England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE FC3 96/7639/B

COURT OF APPEAL (CIVIL DIVISION) EATRF 94/1513/B

Royal Courts of Justice

Strand

London WC2

Wednesday, 4th December 1996

B e f o r e :

LORD JUSTICE NOURSE

LORD JUSTICE ROCH

LORD JUSTICE BROOKE

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DR. ELENA ROVENSKA

Appellant/Respondent

-v-

THE GENERAL MEDICAL COUNCIL

Respondent/Appellant

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MR. T. STRAKER QC (instructed by Messrs. Field Fisher Waterhouse, London EC3) appeared on behalf of the Appellant General Medical Council.

MR. A. NICOL QC and MISS H. WILLIAMS (instructed by Plumstead Law Centre, London SE18) appeared on behalf of the Respondent Dr. Rovenska.

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J U D G M E N T

(As Approved by the Court)

Crown Copyright

Wednesday, 4th December 1996

LORD JUSTICE BROOKE: This is an appeal by the General Medical Council ("the GMC") against a decision of the Employment Appeal Tribunal on 16th June 1994, when it allowed an appeal from a decision of the Industrial Tribunal on 1st December 1992, which had held that Dr Elena Rovenska was out of time for complaining that the GMC had discriminated against her on racial grounds.

Dr Rovenska is now aged 48. She was born in Czechoslovakia and studied medicine at the University of Brno between 1966 and 1973, when she qualified as a doctor. She had nearly nine years' experience of the practice of medicine in Czechoslovakia before she came to this country in 1982. In particular, she spent over three years in the Department of Cardiology at Sliec and two and a half years in a Department of Clinical Haematology in Prague. She wrote three articles on her work which were published in learned journals in Czechoslovakia.

After she came to England in 1982 she sought political asylum, and in the following year she was granted permission to live here. In 1984 she obtained an honorary contract as a research registrar at St Thomas' Hospital, and this meant that she passed two of the threshold requirements for limited registration pursuant to section 22 of the Medical Act 1983: her qualification at the University of Brno was accepted for this purpose (s 22(b)) and she had been selected for employment in an approved hospital (s 22(a)). There has been no suggestion that she is not of good character (s 22(d)). The other two statutory requirements for limited registration are that the applicant has the necessary knowledge of English (s 22(c)) and that he has the professional knowledge and skill, and has acquired the experience, which is necessary for practice as a medical practitioner with limited registration and is appropriate in this case (s 22(e)).

The GMC has published three notes, LR1-3, which set out information about different aspects of the arrangements for applying for limited registration, of which the first two are relevant in the present case. The present version of LR1 states that the GMC are not prepared to regard any doctor as possessing the professional knowledge, skill and experience and proficiency in English necessary for limited registration unless he or she has passed or been exempted from a test conducted by the Professional and Linguistic Assessments Board ("the PLAB test"). This test assesses suitability to undertake safely hospital employment at senior house officer level. It comprises:

"(a) A Multiple Choice Question examination to test factual professional knowledge in each of the main branches of medicine

(b) A tape-recorded test of Comprehension of Spoken English

(c) A Clinical Problem Solving examination to assess ability to apply professional knowledge in a variety of clinical situations [of which details are given]

(d) A Written English examination to assess ability to understand written English and to write clearly and distinctly in English

(e) A Projected Material examination to assess clinical knowledge and management in each of the main branches of medicine

(f) An Oral examination to assess ability to converse in English and to apply professional knowledge to clinical problems."

All six parts of the test must be taken and passed on the same occasion, and "exemption from the test may be granted only in certain circumstances by the GMC".

Dr Rovenska has taken the PLAB test twice, in October 1984 and June 1985. On each occasion she had a "marginal fail" in language and a "severe fail" in medicine, and her final grading was "severe fail". She has no present intention of taking the test again because in her view the examination would be rigged against her. Instead, she has sought to obtain exemption from the test, and it is her experience in this regard which led her to make her complaint of racial discrimination.

