 30 Hoffmann
LJ identified the purpose of section 54(2):
"[Section
12 (1)] concerns qualifications for professions and trades. Parliament appears
to have thought that, although the industrial tribunal is often called a specialist
tribunal and has undoubted expertise in matters of sex and racial discrimination,
its advantages in providing an effective remedy were outweighed by the even greater
specialisation in a particular field or trade or professional qualification of
statutory tribunals such as the Review Board, since the Review Board undoubtedly
has a duty to give effect to the provisions of s12 ….This seems to me a perfectly
legitimate view for Parliament to have taken. Furthermore, s54(2) makes it clear
that decisions of the Review Board would themselves be open to judicial review
on the ground that it failed to have proper regard to the provisions of the Race
Relations Act. In my view, it cannot be said that Medical Act 1983 does not provide
the effective remedy required by European law"
- Neill
LJ said at paragraph 26
"
It seems to me quite clear that s54 provides that where there is an alternative
remedy provided by statute, that remedy excludes the remedy under s 54(1)."
- Waite
LJ agreed with both judgments.
- On
a purposive approach the "act " in section 54(2) of which complaint
is made under section 12 is, in this case, that of the STA in refusing Mr Chaudhary’s
application for registration: it is not the act of the appeal panel in rejecting
the appeal, against which there is no appeal. As Hoffmann LJ said in Khan (at
paragraph 35)
"
Section 54(2) distinguishes between an act under s 12(1), in respect of which
complaint is made, and an appeal in respect of that act. In my judgment, it follows
that for these purposes the appeal cannot itself be the act in respect of which
complaint is made."
- An
appeal to the appeal panel may be brought against the STA’s act of refusal of
registration, including cases in which the appellant makes allegations of direct
or indirect discrimination or victimisation in relation to the act complained
of. Mr Havers accepted that, on the authority of Khan and R v. Department
of Health ex p Ghandi [1991] ICR 805, the appeal panel have a duty to give
effect to the provisions of section 12 of the 1976 Act in deciding the question
whether an applicant satisfied the requirements of Article 12 of the 1995 Order,
as amended. I am unable to accept Mr Hendy’s submission that the appeal panel’s
jurisdiction in respect of race discrimination is limited to consideration of
the exercise of a discretion alleged to be flawed by racial discrimination, such
as was alleged in the case of the determination of an "administrative"
appeal to the Secretary of State in Ghandi: see p.813B-E. If, for example,
a question is raised as to whether the application of a particular requirement
was indirectly discriminatory on the ground of race or sex, it would be necessary
for that to be determined in order to decide whether to grant the application.
It would be unlawful for the STA or the appeal panel to apply a discriminatory
requirement. Mr Havers accepted that the appeal panel is a qualifying body under
s 12 of the 1976 Act and, as such, it must itself comply with the provisions of
the 1976 Act. Its failure to do so would render the decision making process unlawful
and amenable to judicial review by the High Court. In this case it is true that
the appeal panel refused to entertain Mr Chaudhary’s race complaints, but the
refusal was not based on lack of jurisdiction. The appeal panel relied on procedural
grounds: the complaint was raised late; it was unparticularised; and it consisted
of bare assertions unsupported by any evidence. The decision of the appeal panel
was unsuccessfully challenged on Mr Chaudhary’s application to Sullivan J for
permission for judicial review.
- In
my judgment,"enactment" in the context of section 54(2) is unambiguous.
On this point I agree with the decision of both the employment tribunal and of
the appeal tribunal. "Enactment" includes the subordinate legislation
under which the appeal is brought (i.e. the 1995 Order). It is not confined to
appeals brought under primary legislation. I cannot detect any sensible or rational
purpose in restricting the operation of the section to appeals brought under primary
legislation and in excluding appeals brought under subordinate legislation. The
wider construction is more consistent with the rationale of section 54(2) expounded
by Hoffmann LJ in Khan.
- It
is true that in a different context "enactment" has been held to refer
only to primary legislation. In Rathbone v. Bundock [1962] 2 QB 260 at
273 Ashworth J said in the context of section 232 (1) of the Road Traffic Act
1960
"
..in some contexts the word "enactment" may include within its meaning
not only a statute but also a statutory regulation but, as it seems to me , the
word does not have that meaning in the Act of 1960. On the contrary, the language
used in a number of instances strongly suggests that in this particular Act the
draftsman was deliberately distinguishing between an enactment and a statutory
regulation."
