England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Keith
EAT/0594/03/LA

		Royal Courts of Justice Strand, London, WC2A 2LL
		9 July 2004

Lord Justice Maurice Kay :

1. Dr. Saher Sadek is a member of the Medical Protection Society (MPS). He was employed by Birmingham Heartlands and Solihull NHS Trust. He fell into dispute with the Trust and became the subject of disciplinary proceedings. The MPS provided him with advice and representation in relation to the disciplinary proceedings. Both at first instance and on appeal the disciplinary proceedings were resolved adversely to Doctor Sadek. He then sought advice from the MPS about possible Employment Tribunal proceedings against the Trust. The MPS provided such advice and funded a consultation with leading counsel. Eventually the MPS decided to stop advising and assisting Dr. Sadek in relation to his proposed claim against the Trust and declined to fund further independent legal advice and assistance. Dr. Sadek then commenced proceedings against the MPS in the Employment Tribunal. He claimed to be the subject of race discrimination and victimisation arising out of the way in which the MPS had advised and assisted him. On 19 December 2002 the Employment Tribunal directed a preliminary hearing of certain issues relating to its jurisdiction. One of the preliminary issues was formulated in this way:

"Whether the Tribunal has jurisdiction to hear a complaint under section 11(1)(3) Race Relations Act 1976 or otherwise……"

Section 11 falls within Part II of the 1976 Act. Part II is headed "Discrimination in the Employment Field". Sections 4 to 9 come under the sub-heading "Discrimination by Employers" and sections 10 to 15 fall under the sub-heading "Discrimination by Other Bodies". Section 11(the marginal note to which refers to "Trade Unions etc") provides as follows:

"(1) This section applies to an organisation of workers, an organisation of employers or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists.

(2) It is unlawful for an organisation to which this section applies, in the case of a person who is not a member of the organisation, to discriminate against him –

(a) in the terms on which it is prepared to admit him to membership; or

(b) by refusing, or deliberately omitting to accept, his application for membership

(3) It is unlawful for an organisation to which this section applies, in the case of a person who is a member of the organisation, to discriminate against him -

(a) in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(b) by depriving him of membership, or varying the terms on which he is member; or

(c) by subjecting him to any other detriment."

By an amendment effective from 19 July 2003, section 11(4) now provides that harassment of a member or proposed member is unlawful.

2. This appeal is concerned solely with whether the MPS is an organisation falling into any of the three categories set out in section 11(1). The Employment Tribunal decided that the MPS is both "an organisation of workers" and "any other organisation whose members carry on a particular profession…for the purposes of which the organisation exists". I shall refer to the former type of organisation as "the first category" and the latter form as "the third category".
3. The MPS appealed to the Employment Appeal Tribunal but its appeal was dismissed. The EAT expressed no view on whether the MPS falls into the first category but was satisfied that it falls within the third category.
4. Before addressing the legal issues which arise on this appeal it is appropriate to say a little more about the factual background. The MPS is a company limited by guarantee not having a share capital. It was founded in 1892. Dr. Stephanie Brown and Dr. John Hickey are employees of the MPS.
5. The 2001 edition of the Member's Handbook published by the MPS refers to the MPS as "the largest mutual medical protection organisation in the world". The Memorandum Of Association of the MPS sets outs its objects in terms which include the following:

"3(A) To protect support and safeguard the character and interests of medical or dental practitioners who in the exercise of some qualification or entitlement…are or have been practising their profession and of natural persons who are teaching or studying medicine or dentistry in any of their branches and of persons….or who are engaged in any science or art allied or ancillary to dentistry or calculated or intended to be of use in connection therewith;

3(B) To advise and assist members…..with regard to any matter effecting in any way whether directly or indirectly their professional character or interests;

3(C) To advise and assist and provide services for, and to procure the provision of advise and assistance and service for members….(whether for reward or not) with regard to any matter effecting in any way whether directly or indirectly their business interests or affairs;

3(E) To grant indemnities, (complete or partial…..) to persons (including without limitation any body corporate) and (in the case of any natural person) to their personal representatives…as the [MPS] may in accordance with its regulation determine…."

Against that constitutional background and with the benefit of evidence from Dr. Hickey the Employment Tribunal described the services provided by the MPS as follows:

"The main purpose of the Society is to provide advice and representation to individual members who have professional problems with which he, or she, requires assistance. The principal assistance which the Society provides is advice in connection with a difficulty arising out of professional practice and a right to apply for an indemnity in respect of civil claims for damages made against the member. Among its subsidiary purposes, the Society makes representations on changes to the regulatory regime which affects it members, if the Society is of the opinion that it would in the interests of members or future members , and the more efficient process of regulation could be expected to lead to a more economical use of members' subscriptions. If the Society foresees legislation which would have an adverse effect on members' interests so far as the indemnity, and the cost of providing the indemnity, is concerned, then it may consider making representations with regard to the prospective legislation to protect the funds of the Society for the benefit of members and future members."