The GMC's rules relating to eligibility for limited registration are contained in the first six paragraphs of LR2. Paragraph 1 sets the scene:

"1. (a) Only doctors whose overseas medical qualifications and experience are accepted by the [GMC] and who have passed or gained exemption from the PLAB test are eligible to apply for limited registration.

(b) Doctors who qualified at certain Universities in Australia, Hong Kong, Malaysia, New Zealand, Singapore, South Africa or the West Indies may, in addition, be eligible to apply for full or provisional registration. Nationals of member States of the European Community who hold recognised primary medical qualifications awarded in one of the member States may also be eligible to apply for full registration. ..."

The special provisions for doctors from what is now the European Union are required by section 3 of the Medical Act. It was common ground that if Dr Rovenska had had the requisite qualifications in an EU country (and these qualifications are set out in Schedule 2 of the Act) she would be entitled to full registration without having to take any tests at all.

It is paragraph 3 which contains the exemptions to which Dr Rovenska takes exception. Paragraph 3(c) exempts doctors from the PLAB test because they qualified:

"(i) at certain Universities in Australia, Canada, Hong Kong, New Zealand, Singapore, South Africa, the USA, or the West Indies,

or

(ii) in the Republic of Ireland after five years' undergraduate study in that country,

or

(iii) at the University of Malaya on or before 31st December 1987."

Paragraph 3(d) grants exemption to doctors if, in addition to their primary overseas medical qualifications, they also hold, or have passed the final examinations for, certain primary medical qualifications (such as MRCS, LRCP or LRCPS in England or Scotland) or a higher qualification granted in the United Kingdom, the Republic of Ireland or Australasia, which is registrable with the GMC (for example MRCP(UK) or FRCS Ireland), or have passed or been exempted from the primary examinations for the MRCPath or FRCR.

Dr Rovenska made a number of attempts to secure exemption from the PLAB test. In November 1982 she instructed solicitors to inquire of the GMC the circumstances in which they would consider waiving their requirement; in reply they were referred to the then current edition of LR2. In 1985, after she had failed the PLAB test twice, the consultant cardiologist for whom she was working at St Thomas' Hospital, Dr Jenkins, made an eloquent plea on her behalf. He said that, from his personal experience in the Cardiac Department over 18 months, Dr Rovenska was fluent in English and in communications with patients and over the telephone and that she was in his opinion amply qualified to be accepted as a registered medical practitioner. The GMC replied that the chairman of the relevant committee could find no grounds for granting her an exemption.

In 1989 she instructed her solicitors to write again. They said that she had been working in British hospitals now for five years, and wished to have a provisional or temporary registration to enable her to obtain experience as a pre-registration house officer. Her long-term ambition was to continue to work in the field of pathology in this country. The GMC replied that the arrangements for provisional or temporary registration no longer existed. Dr Rovenska would have to take the PLAB test since in 1985 no grounds for exempting her had been found to exist.

Towards the end of 1991 she tried for the fourth time. She said she had now practised medicine for 17 years. She had gained laboratory skills in microbiology and virology in hospitals in this country, and she had now been awarded a Master of Science degree in medical microbiology at the London School of Hygiene and Tropical Medicine. She said she was fluent in written and spoken English, and she asked the GMC to register her on the grounds of her abilities and merits. By a letter dated 2nd December 1991 she received the same reply as before. On this occasion she turned to the Greenwich Council for Racial Equality for assistance. The Director of the Council, Mr. Makhan Bajwa, wrote:

"I wish to draw your attention to the GMC rules especially 1(c)(iii) according to which Dr. Rovenska should be exempted from such a test. She has been trained at London School of Hygiene and Tropical Medicine for her MSc. in Medical Microbiology, she has passed her examination. I enclose a copy of reference from her tutor Dr. M.E. Devey, according to whom ´her English is excellent'.

I do sincerely hope that on the basis of above information you will be able to grant her exemption from PLAB and grant her full registration to which she is entitled.

I look forward to hearing from you."

The reference to Rule 1(c)(iii) appears to be to a predecessor of Rule 3(d)(iii) of LR2. On 10th January 1992 they received the same reply as before.