- On
the other hand, the decision of this court in Allsop v. North Tyneside MBC
90 LGR 462 at 490 is an example of a case in which "enactment" in
section 111 of the Local Government Act 1972 was held to cover regulations made
by statutory instrument.
- Although
there are provisions in the 1976 Act in which the draftsman has distinguished
between primary legislation and subordinate legislation (as, for example, in section
41) the context in section 54(2) indicates that the wider meaning was intended.
- Other
authorities on section 54(2) do not assist. The point did not arise for decision
in Khan, as the main point taken was whether an application to the Review
Board was "an appeal or in the nature of an appeal" within section 54(2).
The Review Board in that case was established by primary legislation (i.e. the
Medical Act 1983). The decision of the employment appeal tribunal in Zaida
v. FIMBRA [1995] ICR 876 is unhelpful. It was held that an appeal against
a decision refusing membership of FIMBRA, a financial services self-regulating
organisation, was not brought under an "enactment", such as the Financial
Services Act 1986 or subordinate legislation made under that Act, but under the
articles of association of Fimbra. The articles defined the constitution and jurisdiction
of the appellate body. The appeal body did not derive its power from either primary
or subordinate legislation. It was not a statutory appeal procedure at all, whereas
the Appeal Panel is a statutory appeal procedure established by the 1995 Order,
which was made under the 1972 Act.
- It
is unnecessary to reach conclusions on the detailed submissions that the exclusion
of the jurisdiction of the employment tribunal is incompatible with Article 6(1).
In summary, it was contended by Mr Hendy that (a) the appeal panel is not "established
by law" within the meaning of Article 6(1), as its basic jurisdiction and
the formal framework of its organisation were not laid down by primary legislation
(Zand v. Austria [1978] 15 DR 70 at paragraph 69); (b) it is not an independent
and impartial tribunal within Article 6, as interpreted in Langborger v. Sweden
[1990] 12 EHRR 425 at paragraph 32, as the chairman and members of the appeal
panel are nominated by the Director of Appeals (who is appointed by the STA),
the remuneration of the Director and the chairman is paid by the STA, the members
have no guaranteed term of office, there are insufficient procedural safeguards
capable of ensuring that the STA do not bring pressure to bear on the members
of the appeal panel and the framework of the appeals does not present an appearance
of independence to the fair minded observer; and (c) that s 54(2), as interpreted
by the employment tribunal and the employment appeal tribunal, purports to restrict
or exclude civil rights of access to an employment tribunal in a manner which
is impermissible under Convention law, unless the restriction pursues a legitimate
aim and there is a reasonable relationship of proportionality between the means
employed and the aim sought to be achieved. In this case the effect of excluding
access to an employment tribunal is that effective judicial remedies normally
available for complaints of discrimination (see ss 56 and 57 of the 1976 Act,
in particular the right to recover compensation) were unavailable to Mr Chaudhary.
The appeal panel had no power to award such remedies. The appeal panel had other
disadvantages when compared to the employment tribunal: the appellant was required
to pay a fee of £1,000 whereas no fee is payable for an originating application
in an employment tribunal, and no questionnaire procedure, like that under s 65
of the 1976 Act, was available to the appellant.
- Although
it is unnecessary to reach a decision on those points in this case, it should
be recorded that Mr Havers made an important and, in my judgment, correct concession.
He accepted that judicial review of a decision of an appeal panel would be available,
if it failed to have proper regard to the provisions of the 1976 Act when allegations
of race discrimination were made on an appeal: see Khan at paragraph 30.
He submitted that the availability of judicial review of the decision of the appeal
panel by a court, which is beyond question impartial and independent, was sufficient
in all the circumstances to secure compliance with the requirements of Article
6(1): see R (Alconbury Developments Ltd) v. Secretary of State for the
Environment [2001] 2 WLR 1389. Where a Convention right is in play a greater
degree of intensity of review may be appropriate: see R (Daly) v. Home Secretary
[2001] 2 WLR 1622 at 1636B-C. An application for registration essentially
involves a determination of status rather than a claim for compensation and an
error of the appeal panel on a discrimination point could be corrected on an application
for judicial review in a manner similar to the jurisdiction of the employment
appeal tribunal to correct errors of law in the decisions of employment tribunals.
