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
HHJ PETER CLARK PRESIDING
EAT/0512/04 and 0513/04

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/ 7/2007

Lord Justice Mummery :

Introduction

1. This is the judgment of the court following the inter partes hearing of an adjourned application for permission to appeal. The case is one of alleged race discrimination for which it is sought to make the Secretary of State for Health (the Secretary of State) vicariously liable. The claim failed both in the employment tribunal and in the Employment Appeal Tribunal (the EAT).
2. At the end of the oral submissions we stated that permission to appeal would be refused and that a judgment setting out our reasons in writing would be handed down at the same time as judgments on the substantive appeal in British Medical Association v. Chaudhary (the BMA appeal). As directed by this court on 11 November 2005 this permission application was listed for hearing along with the BMA appeal, for which permission had already been granted under a combination of orders of the EAT and of this court.
3. For a better understanding of the background to this marathon litigation the judgments on this application and on the BMA appeal should be read together. The dismissal of the application for permission to appeal is relevant to some of the arguments in the BMA appeal. We have set out the detailed facts and the relevant law in the judgment on the BMA appeal. They are only repeated in this judgment to the extent that it is necessary to explain our reasons for refusing permission to appeal.
4. Two earlier decisions of this court in employment tribunal cases brought by Mr Chaudhary may also be read for the relevant background facts and issues: Chaudhary v. Royal College of Surgeons & Ors [2003] ICR 1510; [2003] EWCA Civ 645 and Chaudhary v. Specialist Training Authority Appeal Panel & Ors [2005] EWCA Civ 282.
5. The application is for permission to appeal from the decision of the EAT (HHJ Peter Clark presiding) on 4 October 2005. After a 4 day hearing, the EAT dismissed Mr Chaudhary's appeals from two decisions of the employment tribunal in Manchester. The proceedings, which were commenced on 23 December 1998, have been described as the "Manchester 1" proceedings. Explanations of the long delays in bringing the Manchester 1 proceedings to a hearing will be found in the earlier decisions of this court noted in paragraph 4 above.
6. The Secretary of State is now the only effective respondent to the Manchester 1 proceedings and accepts vicarious liability for the acts of alleged discrimination, if any, by Dr Hugh Platt in his capacity as the Post Graduate Dean for Wessex. Dr Platt was joined by Mr Chaudhary as one of the original respondents to the Manchester 1 proceedings.

Employment tribunal decisions

7. In its first decision of 15 April 2004 the employment tribunal made preliminary rulings on two points. The first ruling was on an application to amend the originating application by adding two new comparators. The second ruling was by way of clarification of the scope of the pleading on the issue of Mr Chaudhary's stated ethnic or racial group.
8. In its second decision of 24 April 2004 the employment tribunal dismissed Mr Chaudhary's claims that the Secretary of State was vicariously liable for acts of direct and indirect discrimination and victimisation, having found that Dr Platt had not committed any acts of race discrimination or victimisation against Mr Chaudhary.
9. The essence of Mr Chaudhary's case against Dr Platt was that, either directly or indirectly, he discriminated against him on the ground of race in a decision letter of 15 December 2003. In that letter Dr Platt confirmed his view that Mr Chaudhary did not qualify for automatic entry into the new Specialist Registrar Grade (replacing the position of Senior Registrar), as he had not held a Registrar post approved by the Specialist Advisory Committee (SAC).
10. The employment tribunal (chaired by Mr ML Creed) heard argument on preliminary issues on 12-15 January 2004. The decision on the preliminary issues was announced on 15 January when the substantive hearing began. The substantive hearing continued through January and February 2004. The written decision containing the preliminary rulings was sent to the parties on 15 April 2004, that is after the substantive hearing was over. The substantive decision was sent to the parties on 27 April 2004.
11. Both decisions were unsuccessfully appealed by Mr Chaudhary to the EAT.
12. The issue for this court on the application for permission was whether Mr Chaudhary has a real prospect of success on his proposed appeal, bearing in mind that an appeal to this court in cases of this kind is limited to a question of law.