On 31st March 1992 the Industrial Tribunal received her originating application in which she complained of unlawful discrimination on the grounds of her race. The only issue on this appeal is whether her application was lodged in time. The Industrial Tribunal said it was not, and that it was not "just and equitable" to allow her to make her application out of time. The Employment Appeal Tribunal said the application was lodged in time and that, if this had been a live issue, one of the reasons relied on by the Industrial Tribunal for its ruling that it was not just and equitable to allow the application to proceed out of time was wrong in law. The GMC now appeals against this decision.

The framework of statutory law within which this appeal falls to be considered is to be found in the Medical Act 1983 ("the 1983 Act") and the Race Relations Act 1976 ("the 1976 Act"). Section 2 of the 1983 Act keeps in being the register of medical practitioners with limited registration, and section 3 allows full registration to nationals of member states of the European Communities who hold one or more primary European qualifications. Section 22(1) provides that:

"Subject to sections 23(5) and 24, where a person satisfies the Registrar -

(a) that he has been selected for employment in the United Kingdom or the Isle of Man as a medical practitioner in one or more hospitals or other institutions approved by the General Council for the purposes of section 22;

(b) that he holds, has held, or has passed the examination necessary for obtaining some acceptable overseas qualification or qualifications;

(c) that he has the necessary knowledge of English;

(d) that he is of good character; and

(e) that he has the knowledge and skill, and has acquired the experience, which is necessary for practice as a medical practitioner registered under this section and is appropriate in his case,

he shall, if the General Council think fit so to direct, be registered under [section 22] as a medical practitioner with limited registration."

There is a statutory definition of "the necessary knowledge of English" in section 55 of the Act. Limited registration is available for a maximum period of five years (s 22(3)), and the Act provides arrangements whereby a practitioner with limited registration may apply for full registration without having to pass any further tests or examinations (s 25), with a right to obtain a review by a review board if aggrieved by a decision to refuse full registration at this stage (s 29).

Complaints may be made against the GMC under the 1976 Act because, by section 12(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 ... 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."

Section 1 of the 1976 Act contains the statutory definition of discrimination in the context of this Act, and section 54(1) gives jurisdiction to an industrial tribunal to entertain a complaint that another person has committed an act of discrimination against the complainant which is unlawful by virtue, inter alia, of section 12.

The principal issues which arise on this appeal turn mainly round the proper application of sections 12 and 68 to the facts of Dr Rovenska's case, and it is to these issues that I now turn.

They arise out of a limitation point, which turns on the proper construction of section 68. This section provides, so far as is material:

"(1) An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of three months beginning when the act complained of was done.

...

(6) A ... tribunal may nevertheless consider any such complaint ... 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 -

...

(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."

The Industrial Tribunal considered that the relevant act was the refusal letter of 2nd December 1991 and that the complaint was therefore out of time. The Employment Appeal Tribunal took a different view. It was an important feature of its judgment that it considered that the substance of Dr Rovenska’s complaint was that she was being denied access to one of the exemptions available under LR2 by reason of an act of indirect discrimination. Her case was based on the contention that the proportion of Eastern European nationals and/or the proportion of nationals from overseas non-EEC countries (apart from the exempted countries) who could comply with the conditions or requirements for an exemption specified in paragraphs 3 and 4 of Note LR2 was considerably smaller than the proportion of nationals from the exempted countries who could comply with it. Accordingly, she has suffered a detriment in that she has not met the requirement or condition, has not been granted exemption, and has been unable to gain limited registration as a medical practitioner. The tribunal recognised that her case was also based on an allegation of direct discrimination.

Mr Straker has taken us back to Dr Rovenska’s original application and to the way her case was put in the Industrial Tribunal, and has submitted that it was not open to the Employment Appeal Tribunal to restate her case in this way. I, for my part, would reject this submission. The fact that she was not able to gain an exemption from the PLAB test was at the heart of her complaints, and the tribunal correctly directed itself in accordance with the guidance given by this court in Sourgin v Haringey Health Authority [1992] ICR 650 at pp 653 and 658 that it should look for the substance of the complaint and should not approach the wording of the originating application in a technical, narrow, or legalistic manner.

