England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Stanley Burnton)
(EMPLOYMENT APPEAL TRIBUNAL)

		Royal Courts of Justice Strand London WC2 Monday, 19th November 2001

1. LORD JUSTICE TUCKEY: I shall deal first with the second of the two applications listed before me today. The applicant, Dr. Uruakpa, who I have allowed to be represented by her husband who is also a doctor, applies for permission to appeal from a decision of the Employment Appeal Tribunal given on 18th October 2001, in which it dismissed her appeal from the decision of an Employment Tribunal striking out her claim of racial discrimination against the respondents to those proceedings, who are the Royal College of Veterinary Surgeons.
2. The applicant is a United Kingdom national from Nigeria. She has a primary veterinary qualification from the University of Ahrnadu Bello in Nigeria and a post graduate degree from the University of Queensland in Australia. From at least 1994 until 1997 she was undoubtedly working as a principal veterinary officer for the Ministry of Agriculture and Rural Resources in the State of Abia in Nigeria. She came to this country in 1997 with a view to obtaining work here as a vet. For reasons which will become apparent those efforts were unsuccessful and so in October 2000 she enrolled at the University of Birmingham where she is currently on a computer study course which is due to last until the end of next year.
3. In order to work as a vet in England she had to be registered as a member of the College. Section 6(1) of the Veterinary Surgeons Act 1996 says that:

"A person who shows to the satisfaction of the registrar (that is the registrar of the College) -

(a) that he is of good character,

(b) that he holds a commonwealth or foreign qualification in veterinary surgery, and

(c) that he has satisfied the Council that he has the requisite knowledge and skill to fit him for practising veterinary surgery in the United Kingdom,

shall be entitled to be registered in the register and on being so registered shall become a member of the College."

4. So this section makes it clear that entitlement to registration requires not only an overseas qualification but also that the applicant has satisfied the Council that he has the requisite knowledge. Subsection (2) says how that may be achieved:

"Without prejudice to any other steps which the Council may take for the purpose of satisfying themselves that a person has the said knowledge and skill, the Council shall for that purpose, except in a case falling within the next following subsection, require him to sit for examinations held for the purposes of this section by or under arrangements made by the College.

(3) If a Commonwealth or foreign qualification held by a person is of a kind accepted for the time being by the Council as constituting, in itself, satisfactory proof of that person's possessing the requisite knowledge and skill to fit him for practising veterinary surgery in the United Kingdom, that person shall be taken to have satisfied the Council that he has the said knowledge and skill."

5. The applicant does not have a subsection (3) qualification because the College do not recognize degrees from the University of Nigeria where she obtained her primary qualification, and her Masters or post graduate degree does not count for this purpose.
6. The appellant's stance has been that she is entitled to be registered by the College without having to sit the examination. This has resulted in much litigation. In earlier proceedings for judicial review she claimed that she was entitled to exemption from having to sit any exams under the provisions of The Veterinary Surgeon (Examination of Commonwealth and Foreign Candidates) Regulations 1967. These proceedings came to an end when the applicant was refused permission to appeal to this court. There have been other judicial proceedings as well to which it is not necessary to refer in this judgment.
7. The application to the Employment Tribunal or Industrial Tribunal as it then was alleged that by refusing to register the applicant the College were guilty of racial discrimination. The Employment Tribunal struck out that claim on the basis that it was bound to fail because the College was acting under the terms of section 6 of the 1966 Act, and so it had the defence to claims of racial discrimination afforded by section 41 of the Race Relations Act 1976. The Employment Appeal Tribunal upheld this decision.
8. Dr. Uruakpa argues that this decision was wrong in law because the Council, as one of the bodies of the College, had themselves a discretion as to which qualifications they would recognize for the purpose of exemption under section 6(3) and which they would not so they could not rely on the statutory defence because section 6 did not prevent them from recognizing the applicant's qualifications.
9. The Employment Appeal Tribunal dealt with this point by saying:

"It seems to us on a simple reading of section 6, whilst there may be a broad discretion which the Council have in their role of determining which foreign universities are admissible, there is no discretion within that section in the individual case to treat a particular person as having the appropriate qualifications."

10. Having looked at the statutory provisions I think that this conclusion was correct. The prospects of persuading this court otherwise are not sufficient to justify giving permission on that point.
11. The appellant's other grounds of appeal to the Employment Appeal Tribunal with which I must deal were that the Employment Tribunal had applied the wrong test in deciding whether to strike out the claim and that there was a breach of article 6 because the applicant had to deal with the case without legal representation, whereas the College were represented by an experienced solicitor.
12. Dr Uruakpa also makes a number of other points by reference to an affidavit in which a variety of criticisms are made of the way in which the proceedings in the Employment Tribunal were conducted. It is said that the chairman refused to accept evidence. He refused to make an order for further particulars. He was biased. He had been intimidated by the respondents' solicitor. He exhibited erratic behaviour and the respondents had acted in contempt of the Tribunal by misleading them. But these were not matters upon which the Employment Appeal Tribunal gave leave to appeal so they cannot properly form the basis of any appeal to this court, which is an appeal from the decision of the Employment Appeal Tribunal on a point of law.
13. The point about the wrong test is that the Chairman struck out this claim on the basis that it was bound to fail because it was frivolous. I can understand the applicant's concern that this was the label which the Chairman chose to put on the claim but as I have decided that he was right to conclude that the claim was bound to fail because the College did have the statutory defence whether one calls the claim frivolous or an abuse of process is not the point. The point is that the claim was bound to fail, and however one might express the threshold test for striking it out, it must be the case that the Tribunal in this situation can strike out a claim which it has decided is bound to fail. So on this point also I do not think that there is anything for this court to consider.
14. As to the article 6 point, confined as it was by the Employment Appeal Tribunal to the equality of arms argument, the Employment Appeal Tribunal pointed out that the process before employment tribunals requires a degree of informality:

