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
HIS HONOUR JUDGE D PUGSLEY
EAT093903RN

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 March 2005

Lord Justice Pill :

The Background

1. This is an appeal by Mr Rajendra Chaudhary ("the appellant") against a decision of the Employment Appeal Tribunal ("the EAT"), His Honour Judge Pugsley presiding, dated 8 January 2004, whereby the EAT dismissed an appeal by the appellant against a decision of an Employment Tribunal sent to the parties on 7 November 2003. The Employment Tribunal unanimously decided that the appellant's claims be struck out on the ground that the Tribunal did not have jurisdiction to hear them.
2. The appellant is a urologist of Indian ethnic origin. Having qualified as a doctor in India, he became an FRCS in Edinburgh (December 1988) and London (July 1989). He is also the holder of a Diploma in Urology from the Institute of Urology in London (July 1991).
3. The appellant has been involved in several sets of proceedings arising out of his failure to secure acceptance to the grade of Specialist Registrar and entry onto the Register of Specialists as provided under the European Specialist Medical Qualifications Order 1995 (SI 1995/3208) ("the 1995 Order"). The Specialist Register is a register of medical practitioners who are eligible to be appointed as consultants in the National Health Service. In his judgment in one of those proceedings, Chaudhary v Royal College of Surgeons & Others [2003] ICR 1510 (referred to in this judgment as "Chaudhary (No 1")), Mummery LJ has most helpfully set out the history of the various proceedings. Chaudhary( No.1) involved a complaint by the appellant against the decision of the Specialist Training Authority ("STA") refusing entry on the Specialist Register. The present proceedings are those described by Mummery LJ, at paragraph 45, as "the Manchester Tribunal proceedings (Specialist Training Authority)". The originating application was dated 25 July 2001.
4. The complaint in the present case is that the Specialist Training Authority Appeal Panel ("the Appeal Panel") discriminated against the appellant on racial grounds in refusing, on appeal to them from the decision of the STA, to have his name entered onto the Specialist Register. The appeal was dismissed on 29 November 2000, following a three day hearing, and reserved reasons were sent to the appellant on 8 May 2001. The decision of the Appeal Panel differed from that of the STA in that more of the appellant's training was recognised but a further period of training was held to be required. Direct discrimination, indirect discrimination and discrimination by way of victimisation under the Race Relations Act 1976 ("the 1976 Act") are alleged. The appellant claims that the other respondents have aided the Appeal Panel in the discrimination. He maintains that his claim can be brought before an employment tribunal. The Tribunal concluded that, by virtue of section 54(2) of the 1976 Act, it had no jurisdiction. The EAT reached the same conclusion.

The Statute

5. Under the heading "Qualifying Bodies", Section 12(1) of the 1976 Act provides:

"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."

Section 54 provides:

"(1) A complaint by any person ("the complainant") that another person ("the respondent")-

(a) committed an act…against the complainant which is unlawful by virtue of Part II [which includes section 12], section 76ZA or, in relation to discrimination on grounds of race or ethnic or national origins, or harassment, sections 26A, 26B or 76; or

(b) is by virtue of section 32 or 33 to be treated as having committed such an act…against the complainant,

may be presented to an employment tribunal.

(2) Sub-section (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."

Chaudhary (No.1) and the present permission.

6. Several issues arose in Chaudhary (No 1), one being identified by Mummery LJ at paragraph 84:

"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 section 54(2) of the 1976 Act in view of the statutory jurisdiction of the appeal panel in respect of decisions of the specialist training authority?"

It is conceded that the Appeal Panel is a qualifying body within the meaning of section 12 of the Act.

7. At paragraph 86, Mummery LJ described the complaint in Chaudhary( No.1):

"Mr Chaudhary's complaint is of race discrimination in the refusal of the specialist training authority to enter him on the specialist register. His case is that the criteria by which the specialist training authority assessed his application and the application of the criteria involved unlawful discrimination on the ground of race and victimisation."