Reference was also made in written submissions after the conclusion of the oral
hearing to the important recent decisions of the House of Lords in Runa Begum
v. Tower Hamlets LBC [2003] 2 WLR 388 and Matthews v. Ministry of Defence
[2003] 2 WLR 435 on the effect of Article 6(1), the availability of judicial
review and the distinction between a procedural bar and the extinction of a substantive
right.
- I
should also point out, however, that Mr Hendy did not accept that the availability
of judicial review of decisions of the appeal panel was a sufficient cure for
the defects in the appeal panel. He submitted that the judicial review process
only had a limited scope: it would not involve a re-hearing of the facts; it would
not determine whether the criteria applied by the STA were discriminatory; and
it could not, by simply striking down the findings of the appeal panel, remedy
the lack of independence of the appeal panel. Nor could compensation be awarded
to the appellant, who was also exposed to a much higher degree of risk in respect
of costs than an applicant in an employment tribunal
- Mr
Havers also contended that, in any event, the STA appeals procedure complied with
the requirements of Article 6(1): it was established by law, its authority being
expressly derived from Article 13(1) of the 1995 Order; the appeal panel is independent
and impartial, consisting of persons independent of the STA and of the appellant,
including a legally qualified chairman; the Director of Appeals, who has free-standing
duties, including the appointment of members of the panel, is independent and
legally qualified; the procedure of the appeal panel is judicial or quasi-judicial
in character, with its provisions for representation, public hearings governed
by the rules of natural justice, the attendance and cross examination of witnesses
and the requirement of reasoned decisions, being most, if not all, the procedural
safeguards to be found in the ordinary courts.
- Finally,
a point was taken on behalf of Mr Chaudhary that the exclusion of the right of
access to the employment tribunal is incompatible with Article 39 (formerly Article
48) of the EC Treaty, which provides for the free movement of workers within the
Community. EC Directive 93/16 made pursuant to Article 40 of the EC Treaty was
designed to facilitate the free movement of doctors and the mutual recognition
of their formal qualifications. The 1995 Order implemented the Directive. The
discrimination of which Mr Chaudhary complains affects his rights under Article
39, because he cannot move freely within the Community, unless he secures from
the STA recognition of his qualifications and experience. It was submitted that
the interpretation of s 54(2), which prevents him from presenting a complaint
of race discrimination to an employment tribunal, is incompatible with the principle
that the procedural rules applicable to actions to enforce rights conferred by
Community law should not be less favourable than those applicable to similar actions
of a domestic nature: see Preston & Ors v. Wolverhampton Healthcare NHS
Trust & Ors [2000] ICR 961.
- I
would reject the submission of incompatibility on the ground that there is no
discrimination between doctors of Member States on the ground of nationality.
The procedural rules governing appeals from the STA apply to all those doctors
who make applications to the STA. They are not less favourable to some appellants
than to others. The non-availability of the right to complain of race discrimination
to an employment tribunal applies to all doctors, regardless of their nationality,
who have applied to the STA, have appealed unsuccessfully to the appeal panel
and complain of discrimination on the ground of race.
IV. THE OUTCOMES:
A SUMMARY
- In
summary, I would dispose of the various applications and appeals as follows:
(1)
BMA appeal (2002/1587)
I
would make an order in the terms of the draft consent order agreed between the
parties and approved by the court on 11 February 2003.
(2)
Southampton proceedings application (2001/1894)
I
would refuse Mr Chaudhary’s application for permission to appeal on the ground
that there is no real prospect of success in the appeal against the decision of
the employment tribunal that the originating application was presented by Mr Chaudhary
out of time or in their refusal to exercise its discretion to extend the time.
I would grant permission to appeal on the continuing act point, but I would dismiss
the appeal, as there was no error of law on that point in the decision of the
employment tribunal.
(3)
Manchester proceedings applications (2002/0121 and 2002/0122)
I
would refuse the applications for permission to appeal by the Secretary of State
and by Dr Platt on the ground that there is no real prospect of success in appealing
against the ruling of the Manchester employment tribunal that the proceedings
instituted by Mr Chaudhary were not an abuse of process.
(4)
Manchester proceedings (STA) application (2001/2717)
I
would grant permission to appeal to Mr Chaudhary, but I would dismiss the appeal
on the ground that there is no error of law in the employment tribunal’s interpretation
of s 54(2) of the 1976 Act or in the ruling that the employment tribunal does
not have jurisdiction to entertain Mr Chaudhary’s originating application.
Lord
Justice Latham:
- I
agree.
Lord
Justice Pill:
- I
also agree.