A. The preliminary rulings

(a) The comparators issue

13. Mr John Hendy QC, who appears for Mr Chaudhary, submitted that the employment tribunal erred in law in rejecting Mr Chaudhary's application for permission to amend his originating application to rely on two additional comparators in order to establish direct race discrimination by Dr Platt.
14. The comparators issue was important on the direct discrimination claim. Mr Chaudhary claimed that he had been directly discriminated against on racial grounds, as he was treated less favourably than others of different ethnic origin. He alleged that Dr Platt had refused to grant him automatic transition to the new Specialist Registrar grade, whereas he had granted automatic transition to the Specialist Registrar grade to other doctors of different ethnic origin, who had not held an SAC recognised Registrar post.
15. In the further particulars of his originating application Mr Chaudhary named two comparators, Mr Brough and Mr Lau, as doctors of different ethnic origin in the Manchester region, who were allowed to become Specialist Registrars by the Post Graduate Dean for that region (Professor Houston), even though they had not held SAC approved Registrar posts.
16. On 4 December 2003 Mr Chaudhary applied to amend his originating application to add as two additional white comparators, Mr Wedderburn and Mr Hayes. They were both doctors in the Wessex region, whose cases had been dealt with by Dr Platt. The tribunal found that they had entered the Specialist Registrar grade in open competition, not by automatic entry as Mr Chaudhary sought to do. The tribunal also found that the National Training Number (NTN) provisionally allocated to Mr Wedderburn was subsequently withdrawn by Dr. Platt, who decided, after taking advice, that Mr Wedderburn was not eligible because he had not been appointed to an SAC-approved post in urology.
17. The employment tribunal refused Mr Chaudhary's application to amend on three grounds: (a) it would introduce "an entirely new basis of claim"; (b) it was made very late and well out of time; and (c) there was no satisfactory reason for the lateness.
18. The EAT held that the employment tribunal was entitled to reject the application to amend. The Secretary of State contended that there was no real prospect of upsetting the decision on an appeal to this court. It was a case management decision made by the employment tribunal in the exercise of its discretion. There was no arguable error of law in it. It was not plainly wrong.
19. Mr Hendy disagreed. He pointed out that the employment tribunal was under the impression that Mr Chaudhary was attempting to broaden his claim and fundamentally change the nature of his case by making allegations of discrimination against a Mr Bramble, who, as chairman of the Associate Speciality Education Committee in Urology in Wessex, advised Dr Platt, and at the open competition stage rather than the automatic stage of entry to Specialist Registrar status, which had been dealt with by Dr Platt. If this were so, further investigation and evidence would be required to deal with the amended case.
20. Mr Hendy pointed out that this was a misunderstanding of the position on the part of the tribunal. Mr Chaudhary had stated in his letter of 15 December 2003 that he was seeking to add two new comparators to an existing cause of action and not to add a new cause of action.
21. Mr Hendy also submitted that, although the application was made late, the employment tribunal was wrong in holding that the reason for the late application was unsatisfactory. Mr Chaudhary made the application following late disclosure of documents by the Secretary of State on 25 November 2003. He had acted promptly on the information made available to him as answers to his questions by making the formal application at the directions hearing on 4 December 2003. The application was argued and ruled on at the hearing 12-15 January 2004.
22. In our judgment, there is no real prospect of success in an appeal in this point. There was no arguable error of law by the employment tribunal in refusing permission to amend to include the two additional comparators.
23. First, this was a case management decision made by the employment tribunal in the exercise of its discretion. This court would not interfere with it unless there was an error of legal principle or for some other reason the ruling was plainly wrong.
24. Secondly, although the tribunal were mistaken in thinking that Mr Chaudhary was seeking to add a new cause of action in respect of obtaining a Specialist Registrar post by open competition, as distinct from automatic transition to the Specialist Registrar grade, the refusal of the proposed amendment did not prejudice Mr Chaudhary as regards his existing cause of action against Dr Platt. As recorded in the decision, the Secretary of State stated, through his counsel, that he did not object to Mr Wedderburn being used by Mr Chaudhary as a comparator in the existing cause of action based on the refusal of automatic transition. The tribunal in fact considered the evidence relating to Mr Wedderburn, but found that he was not in fact a true comparator.