8. Permission to appeal was given in this case by Mummery LJ following an oral hearing on 15 June 2004. Mummery LJ had given the leading, and only reasoned, judgment in Chaudhary (No 1). Mummery LJ noted that Chaudhary (No 1) was a complaint by the appellant against the decision of the Specialist Training Authority refusing entry on the Specialist Register. When giving permission, Mummery LJ noted that the complaint in this case is principally against the Appeal Panel itself, which is not subject to a statutory right of appeal. Mummery LJ acknowledged the possibility that there may be distinctions between the earlier case and the present one which is brought upon the construction of the relevant provisions of the 1976 Act and Article 6 of the European Convention on Human Rights ("the Convention"), now to be applied by virtue of the Human Rights Act 1998 ("the 1998 Act").

Submissions

9. On behalf of the appellant, Mr Hendy QC submits that the relevant "act" for the purposes of section 54 of the 1976 Act was the act of the Appeal Panel. The Panel itself, it is submitted, was guilty of racial discrimination. No statutory right of appeal is given against the decision of the Appeal Panel and it follows that the act of the Appeal Panel is not covered by section 54(2).
10. Section 54 must now be read consistently with the obligation in Article 6 of the Convention. Section 3 of the 1998 Act, it is submitted, now requires the word 'act' in Section 54(2) of the 1976 Act to be read in the way claimed because only that construction permits an applicant to exercise his right of access to the courts under Article 6 for the determination of his civil rights. "The right of access constitutes an element which is inherent in the rights stated by Article 6(1)" (Golder v United Kingdom [1975] 1 EHRR 524).
11. Mr Hendy submits that the right, admittedly available, to seek judicial review of a decision of the Appeal Panel does not satisfy the requirements of Article 6 of the Convention. He submits that it has substantial disadvantages by comparison with remedies in an employment tribunal:

a) Remedies are less comprehensive, for example, compensation for injury to feelings cannot be obtained.

b) The procedure is less favourable, for example, in not having a requirement to answer a questionnaire.

c) The ordinary courts lack the expertise of Chairman and members of employment tribunals in relation to employment matters and, in particular, discrimination issues. For example, a jurisdiction in relation to the drawing of inferences, an important aspect of discrimination cases, has been developed in employment tribunals.

d) Judicial review offers less opportunity to investigate issues of fact which may, in relation to indirect discrimination for example, be complex.

e) In an employment tribunal, an applicant is not normally vulnerable in costs; in judicial review he is.

12. These submissions were in substance made by Mr Hendy in Chaudhary(No.1) and noted by Mummery LJ at paragraphs 115 and 117 of his judgment.
13. It is also submitted on behalf of the appellant that the 1995 Order and regulations under which the Appeal Panel is set up do not constitute an "enactment" within the meaning of that word in Section 54(2) of the Act. It is not now suggested that the Appeal Panel is not "an independent and impartial tribunal" within the meaning of Article 6. It is accepted and asserted that the proceedings before the Appeal Panel constitute "an appeal or proceedings in the nature of an appeal" within the meaning of the sub-section.
14. Mr Hendy submits that even if the Appeal Panel was merely repeating or adopting racial discrimination practised by the STA, Section 54(2) would not preclude an application to an employment tribunal based on a decision of an Appeal Panel. The decision of the Appeal Panel would be a sufficient "act" to exclude the operation of Section 54(2).
15. For the respondents, Mr Havers QC submits that the meaning of the word "act" in Section 54(2) of the 1976 Act has already been determined in Khan v General Medical Council [1996] ICR 1032. The relevant complaint was against the final decision, that of the President, and the submission now made on behalf of the appellant was rejected in clear terms. In Chaudhary (No.1), Khan was affirmed and it was held that the Appeal Panel throughout came within the scope of Section 54(2). Parliament had provided an alternative route for Section 12 appeals. The route, in present circumstances, via the Appeal Panel, together with the availability of judicial review, is compliant with Article 6 of the Convention.

The Appeal Panel

16. The membership and functions of the STA are set out in the 1995 Order. Part III of the Order provides (Article 6) for the issue by the STA of certificates of completion of specialist training (CCSTs) to those who complete approved specialist training and (Article 7) for the conditions which training must satisfy before it can be approved for this purpose. Part IV requires the General Medical Council to keep and publish a register of specialists, including those who have been awarded a CCST. Part VI requires the STA to set up an appeal mechanism against its decisions. Article 13 of the Order 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."

17. The STA promulgated regulations governing appeals under Article 13, the relevant regulations being promulgated on 21 January 2000. I gratefully adopt the summary of the effect of the regulations set out in paragraph 96 of Mummery LJ's judgment in Chaudhary (No 1):

"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 reimbursed 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."