"It is geared by the formulation of its rules and process of procedure to facilitate individuals without representation coming before it and they, in that capacity, are encouraged. The fact that another party may be permitted to have representation does not, it seems to us, diminish the entitlement and ability of an individual to have a fair hearing, to put their case fairly without its being unduly prejudiced in any way.

Furthermore, it is incumbent upon a chairman to assist a party that is unrepresented and that, in itself, provides sufficient balance it seems to us to any inbalance which there may be as a result of differing forms of representation.

Accordingly, we are satisfied that there was a fair hearing in this case and that the appellant had a full and fair opportunity of putting her case in a way which was comprehensive and took every point that could reasonably have been taken."

15. I agree with this reasoning. It seems to me that there is nothing in this point which the applicant can take on appeal.
16. For these reasons the applicant has no real prospect of successfully appealing the Employment Appeal Tribunal's decision. The second application must therefore be dismissed.
17. The first application is for permission to appeal from the decision of Stanley Burton J who, on 19th June 2001, refused the applicant's application for permission to challenge by judicial review a decision of the Ministry of Agriculture Food and Fisheries ("MAFF"), in which, by letter of 12th April 2001, they declined to offer her a job as a temporary vet to help out with the foot and mouth epidemic.
18. The College do have a discretion to register an applicant for membership temporarily under section 7 of the 1966 Act if he or she has been selected for employment in a particular temporary job in this country. Employment by MAFF to deal with foot and mouth would have qualified the applicant for temporary registration, but MAFF's policy was only to offer such employment to vets with overseas qualifications which fell within the section 6(3) exemption and (possibly) or (it is not clear) to vets who were currently employed by the Government Veterinary Service in their own country. Their decision not to offer employment to the applicant was based on the fact that she did not fulfil either of these conditions.
19. The judicial review proceedings challenging MAFF's decision made serious allegations of conspiracy and discrimination against MAFF and the College. They also involved the British Council against whom the applicant had no complaint but it appears her husband did. Since he was not a party to the proceedings that claim was bound to fail.
20. The judge rejected the allegations of conspiracy and discrimination against MAFF and the College whose policies, he concluded, were lawful and reasonable. These allegations are not pursued in the grounds of appeal.
21. The single point raised by the applicant is that she says that her employment as a vet by the State of Abia in Nigeria has continued to this day. In the skeleton argument she says that she has been employed by them since 1985 and that she is in this country on study leave as part of her employment, paid for by her employers.
22. This point does not appear to have been taken, or taken strongly, before the judge since he simply states that, although she had worked in Nigeria for the government, she was at the relevant time unemployed. If she had said she was employed I would have expected the judge to refer to and deal with this in his judgment.
23. Be that as it may, this is the point the applicant now raises. There is no support for the assertion that she makes in any of the documents produced for either of the applications. When asked about this today, I have been handed a letter which is dated 4th September 2000 from the Government of Abia in which Mrs Nwejike, Head of Service, says:

"I am directed to refer to your letter dated 28th August, 2000 on the above subject matter and our letter ... of 30th December 1997 in which you were granted approval for a three year study leave without pay, and to convey approval for the study leave without pay to be extended by two years ... to enable you to do a Masters degree course in computer science.

2. Note that this is the last time government can grant you extension of study leave without pay. You are therefore requested to return to your duty post at the expiration of your studies, failing which your appointment will be determined."

24. That does lend some credence to some form of continuing employment, although it is clear from this letter that the applicant has not actually worked as a vet in Nigeria since 1997.
25. But we are concerned here with a judicial review of the legality of MAFF's decision not to offer employment to the applicant. For that purpose the applicant completed and signed an application for appointment as a temporary veterinary inspector in which, when asked to give the name and address of her present employer, she left the box blank. When asked for details of her employment over the last three years, she referred to employment as a principal veterinary officer by the State of Abia from January 1994 to October 2000. So in this form she is clearly not saying that she is currently employed as a vet anywhere. MAFF were entitled to take the applicant's word for it. That is what they did when they said they could not offer her employment because she was not currently employed as a vet in Nigeria. She has no possible grounds for challenging their decision which was based on what she told them. Any appeal by the applicant is therefore bound to fail. For these reasons permission to appeal in the first case must also be refused.
Order: Applications refused.