(b) The additional racial groups issue

25. The racial group issue was important on the indirect discrimination claim. It was submitted by Ms Monaghan, who argued the case for Mr Chaudhary on this point, that the employment tribunal erred in law in restricting the racial group to persons of "Indian ethnic origin." It should have allowed Mr Chaudhary to include persons of non-UK or non-EU nationality (i.e. overseas doctors). In relation to this submission the procedural history of the formulation of Mr Chaudhary's indirect discrimination claim had to be examined in some detail.
26. The indirect discrimination claim was based on the allegation that Dr Platt had applied to Mr Chaudhary's case a condition or requirement that he should have held an SAC recognised Registrar post in order to qualify for automatic transition to the Specialist Registrar grade. In the originating application, which he had drafted himself, Mr Chaudhary described himself as of "Indian ethnic origin."
27. In respect of the claim for indirect discrimination he was asked on 28 June 2003 for particulars of the condition or requirement applied by Dr Platt to him on 15 December 1998, with which he could not comply, and the racial group to which he belonged. On 28 July 2003 the solicitors then acting for Mr Chaudhary (Messrs Russell Jones & Walker) responded that he is of "Indian ethnic origin" and that the condition or requirement applied by Dr Platt on 15 December 1998 was that, for the purpose of entry into the Specialist Registrar grade, a Registrar post had to have approval by the SAC.
28. In the amended Notice of Appearance dated 7 October 2003 the Secretary of State set out his understanding of Mr Chaudhary's case on indirect discrimination as follows-

" 35. The requirement that for the purpose of automatic entry during transition into the Specialist Registrar grade, a Registrar post had to have SAC approval, was such that the proportion of persons of Indian origin and fulfilling the other requirements for entry into the Specialist Registrar grade during transition, who could comply with that requirement, was considerably smaller than the proportion of persons not of Indian origin and fulfilling the other requirements for entry into the Specialist Registrar grade during transition, who could comply with it."

29. At a Directions Hearing on 7 October 2003 it appears that Mr Chaudhary made comments on paragraph 35, which led the Solicitor to the Secretary of State to write to Mr Chaudhary, who was again acting in person, to check whether the Secretary of State's understanding of his case was correct. He was asked in a letter of 20 October 2003 to indicate the precise requirement, which he said was applied to him by Dr Platt, and the "pool" which he said was relevant for this purpose.
30. Mr Chaudhary replied on 28 October 2003 stating that his primary case was that he satisfied all the requirements for automatic entry into the Specilaist Registrar grade and that the requirement to have held a Registrar post with SAC approval was not a genuine requirement and/or not set out in the regulations and that the imposition of it was contrary to section 1(1)(a) of the 1976 Act.
31. With regard to the disparate impact of the requirement to have held a post with SAC approval, he stated that his case was as he then set out in the following series of permutations: Indian or Asian ethnic or racial origin; persons of non-UK or non-EU nationality and persons of UK or EU nationality; Visiting Registrars and Career Registrars; non-Whites or Indians and Whites; or persons of non-UK or Indian national origin and persons of UK national origin.
32. Not surprisingly the Solicitor for the Secretary of State pointed out that the case set out by Mr Chaudhary in the letter of 28 October 2003 was not the case pleaded by Mr Chaudhary in his particulars of 28 July 2003 and that he would need to apply for permission to amend, if he wished to include the allegations, as to which the Secretary of State reserved his position to oppose the amendment.
33. Mr Chaudhary replied that he was not a lawyer and had to rely on the employment tribunal's guidance. He suggested that the Secretary of State should apply to the employment tribunal to ask him to amend and that he would await the tribunal's guidance. In a letter of 7 November the Secretary of State made his position clear: Mr Chaudhary was not entitled to rely on the case set out in the letter of 28 October, as he had not pleaded it, and that it was for him to apply for permission to amend his claim to include those matters and that, in the absence of an amendment, the Secretary of State would be proceeding on the basis of his claim as set out in paragraph 35 of the amended Notice of Appearance.
34. In his reply of 10 November Mr Chaudhary rejected the suggestion that he should seek amendment to admit the matters of which the Secretary of State had sought particulars and he rejected the suggestion of amendment. On 7 December he sent to the employment tribunal particulars of his amendment regarding additional comparators (Mr Wedderburn and Mr Hayes) and dealt with various other points, but not the issue of racial groups. The Secretary of State gave notice that that amendment was opposed on the ground that it sought to add a new cause of action and was more than 6 years out of time.
35. That was the position when the matter came before the employment tribunal in the middle of January 2004. By that time Mr Chaudhary was again legally represented, this time by leading counsel (not Mr Hendy). A written skeleton argument sent to the Secretary of State on about 12 January 2004 included references to other racial groups as foreshadowed in Mr Chaudhary's letter of 28 October 2003.
36. At the hearing on 12-15 January 2004 no application was made by Mr Chaudhary's leading counsel for permission to amend the application on the racial/ ethnic group issue so as to extend the pleading beyond "Indian ethnic origin". It was, however, indicated to the tribunal that Mr Chaudhary might wish to rely upon a definition other than "Indian ethnic origin" in defining the relevant pool for the purposes of the indirect race discrimination claim.
37. The tribunal heard submissions from each side on the relevant procedural history. It then expressed itself satisfied that the original unamended pleading was how Mr Chaudhary had defined himself. The employment tribunal ruled that he was bound by his stated ethnic group of "Indian ethnic origin" and was not allowed to widen it by introducing a new comparative racial group. The substantive hearing proceeded on that basis. The Secretary of State had prepared his case on the basis of the clear statements in the particulars and it was too late for Mr Chaudhary to seek to redefine the racial group at the hearing.
38. On this point we should state that we do not understand the basis for the tribunal's comment (paragraph 24 (e)) that Mr Chaudhary's's letter of the 28 October was "a smoke screen." The comment does not, however, amount to an error of law by the employment tribunal in holding that the racial group was as pleaded by Mr Chaudhary in his particulars.
39. The EAT dismissed Mr Chaudhary's appeal against the ruling, holding that the employment tribunal had made a permissible case management decision in holding Mr Chaudhary to his pleaded case on the racial group to which he belonged.
40. In arguing the indirect discrimination point on behalf of Mr Chaudhary Ms Monaghan submitted that the relevant racial group was not that of "Indian ethnic origin", but of "overseas doctors" and that the non-EU nationals were capable of being a racial group. She cited the opinion of Lord Fraser of Tullybelton in Orphanos v. Queen Mary College [1965] AC 761 at 770-771 for the discussion of non- British and non-EEC nationals as a racial group.
41. Ms Monaghan's difficulty is not in the 1976 Act or in the authorities, but in the fact that this was not Mr Chaudhary's case before the employment tribunal. We are satisfied that there was no error of law by the employment tribunal on this aspect of the indirect discrimination claim. Keeping Mr Chaudhary to the case that he had initially pleaded and particularised was a permissible case management decision well within the limits of the tribunal's discretion. It could not be in error in refusing Mr Chaudhary permission to amend, as it was not asked for permission. Nor was it in error in holding that, on the case as pleaded, the relevant racial group for the purposes of the indirect race discrimination claim was "Indian ethnic origin."
42. For these reasons we do not find any arguable error of law in the first decision of the employment tribunal. As the proposed appeal has no real prospect of success we refuse the application for permission to appeal.