When he considered whether the complaint was of a one-off act or a continuing act of discrimination, Mummery J mentioned the three leading cases on this topic and said that it was sufficient to summarise the guidance gathered from them in the following terms:

"(1) An act does not extend over a period simply because the doing of the act has ´continuing consequences' over a period. For example, a decision not to appoint an applicant for a particular post or not to upgrade his post (as in Sougrin v Haringey Health Authority [1992] ICR 650) has continuing consequences (eg as to pay). But the act which produced those consequences took place at a fixed moment of time and did not, therefore, extend over a period of time.

(2) An act does extend over a period of time, however, if it takes the form of a rule, scheme, practice or policy in accordance with which decisions are taken from time to time: for example, an employer's pension scheme, as in Barclays Bank plc v Kapur [1991] ICR 208, or a scheme providing for mortgage subsidies for employees and restricting the benefit of them in such a way that some qualify for the benefits, while others are denied them. In those cases, as long as the scheme, rule, policy or practice is in operation, it may properly be said that there is an act extending over the period of its operation and a complaint may be brought during that period or, at the latest, before the end of the expiration of three months after the rule, scheme, practice or policy has ceased to operate."

After applying these principles to the facts of this case Mummery J concluded at p 16:

"A decision to refuse an exemption in the case of a person such as Dr Rovenska is pre-determined by the provisions in LR2 regarding exemption. As long as the GMC acts on the contents of the Note LR2 Dr Rovenska, with her current qualifications, is bound to be refused exemption. Her complaint is not therefore of a once and for all refusal of an exemption. It is about the maintenance and operation of a scheme for exemption which extends over a period, that period being the currency of the scheme or rules."

Mr Straker complains that, on this approach, there is no end to the act complained of by the applicant: it does not matter that there is no individual act of discrimination against somebody, despite the language of section 54(1)(a), and there is no protection given by the time limit, so that a body like the GMC faces an unknown and unquantifiable number of potential claims which cannot be excluded by virtue of any delay, even in circumstances when it would be neither just nor equitable to allow a claim to proceed.

It was an important part of his case that the Employment Appeal Tribunal failed to take into account the fact that the cases on which it relied were all decided in relation to section 4 of the 1976 Act or section 6 of the Sex Discrimination Act 1975 (which for all material purposes is in identical terms). In those cases the discriminatory act complained of is not a one-off act of refusal: it arises out of the way in which the employer affords his or her employees access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or out of the employer refusing or deliberately omitting to afford the employees access to them. In these circumstances the courts have held that if an employer adopts a policy which means that a black employee or a female employee is inevitably barred from access to valuable benefits, this is a continuing act of discrimination against employees who fall into these categories until the offending policy is abrogated.

Section 12 of the 1976 Act (which is identical for all material purposes to section 13 of the Sex Discrimination Act) is, however, couched in different language. Mr Straker submitted that in the case of Dr Rovenska section 12(1)(b) was the relevant provision. This refers to refusing or deliberately omitting to grant an application for limited registration, and this, he says, will be a one-off act. So far as section 12(1)(a) is concerned, he says that this sub-section is concerned with the terms on which limited registration might be granted and not with the conditions which an applicant might have to satisfy in order to obtain such registration. In this context he relied on a recent decision of the Employment Appeal Tribunal in Virik v General Medical Council (unreported, 29th January 1996), in which Tucker J held that the clear wording of section 12(1)(a) relates to terms imposed on an authorisation at the point when it is granted and does not relate to terms which are a precedent to it being granted.

Mr Straker also relies on what he describes as a contrast drawn by the legislation between acts of discrimination against a person and discriminatory practices, a phrase which means “the application of a requirement or condition which results in an act of discrimination which is unlawful by virtue of any provision of Part II or III taken with section 1(1)(b) or which would be likely to result in such an act of discrimination if the persons to whom it is applied included persons of any particular racial group as regards which there has been no occasion for applying it” (s 28(1)). A person is said to act in contravention of section 28 if, and so long as, he applies a discriminatory practice or he operates practices or other arrangements which in any circumstances would call for the application by him of a discriminatory practice (s 28(2)).