18. Information about the appeal hearing process issued by the STA in January 2000 confirmed that "the appeal panel will be dealing with the appeal by way of a complete reconsideration of the application and not just a review of the STA decision."

Khan v General Medical Council and Chaudhary (No.1)

19. In Khan, the applicant was claiming full registration as a medical practitioner in accordance with Section 25 of the Medical Act 1983 ("the Medical Act"). He claimed that he had been directly discriminated against on the ground of race. While the machinery by which such an application is considered is different under the Medical Act from that now under consideration, it is very difficult to distinguish in a material way the circumstances in the present case from those in Khan, as considered in this court. Submissions in Khan were comprehensive.
20. Having had his application for full registration twice refused, Dr Khan applied for a second time to the "Review Board for Overseas Qualified Practitioners" established under the Medical Act. In accordance with the procedure under that Act, the Review Board formed the opinion that the decision not to grant full registration ought to stand and notified that opinion to the President of the General Medical Council ("GMC") who considered the report from the Review Board and decided that the decision should stand. (Sections 28 and 29 of the Medical Act).
21. Of that procedure Neill LJ stated, at page 1040H:

"Although they were attractively presented, I, for my part, was not persuaded by any of the arguments advanced to us on behalf of Dr Khan. It seems to me that the two-stage procedure provided for in Section 25 and Sections 28 and 29 of the Act of 1983 clearly fell within the formal procedure which is envisaged by Section 54(2) of the Act of 1976. The decision at the first stage, under Section 25, was taken by a committee which was set up for that purpose under paragraph 15 of Schedule 1. An applicant, such as Dr Khan, who was dissatisfied was then able to ask for the matter to be reviewed by the Review Board. The matter then went to the Review Board set up in the manner prescribed by Section 28. The Board made a determination and expressed an opinion. In the light of that opinion, the president made his decision. …

In my judgment, this was a two-stage decision which is aptly covered by the words of Section 54(2). It was submitted that this procedure does not enable the medical practitioner to seek an effective judicial remedy. In my judgment, that argument does less than justice to the fact that the review procedure is provided for by statute. Parliament has enacted, for the purpose of adjudicating on these medical qualifications, that the machinery set out in Part III of the Act of 1983 is the proper machinery. It is the prescribed substitute in this particular area for the machinery which in other areas is covered by the work of an industrial tribunal."

22. Neill LJ accepted, at page 1041H, that there were situations under the Medical Act in which no proceedings in the nature of an appeal against the initial decision were available and in such cases the applicant retained a right to bring a complaint to an employment tribunal.
23. Neill LJ went on to consider other submissions made in Khan which have also been made in the present case. He stated, at page 1042B:

"I turn then to the argument that the relevant act of discrimination – that is the act for the purposes of Section 12 of the Act of 1976 – was the decision of the president. In my judgment, this argument, which I think it is fair to say emerged at a late stage, does not fit in with the provisions of the Act of 1976. We are dealing here with Section 12(1)(b). What is complained of is the refusal of the application. In that context, that clearly refers to the original refusal by the committee, who considered Dr Khan's application under section 25 of the Act of 1983. Section 54(2) of the Act of 1976, in my judgment, is directed to an appeal or proceedings following that first determination.

Finally, one comes to the argument that the effect of Section 54(2) is not to operate as a bar to a complaint to an industrial tribunal and that the proceedings under Section 29 of the Act of 1983 merely have to be exhausted, but once they have been exhausted then the application or complaint can be made to the industrial tribunal under Section 54(1). Mr Allen fairly described that argument as a matter of first impression. I must admit, whether one deals with it on the first or second impression, I am unable to accede to it. It seems to me quite clear that Section 54(2) provides that, where there is an alternative remedy provided by statute, that remedy excludes the remedy under Section 54(1)."

24. Hoffmann LJ agreed with that analysis. Having considered the statutory procedure, Hoffmann LJ stated at page 1043E:

"For my part, I do not see why it should not be regarded as an effective remedy against sex or race discrimination in the kind of case with which Section 12(1) of the Race Relations Act 1976 deals. That 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 proving 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 Section 12 of the Act of 1976: see per Taylor LJ in Reg v Department of Health, ex parte Gandhi [1991] ICR 805, 814. This seems to me a perfectly legitimate view for Parliament to have taken. Furthermore, Section 54(2) makes it clear that decisions of the review board would themselves be open to judicial review on the ground that the board failed to have proper regards to the provisions of the Race Relations Act 1976. In my view, it cannot be said that the Medical Act 1983 does not provide the effective remedy required by Community Law.