B. The substantive decision

43. On the application for permission to appeal against the substantive decision of the employment tribunal Mr Hendy took a number of points on behalf of Mr Chaudhary. We shall deal with each of them under separate headings.

Direct discrimination

(a) Less favourable treatment: Mr Brough and Mr Lau

44. This point arises under section 1(1)(a) of the 1976 Act in the context of a claim based on vicarious liability for the acts of Dr Platt, the alleged discriminator for whom the Secretary of State has accepted vicarious liability if discrimination is established for refusing Mr Chaudhary automatic transition to the Specialist Registrar grade. There was no claim for direct discrimination by the Secretary of State.
45. The employment tribunal held that the claim of direct discrimination failed, because Mr Chaudhary had not established that Dr Platt of the Wessex Deanery had treated him less favourably than Mr Brough and Mr Lau. Dr Platt had not been involved in the cases of those two comparators. They had been dealt with by Professor Houston, the Post Graduate Dean of the North West Deanery, assisted by Mr George. Dr Platt was not the actual decision maker in their cases. As he did not treat those comparators at all, there was no question of less favourable treatment of Mr Chaudhary by him on the ground of race. There was therefore no unlawful race discrimination for which the Secretary of State could be liable.
46. The EAT upheld the employment tribunal on this point. The cases cited to us and the EAT on this point included Shamoon v. Chief Constable of Northern Ireland Constabulary [2003] UKHL 11; [2003] ICR 337 at paragraphs 112-115, 124, 128-129, 145-146 (a case in which the two male chief inspectors, who were chosen as actual comparators by the applicant female chief inspector, were not in the same division or region of the RUC as the alleged superintendent discriminator, for whose actions the Chief Constable could be held vicariously liable), and Law Society v. Bahl [2003] IRLR 640 at paragraphs 185-191 Elias J in the EAT: see also [2004] EWCA Civ 1070; [2004] IRLR 799 at paragraphs 100-101, 104, 114, 133, 137, 147, and 155; and Igen v. Wong [2005] EWCA 142; [2005] IRLR 258 at paragraph 65.
47. Mr Hendy submitted that the tribunals below erred in law. He contended that it is immaterial that Dr Platt did not personally deal with the automatic transition of Mr Brough and Mr Lau to the Specialist Registrar grade. The position was that in all cases the Secretary of State, acting through different agents, implemented the same policy for the automatic transition to the Specialist Registrar grade. The intention must have been to achieve uniformity of implementation in a matter on which there was no discretion. It followed that it should be permissible to use as actual comparators the cases of treatment of doctors in other Area Deaneries. The criterion of SAC approval was not applied in the case of Mr Brough and Mr Lau. This gave rise to a prima facie case of direct race discrimination against Mr Chaudhary.
48. Mr Hendy also submitted that, in any event, in the case of Mr Wedderburn the requirement of SAC approval had not been applied by Dr Platt when provisionally giving him an NTN.
49. In our judgment there was no arguable error of law by the employment tribunal on this point. As this was a claim for direct race discrimination by Dr Platt, the tribunal correctly focused on how he, as an individual, treated Mr Chaudhary as compared with how he would have treated a hypothetical comparator in the Wessex area, rather than how another Post Graduate Dean for another area (Manchester) had actually treated Mr Brough and Mr Lau.