Section 28(3) provides that proceedings in respect of a contravention of this section shall be brought only by the Commission for Racial Equality (“CRE”). Mr Straker submits that in these circumstances a clear parliamentary intention is apparent on the face of the statute. In connection with continuing practices which may or may not have resulted in individual acts of discrimination the CRE and the CRE alone can take proceedings against the person operating the discriminatory practice. On the other hand, for an individual to be able to take proceedings there has to be an act against him or her which may represent the operation of the practices of the body in question in an individual case but which is nonetheless an act capable of having, as regards the individual complainant, a beginning and an end so as to enable it to fall within the relevant provisions of the 1976 Act. He was willing to accept that an individual might apply more than once for a benefit such as limited registration, but if a discriminatory rule existed which made all such applications inevitably doomed, time would start to run from each individual refusal: an individual could not bring a claim which related to an allegedly discriminatory practice in a manner which was entirely divorced from an adverse decision in his or her particular case.

Mr Straker submits that, in treating the existence of a scheme within the GMC as constituting an act of discrimination against an individual, the Employment Appeal Tribunal has confused what at worst might be categorised as a discriminatory practice with an act of discrimination against an individual. He therefore argues that the Employment Appeal Tribunal fell into error when it considered that in the present case there was no time limit to be applied. He went on to submit that time started to run on 2nd December 1991: the subsequent letter from the Greenwich Race Equality Council should be treated as being akin to a solicitor's letter complaining about a refusal, and not as if it was a new application which resulted in a new refusal, leading to time starting to run afresh.

Mr Straker had one further argument, based on the language of section 53 of the Act, to the effect that the Act was concerned to ensure that proceedings under it should be reasonably contained, but in my judgment this argument adds nothing. Either this is a claim which is legitimately brought, within time, under the Act, or it is not.

Mr Nicol started his submissions on this point by relying on a passage in the judgment of Bristow J in Amies v Inner London Education Authority [1977] ICR 308 at p 311, which was approved by the House of Lords in Kapur, in which it was shown that the continuing discrimination which results from a discriminatory rule would only come to an end when the rule was abrogated. Bristow J said, after citing section 6(1) of the Sex Discrimination Act:

"So, if the employers operated a rule that the position of head of department was open to men only, for as long as the rule was in operation there would be a continuing discrimination and anyone considering herself to have been discriminated against because of the rule would have three months from the time when the rule was abrogated within which to bring the complaint."

Mr Nicol went on to submit that Mr Straker’s contention that an individual need not make an application to the GMC before he or she seeks a remedy is not correct. An individual may only bring a claim for discrimination if he or she can come within section 1 of the Act. A complaint of either direct or indirect discrimination under that section could involve a complaint about a scheme of rules (as in Dr. Rovenska's case). Direct discrimination, however, would only arise if the complainant had been treated less favourably than a person of another racial group. Unless the rules had been specifically applied to the complainant by the respondent, no such treatment could be made out. In order to establish indirect discrimination it is necessary to show both that the requirement or condition (i.e. the rule) was applied to the complainant and that he or she suffered a detriment as a result. Accordingly, the scenario which Mr Straker put forward of people bringing cases to tribunals in respect of rules or schemes that had never been directed at them personally will simply never arise: an individual has no complaint of discrimination unless or until the scheme of rules is actually applied to him or her and he or she is treated adversely as a result.

While Mr Nicol accepted that section 12 of the Act is couched in different terms to section 4, he said that this case fell within the language of section 12(1)(a) and the result was the same. He argued that to this extent Virik was wrongly decided, although the result of that case might have been the same quite independently of the tribunal’s ruling on the meaning of section 12(1)(a). He encouraged us to compare the language of section 12 with the language of other sections in Part II of the Act where the draftsman had been astute to identify all the ways in which the insidious evil of discrimination might occur. Section 12(1)(c), by definition, was referring to the terms on which a complainant held an authorisation or qualification (because otherwise there would be nothing to vary), but this did not mean that the meaning of the word “terms” in section 12(1)(a) should be similarly confined. If an authorising body charged a fee of £10 to white applicants and £100 to black applicants, the imposition of these different charges would represent discrimination in the terms on which it was prepared to confer its authorisation. There would be the same result if it exempted white applicants from a qualifying test which black applicants were required to take.