6. The MPS has more that 200,000 members in over forty countries. Membership is open to natural person who are medical practitioners, dental practitioners, students of medicine or dentistry, physiotherapists, pharmacists, operating departments assistants, dieticians, practice nurses, the managers of general medical practices, dental technicians, dental hygienists and the like. In addition there are some corporate members. Within the United Kingdom there are two other medical defence organisations similar to the MPS, namely the Medical Defence Union and the Medical and Dental Defence Union of Scotland. The decision of the Employment Tribunal records that a proprietary insurer was involved in the market for some time but has now withdrawn from it. The British Medical Association is a professional association of medical practitioners. It is an independent trade union which represents the interests of the medical profession in contacts with government, the media and others. The British Dental Association performs similar functions for the dental profession. The case for the MPS is that whereas the British Medical Association and the British Dental Association fall comfortably within section 11, the MPS is beyond its catchment.
7. On behalf of the MPS Mr. Pannick QC submits that the MPS does not fall within either the first category or the third category of section 11(1). It is now common ground that it does not fall within the second category, namely "an organisation of employers". The Employment Tribunal was asked to consider but rejected the second category and, understandably, there has been no cross appeal in relation to that. Although Mr. Pannick's submissions proceded directly to deal with the first category and the third category as separate headings, there is a logically prior point which requires to be addressed.
8. As I have related, the Employment Tribunal was satisfied as to both the first category and the third category, whereas the Employment Appeal Tribunal, being satisfied as to the third category, found it unnecessary to reach a conclusion about the first category. This raises an important issue about the relationship between the first category and the third category. The third category comprises "any other organisation….". In my judgment it follows from the words I have emphasised that to fall within the third category an organisation cannot be within the first or second category. To this extent the approaches of both the Employment Tribunal and the Employment Appeal Tribunal were erroneous. The former erred by concluding that the MPS fell within both categories, whereas the latter erred by finding that it falls within the third category without having excluded it from the first category. With this in mind it is necessary to begin by considering the first category.

The first category

9. Before this court Mr. Pannick has abandoned some of the submissions that were made (by different counsel) to the Employment Tribunal and the Employment Appeal Tribunal to support the contention that the MPS is not an "organisation of workers". In particular, and wisely, he has abandoned the submission that the existence of a number of corporate members takes the MPS out of the catchment of an organisation "of workers". The submission which he seeks to advance is attractively simple. It is that an organisation can only fall within the first category if its members or at least the majority of its members are "workers" but most of the members of the MPS are not properly described as "workers" because they practise professions.
10. Perhaps surprisingly, there is no definition of "worker" in the Race Relations Act. "Employment" – the concern of Part II of the Act – is defined in section 78. The definition extends beyond contracts of service and apprenticeship to "a contract personally to execute any work or labour". The submission on behalf of the MPS is that those who practice professions are a breed apart and that this is born out by their inclusion in the third category. It is further suggested that this is supported by the definition of "worker" in other legislation. For example, by section 296(1) of the Trade Union and Labour Relations (Consolidatation) Act 1992, "worker" means, among other things, an individual who works under a contract whereby he undertakes to do or perform personally any work or services for another party to the contract "who is not a professional client of his". Similarly, by section 230(3) of the Employment Rights Act 1896 the definition extends to a person who undertakes to do or perform personally any work or services for another party "whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual".
11. In my judgment, these submissions on behalf of the MPS are unsustainable. They invest the concept of profession with an aura and exclusivity which, notwithstanding its historical validity, is inconsistent with the language of the Race Relations Act. "Profession" is defined in section 78(1) as including "any vocation or occupation". In such circumstances, it simply cannot be said that one cannot be a member of a profession and a worker.
12. Although there is no specific evidence about their arrangements, it is well known that medical and dental practitioners work under a variety of contractual arrangements in the National Health Service and the private sector. In the former, they are engaged under contracts of employment. In the latter, they are usually independent contractors. In both cases they are workers carrying out employment within the meaning of section 78(1). I consider that this is confirmed rather than refuted by the references to the Trade Union and Labour Relations (Consolidation) Act and the Employment Rights Act. The Race Relations Act contains no equivalent provision excluding the professional/client relationship from the catchment in the way that those Acts do. Moreover, it is not simply a case of the absence of an exclusion. The width of the definition of "profession" in section 78(1) is inconsistent with the distinction between "workers" and "professionals" which Mr. Pannick seeks to establish.
13. In this context it is pertinent to observe that the British Medical Association and the British Dental Association are registered as independent trade unions. As such they have been accepted by the Certification Officer as organisations consisting "wholly or mainly of workers….and whose principle purposes include the regulations of relations between workers…and employers…" : Trade Union and Labour Relations (Consolidation) Act 1992, section 1(a). I refer to this not to suggest that the MPS is bound by the certification of other organisations but to illustrate the modern reality referable to practitioners of professions.
14. It follows from what I have said that I have come to the same conclusion as did the Employment Tribunal about the first category, namely that the MPS is an "organisation of workers". The Employment Tribunal expressed itself as follows:

"Today those engaged in many occupations are described as professionals and the word 'profession' no longer has a precise meaning. To exclude professionals from the first limb of section 11(1) of the Race Relations Act would place an unexpected and serious restriction on it. It would also be extremely difficult to decide who fell within or without that limb of the definition."