(b) Burden of proof

50. The burden of proof point only arises if the employment tribunal and the EAT were wrong on the less favourable treatment point and the actual comparators were relevant.
51. The EAT rejected the submission that, in the light of Igen v. Wong [2005] IRLR 258, the employment tribunal had misapplied the two stage burden of proof in section 54A(2) of the 1976 Act, which provides for the reversal of the burden of proof

"once the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent has committed …an act of discrimination…against the complainant."

52. At the first stage it was for Mr Chaudhary to prove facts from which the employment tribunal could conclude that race discrimination had occurred, such as that Mr Chaudhary was treated less favourably than a person of a different racial group. At the second stage the burden would shift to the Secretary of State to show that the treatment was not on racial grounds.
53. Mr Hendy submitted that the employment tribunal had failed to apply the two stage test. It had conflated the two stages and had wrongly placed the burden on Mr Chaudhary of proving all the elements of direct race discrimination. He referred to paragraphs 16-19, 48 and 80 of the substantive decision as instances of the tribunal placing the burden on Mr Chaudhary of proving both that he was treated less favourably than others of a different racial group and that the less favourable treatment was on racial grounds.
54. There was, he submitted, a prima facie case of race discrimination and the burden of establishing a non-discriminatory explanation was on the Secretary of State. This fundamentally flawed approach of the tribunal vitiated its findings.
55. We are unable to accept this criticism of the employment tribunal. The employment tribunal was not satisfied that Mr Chaudhary had surmounted the hurdle at the first stage. Because of Dr Platt's non-involvement with and lack of knowledge of the cases of the two actual comparators outside his area Mr Chaudhary had failed to establish at the first stage a prima facie case of race discrimination.
56. In Madarassy v. Nomura International PLC [2007] EWCA Civ 33 this court discussed the two stage approach and the Igen v. Wong guidelines. At the first stage the court considers whether there is a prima facie case of unlawful discrimination. This involves considering all the evidence relevant to unlawful discrimination, such as the difference in race, the difference in treatment and the reason for the differential treatment. At this stage the tribunal does not consider the "absence of an adequate explanation."
57. If there is a prima facie case of unlawful discrimination, the tribunal moves to the second stage, at which the burden is on the respondent to prove that he has not committed an act of unlawful discrimination, such as by an adequate non-discriminatory explanation of the treatment of the applicant.
58. The tribunal in this case were entitled to conclude that there was no prima facie case of direct race discrimination. As Miss Carss-Frisk QC said, the fact that Dr Platt reached one decision in respect of Mr Chaudhary, while Professor Houston and Mr George in Manchester reached a different decision in respect of Mr Brough and Mr Lau was not a basis on which the tribunal could conclude that there was a prima facie case of race discrimination against Dr Platt. Accordingly the burden of proof never moved to the Secretary of State to disprove direct race discrimination. There was no difference in treatment by Dr Platt calling for an explanation by him.
59. There is no arguable error of law on the burden of proof point, which would entitle this court to disturb the clear finding of the tribunal that there was no doubt that Dr Platt's reason for not giving Mr Chaudhary an NTN number was that Mr Chaudhary had not occupied an SAC approved post at Manchester (paragraph 35). This was not a racial ground.