On this approach, if the terms on which the GMC was prepared to confer limited registration were inherently discriminatory, this was, he submitted, just as much a continuing act of discrimination as the maintenance of a discriminatory regime of the type the courts had had to consider in cases like Kapur. He went on to argue, less convincingly, that the same result might be arrived at from a proper construction of section 12(1)(b).

Finally, Mr Nicol submitted that the arguments based on section 28 were not soundly founded for three reasons. The first is that the distinction between the two statutory concepts of an "act of discrimination" and "discriminatory practice" is not between a single act or omission on the one hand and a continuing state of affairs on the other. This would be contrary to the decisions in such cases as Amies v. ILEA [1977] ICR 308, Calder v James Finlay Corporation [1989] ICR 157, Sougrin and Kapur, which all contemplate the possibility of an individual having a remedy for continuing discrimination.

His second reason is that, because the term "discriminatory practice" includes "the application of a requirement or condition which results in an act of discrimination which is unlawful by virtue of any provision of Part II taken with section 1(1)(b)", all acts of indirect discrimination which are made unlawful by Part II (and thereby give the individual victims a right to individual remedies) are also discriminatory practices. In these cases individual victims of the discriminatory act or practice can take proceedings under section 54 (if the discrimination was in the employment field) or the CRE can take action in relation to the contravention of section 28 under sections 58-60 of the Act.

His third reason is that the term "discriminatory practice" is defined in such a way that it does not necessarily require a victim. Thus the definition in section 28(1) also includes "the application of a requirement or condition... which would be likely to result in such an act of discrimination if the persons to whom it is applied included persons of any particular racial group as regards which there has been no occasion for applying it.” Section 28(2)(b) provides for other circumstances in which there may be unlawful discriminatory practices without victims. In these situations he accepts that only the CRE can take action.

In my judgment it is not necessary to resolve the question of the proper interpretation of section 12(1)(a) of the Act in the present case. If the regime which the GMC had selected for its exemptions policy was inherently discriminatory, as Dr Rovenska maintained, then on every occasion that it refused to allow her limited registration without first taking the PLAB test it would be committing an act of unlawful discrimination contrary to section 12(1)(b) of the Act. I do not regard the letter from the Greenwich Racial Equality Council as being akin to a solicitor’s letter in these circumstances. It was inviting the GMC to grant Dr Rovenska an exemption, and there were three new features of this application, compared with the letter Dr Rovenska had written in December. It advanced a new (bad) argument based on her acquisition of the new Masters’ degree; it forwarded a new up-to-date reference; and it expressly asked for an exemption. The GMC refused this application, and Dr Rovenska’s application was made within three months of that refusal. For these reasons, which are not the same as those given by the Employment Appeal Tribunal, I would dismiss this appeal.

In those circumstances it is not necessary to go on to consider the parties’ contentions on the second part of the case, which related to the question whether it would have been just and equitable to consider Dr Rovenska’s complaint out of time despite the Industrial Tribunal’s view that it was doomed to failure from the outset or that the GMC had an impregnable defence available to it under section 41 of the Act. In the event, the parties appeared to agree about the effect of section 41, and the question whether it provided a knock-out defence depended on whether the Employment Appeal Tribunal was entitled to recast the substance of Dr Rovenska’s case in the way it did. Since in my judgment it was, it was common ground that section 41 could not avail the GMC since their exemptions policies were evolved as a matter of discretion and not as a matter of necessity born out of the statute.

I would therefore dismiss the appeal.

LORD JUSTICE ROCH: I agree.

LORD JUSTICE NOURSE: I also agree.

Order: appeal dismissed with costs; legal aid taxation of Dr. Rovenska's costs.