I respectfully agree. In view of that conclusion, and having regard to what I have already said about the relationship between the first and the third category, it is not strictly necessary to proceed to a consideration of the third category. However, in deference to the submissions we have heard and because this is the first occasion on which the matter has been considered in the Court of Appeal, it is appropriate to deal with the third category in this judgment.

The third category

15. Mr. Pannick makes two submissions, either of which would, if correct, take the MPS outside the third category, assuming for this purpose that it is not within the first category. The first submission is that the MPS is not an organisation "whose members carry on a particular profession". This is because the membership extends beyond medical practitioners to dental practitioners and the various other professions to which I have referred. The second submission is that the MPS does not exist for the purpose of the professions practised by its members but for the purposes of the members themselves. It is therefore not a organisation "whose members carry on a particular profession… for the purposes of which the organisation exists".
16. As to the first submission, it is clearly correct that the MPS has members who practise in more than one profession. However, I do not accept that the words "a particular profession" limit the third category to organisations whose members are confined to a single profession. There would be no logic in that. To include within the third category an organisation all of whose members are doctors but to exclude an organisation half of whose members are doctors and the other half dentists would be absurd. Similarly, it would be absurd if an organisation with a single profession as its catchment were to be removed from the third category upon a subsequent amalgamation or reorganisation which brought in a second profession. Furthermore, to confine the third category to organisations representing a single profession would inevitably encourage disputes about the categorisation and sub-categorisation of professions. For all these reasons I reject this submission.
17. So far as the alternative submission is concerned, I accept that, as the Employment Tribunal found, the MPS regards itself as performing services for its individual members rather than for the medical profession as a whole. However, that self perception is not conclusive. In referring to "for the purposes of which the organisation exists", the draftsman was clearly intending to confine the third category to the purposes of the profession. Accordingly, it was no doubt intended to exclude organisations whose members may come from a particular profession but whose purpose is, say, sporting or cultural. In the course of submissions there was a debate along a spectrum stretching from the Law Society to a golfing society which exists solely for the benefit of the members of a particular profession. Clearly the former falls within the third category but the latter does not. Equally clearly, the MPS falls somewhere between those two extremes. I refer again to its purposes as found by the Employment Tribunal in the passage quoted at paragraph 5 above. The provision of advice and representation is not limited to the defence of compensation claims and the provision of an indemnity. It often includes advice and representations in relation to professional disciplininary matters.
18. When the Employment Appeal Tribunal considered this submission it concluded (paragraph 18):

"In our opinion, the focus of the language is not so much on whether the organisation exists for the purpose of the profession of its members but rather on whether the organisation exists for the purpose of enabling or assisting its members to carry on their profession. We can think of no rational reasons why Parliament would want to extend the statutory protection from discrimination in section 11 to members of only those professional bodies which seek to advance the interests of the profession as a whole and not to members of professional bodies which enable or assist its members to carry on their profession."

I find myself in broad agreement with this approach. Indeed, it is a useful tool in considering where on the spectrum a particular organisation lies. I agree with the Employment Tribunal and the Employment Appeal Tribunal that, assuming the MPS not to be within the first category, it would be an organisation "who members carry on a particular profession ….for the purpose of which the organisation exists". This is apparent from the findings of the Employment Tribunal as to what the MPS does and the analytical approach of the Employment Appeal Tribunal.

19. A point made by Mr. Pannick in relation to section 11(1) as a whole is that we should not be concerned if, on a proper construction, the MPS does not come within the section at all because, even if it does not, there is still the potential of liability under Part III of the Act, which is headed "Discrimination in Other Fields". Section 25 renders it unlawful for associations not within section 11 to discriminate against members and prospective members. The remedy lies not in the Employment Tribunals but in designated County Courts: section 57. It is suggested that in the present context this mitigates the general policy of construing anti-discrimination legislation inclusively wherever possible. I am unmoved by this submission, partly because to divert a claimant to the County Court may have serious cost implications but mainly because, in my judgment, there is no ambiguity in section 11 in any event.

Conclusion

20. It follows from what I have said that I consider that the Employment Tribunal was correct to hold that the MPS falls within the first category – "an organisation of workers", In the circumstances, the third category does not arise although, if it did, the MPS would fall within it. I would dismiss the appeal.

Lord Justice Latham:

21. I agree.

The President of the Family Division

22. I also agree.
Order: Appeal dismissed with the costs subject to detailed assessment if not agreed. Respondent to provide details of his expenses. Permission to appeal was refused. (Order does not form part of the approved judgment)