(c) The interpretation of Orange Guide

60. Mr Chaudhary also sought permission to appeal against the finding of the employment tribunal that the Orange Guide required applicants to have occupied SAC approved posts in order to be eligible for automatic transition.
61. The relevant part of the Orange Guide is paragraph 8 of Section 2 Part One.

"8. Entry during transition is open to the following groups provided individual candidates satisfy the minimum college or faculty criteria:

(a) senior registrars and honorary registrars

(b) career registrars and honorary registrars who hold either a substantive career registrar appointment or an honorary registrar appointment (for example, lecturers) with staffing and educational approval (by the Royal College or Faculty) recognised by the postgraduate dean; this includes substantive career registrars in this category who are now occupying senior registrar posts on a locum basis: and

(c) doctors who have previously held a substantive registrar appointment with staffing and educational approval (by the Royal College or Faculty) recognised by the postgraduate dean (or in the case of former London SHAs, the dean of the school or institute) and are currently concluding research or other activity recognised by the appropriate educational authority;

(d) ……

(e) overseas doctors who satisfy the criteria set out in Part Three. This includes doctors who were formerly overseas doctors and who have, before or during transition, acquired or are entitled to a right of indefinite residence in the UK (see paragraphs 41-43)"

62. Mr Chaudhary's case based on paragraph 8 was that, at the commencement of the transitional period in Urology, he satisfied all relevant conditions: he had occupied a post in North Manchester which was conferred by a properly constituted appointments committee, acquired in open competition, and which was stated to be "Royal College approved" and provided "excellent training"
63. The tribunal (paragraph 27) held that under these provisions a relevant career registrar post (such as that held by Mr Chaudhary in Manchester) had to have "educational approval (by the Royal College or Faculty)". In the speciality of urology this meant approval by the SAC in urology for higher specialist training. The tribunal went on to explain (paragraph 35) that, while some registrar posts were approved by the SAC for higher specialist training, others were only approved for basic training and that was the function of the Hospital Recognition Committee of the Royal College. The tribunal found (paragraph 36) that the purpose of transition to the new Specialist Registrar grade was to identify and re-label doctors already in higher specialist training. Paragraph 20 of the Orange Guide expressly stated that the first step in setting up the new grade was to transfer existing higher specialist trainees into the new training programmes.
64. Mr Hendy submitted that the finding is perverse and that the interpretation of the Orange Guide was wrong. The alleged requirement had emanated from Professor Mundy.
65. In our judgment, there was no arguable error of law in the tribunal's interpretation of paragraph 8 of the Orange Guide, or in its finding regarding the requirements for entry into the new Specialist Registrar grade. The tribunal was entitled to have regard to the contents of the Orange Guide as a whole in order to ascertain the meaning of the applicable provisions and to have regard to extrinsic evidence of the factual matrix in order to ascertain the purpose and meaning of the applicable provisions.

Indirect discrimination

66. The claim of indirect discrimination failed because Mr Chaudhary had not established disparate impact, the requirement for educational approval was justified and he had suffered no detriment.
67. The EAT rejected the submissions that the decision of the employment tribunal was perverse and inadequately reasoned.

(f) No detriment

68. The employment tribunal found that having held an SAC approved post was a necessary but not a sufficient condition for automatic transition. There were other requirements which Mr Chaudhary did not fulfil, in particular the requirements in paragraph 8(b) and (c) of the Orange Guide as to the activity that a doctor was undertaking at the time of transition. The tribunal found (paragraphs 126-127) that at the time of automatic transition Mr Chaudhary was in a locum registrar post and, quite apart from the question whether there was SAC approval for the Manchester post, he did not fulfil the other requirements of paragraph 8.
69. Mr Hendy submitted that the finding that he suffered no detriment because he would not have qualified for automatic transition was perverse.
70. We are unable to agree. The finding made by the tribunal was one which was open to it on the correct construction of the Orange Guide as applied to the facts relating to Mr Chaudhary's activity at the relevant time.