I can deal more shortly with Mr Allen's alternative submission which was that the matter about which his client was making complaint under Section 12(1) of the Act of 1976 was not the original decision not to register him, but the decision of the Review Board, against which there was no appeal and which, therefore, did not come within Section 54(2) of the Act of 1976. Section 54(2) distinguishes between an act under Section 12(1), in respect of which complaint is made, and an appeal in respect of that act. In my judgment, if follows that for these purposes the appeal cannot itself be the act in respect of which complaint is made."

25. Waite LJ agreed with both judgments.
26. In Chaudhary (No.1), the court reached the same conclusions, Mummery LJ stating, at paragraph 104, 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." Citing Hoffmann LJ in Khan, Mummery LJ also concluded, at paragraph 108:

"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".

27. At paragraph 110 in Chaudhary (No.1), Mummery LJ considered the submission that Mr Chaudhary's case could be distinguished from that of Dr Khan because the appeal procedure in the present case is not under an "enactment". Mummery LJ stated, at paragraph 110:

"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."

Distinctions claimed

28. I respectfully agree with the conclusions in Khan and in Chaudhary (No.1) which in any event are binding in this court. I refer to grounds on which Mr Hendy has sought to distinguish them. Some repetition is involved:

a) Whereas under the Medical Act, a review board can only "review" the earlier decision, the Appeal Panel may "reconsider" the question and "determine" it.

b) The present complaint is that the Appeal Panel itself acted in a discriminatory manner whereas in Khan and in Chaudhary (No.1) the complaint was of racial discrimination at a earlier stage in the procedure. On the concession that the Appeal Panel is "a qualifying body" within the meaning of Section 12 of the 1976 Act, the Panel's conduct involves a fresh "act" within the meaning of Section 54(2) (paragraph 9 above).

c) The limitations upon a remedy by way of judicial review (paragraph 11 above) require further consideration.

d) The conclusions in the earlier decisions as to the meaning of Section 54(2) require review now that the 1998 Act is in force (paragraph 10 above). Mummery LJ considered points arising from Article 6 of the Convention in Chaudhary (No.1) but did not determine them.

Conclusions

29. In my judgment, the points raised do not justify in the present case a result different from that in Khan and Chaudhary (No.1), applying the principles stated in this court in those cases. The words "review" and "reconsideration" are not materially different for the purpose of deciding whose "act" is in question. Both come within the expression "appeal, or proceedings in the nature of an appeal," in Section 54(2) of the 1976 Act. Moreover, the emphasis upon complete reconsideration tends to confirm the effectiveness of the appeal procedure provided. Hoffmann LJ in Khan (page 1043F) also referred to the advantage, in terms of providing an effective remedy, of the specialisation in their field, of tribunals, such as the Review Board in Khan, when dealing with professional qualifications.
30. The decision complained of in Khan was that of the decision maker of last resort under the statutory procedure, the President of the GMC. The members of the court in Khan had that well in mind when considering the meaning of the word "act" in Section 54(2). The act, "in respect of which an appeal may be brought", is not the appeal itself or the decision reached on such appeal even though the Appeal Panel is, or is a part of, a qualifying body. A single appeal is contemplated, backed by the possibility of judicial review. A procedure such as that in my view contemplated in Section 54(2) could not work if it could be defeated by reference to the absence of a further appeal from the appeal tribunal. Moreover, any other appeal procedure is only as effective as the tribunal of final appeal makes it and the procedure shares that characteristic with other appeal procedures.
31. An effective remedy must be provided, and was required before the 1998 Act came into force, as recognised by Hoffmann LJ in Khan. The right of appeal to the Appeal Panel as constituted, with the possibility of a judicial review of its decisions, is in my judgment an effective remedy in the circumstances. The relevant sections in the 1976 Act are unambiguous. There is no basis for construing them in a way different from that adopted in Khan. Section 12 of the 1976 Act is concerned essentially with status, though the financial effects of decisions taken under it may be far reaching. The procedure under the 1995 Order in my view provides an effective procedure for the determination of status, backed, as it is, by the right to seek judicial review.
32. The procedure is a lawful alternative in this context to a procedure by way of complaint to an employment tribunal under section 54(1). The remedies available by way of judicial review (R (Alconbury Developments Ltd) v Secretary of State for the Environment [2003] 2 AC 295) provide an appropriate safeguard for applicants in present circumstances. It would be open to the Court, on judicial review, to consider whether the Appeal Panel had acted in a racially discriminatory manner.
33. The obligation imposed by Article 6 of the Convention does not in my judgment render the procedure under the 1995 Order unlawful. In Wilson v First County Trust Ltd (No.2) [2004] 1 AC 816, Lord Nicholls of Birkenhead stated, at paragraph 34:

"The basic principle underlying Article 6(1) is that "civil claims must be capable of being submitted to a judge for adjudication": see Fayed v United Kingdom [1994] 18 EHRR 393, 429, para 65. Thus a typical case within Article 6(1) is where a person enjoys under national law what is arguably a civil right but the only forum for deciding a dispute over the existence or enforcement of the right is a tribunal which is not independent and impartial. So procedural bars on bringing claims to court may fall within Article 6(1). So also may procedural bars having the effect of preventing claims being decided on their merits. Tinnelly & Sons Ltd v United Kingdom [1998] 27 EHRR 249, 288-292, paras 72 to 79, is an example of the latter. The issue of a "national security" certificate had the effect of preventing complaints of religious discrimination being considered on their merits by a Fair Employment Tribunal. That was a violation of Article 6(1)."

34. An effective remedy is provided. The appellant had access to and had a fair and public hearing by an independent and impartial tribunal established by law. The substitution of the procedure provided under the 1995 Order for the statutory procedure provided in other defined circumstances under Section 54(1) of the 1976 Act does not involve a breach of Article 6.

Procedure and substance

35. Mr Havers seeks to keep open the argument, in relation to the Article 6 submission, that Section 54 is concerned with the substantive content of rights so that sub-section (2) does not represent a procedural bar in Article 6 terms. The Employment Tribunal and the EAT held that Section 54 amounted to a "determination by the legislative of substantive rights and not a procedural bar" (EAT paragraph 21). Section 54 is to be read, it is submitted, as providing avenues to different sets of substantive rights in the law of England and Wales the content of which Article 6 does not guarantee. (Matthews v Ministry of Defence [2003] 1 AC 1163, and Wilson (above). In Wilson, Lord Nicholls stated, at paragraph 34:

"The distinction between the substantive content of a right and an unacceptable procedural bar to its enforcement by a court can give rise to difficulty in distinguishing the one from the other in a particular case. As a matter of drafting, a restriction on the scope of a right may be framed in several different ways. But the drafting technique chosen by the draftsman cannot be determinative of this issue. Human Rights conventions are concerned with substance, not form, with practicalities and realities, not linguistic niceties. The crucial question in the present context is whether, as a matter of substance, the relevant provision of national law has the effect of preventing an issue which ought to be decided by a court from being so decided. The touchstone in this regard is the proper role of courts in a democratic society. A right of access to a court is one of the checks on the danger of arbitrary power. In Matthews v Ministry of Defence [2003] 1 AC 1163, 1207-1208, para 142, Lord Walker of Gestingthorpe noted that Article 6 is in principle concerned with the procedural fairness and integrity of a state's judicial system. Lord Hoffmann observed, at p447, para 29, that it should not matter how the law is framed, provided one holds onto the underlying principle which is to maintain the rule of law and the separation of powers.

On my findings, there is no breach of Article 6 even if Section 54(2) and the 1995 Order are treated as a potential "procedural bar". It is not necessary on that view of the present case to attempt to resolve the question posed by Lord Nicholls and, especially as submissions on the point have been brief, I do not propose to do so.

Result

36. I would dismiss this appeal.

Lord Justice Keene:

37. I agree.

Lord Justice Neuberger:

38. I also agree.
ORDER:
39. Appeal dismissed.
40. Appellant to pay the respondent's costs, subject to a determination of the assister person's liability for costs under regulation 127 of the Civil Legal Aid (General) Regulations 1989, now the Community Legal Service Regulations 2000.
41. Application for leave to appeal to the House of Lords refused.
(Order does not form part of approved judgment)