(g) Disparate impact

71. Mr Hendy submitted that the employment tribunal erred in law and was perverse in holding that there was no evidence of disparate impact arising from the requirement of SAC approval. There was, he said, sufficient evidence of disparate impact, which the tribunal failed to consider and it was inherent in the nature of SAC approval. The tribunal ought to have concluded that the requirement of SAC approval disproportionately disadvantaged non-UK/EEA, non-white and Asian and Indian doctors.
72. For example, it was the view of Dr Platt that non-SAC approved posts were by and large occupied by non-UK/EEA doctors as visiting (overseas) registrars. SAC approved posts were more likely to be held by career registrars seeking to pursue a career in the UK.
73. The evidence established sufficient facts from which the tribunal could conclude that there was disparate impact and thus shift the burden of proof to the Secretary of State, who did not produce any material statistical data to prove the absence of disparate impact, which the Secretary of State was unable to do as there had been no monitoring of employment decisions. The tribunal had given no thought to the burden of proof or to the consequences of the Secretary of State's alleged failure to comply with the Code of Practice or the statutory duties imposed by the 1976 Act and the orders made under it.
74. Miss Carss-Frisk objected that these arguments were raised for the first time on this application for permission and that there were no exceptional circumstances for permitting them to be taken at such a late stage. We agree. The points raise fresh factual questions which may well have led to the need for more evidence, for example on the allegations against the Secretary of State regarding non-compliance with the Code of Practice and statutory duties.
75. In our judgment, there was no arguable error of law in the tribunal's conclusion on disparate impact or in the way that it applied the burden of proof on the material and legal arguments presented to it on this issue (see Nelson v. Carillon Services Limited [2003] ICR 1256.)

(h) Justification

76. The employment tribunal concluded that, if there was disparate impact, the requirement of SAC approval was justified and there was no unlawful indirect discrimination.
77. Mr Hendy submitted that the tribunal misunderstood the concept of justification and the employment tribunal ought not to have concluded that the requirement was justified. In view of its conclusion that there was no evidence of disparate impact the tribunal was unable to consider such issues as proportionality on which a finding of the extent of the disparate impact would be relevant.
78. In any event, Mr Hendy contended, the tribunal ought to have concluded that the discriminatory effect was not countered by the reasonable needs of the Secretary of State, which did not require the use of the requirement in all cases. Further it was inflexible in not allowing for the exceptional circumstances of Mr Chaudhary's case.
79. In our judgment, there was no arguable error of law in the tribunal's decision on this point, which was not necessary for the decision as there was no indirect discrimination which had to be justified. We do not accept the proposition that it is necessarily an error of law for a tribunal to consider questions of justification when it has found that there was no disparate impact.
80. Further, the tribunal was entitled to take into account the fact that eligibility for automatic transition was not an absolute bar to entry to the Specialist Registrar grade since it would be possible to enter by open competition
81. The tribunal was also entitled to conclude (paragraphs 84 and 85) that it would have been unfair to make exceptions to the general requirements for automatic transition.

Victimisation

82. The victimisation claim failed because the protected act relied on by Mr Chaudhary (starting the earlier Southampton proceedings) was not a cause of any action taken by Dr Platt or by the Secretary of State. There was no arguable error of law in this finding.

D. Respondent's notice: time limits

83. A respondent's notice was served seeking to uphold the decision of the employment tribunal on additional grounds. As we are refusing to grant Mr Chaudhary permission to appeal, the points raised in the notice do not need to be considered. For the sake of completeness we briefly mention the point sought to be raised on time limits.
84. The employment tribunal held that Mr Chaudhary's claims were not out of time. Dr Platt's letter of 15 December 1998 was an act complained of by Mr Chaudhary. It was a new decision on the issue of automatic entry to the Specialist Registrar grade. The time for complaining of that act started running afresh. The proceedings were issued within the period of 3 months of that date allowed by section 68 (1)(a) of the 1976 Act, as construed by this court in Cast v. Croydon College [1998] ICR 500.
85. The EAT dismissed the Secretary of State's cross appeal on this point holding that the material request from Mr Chaudhary leading to the letter of 15 December 1998 contained new material.
86. Miss Carss-Frisk submitted that Dr Platt did not make a fresh decision in Mr Chaudhary's case on 15 December 1998 and that the originating application was presented out of time. The tribunal's conclusion was perverse, as Dr Platt had made it clear that the matter had been fully considered and determined in the past and that he was not making a new decision on the merits. The question of time limits did not depend on whether new material had been submitted to Dr Platt by Mr Chaudhary.
87. In our judgment, the employment tribunal was entitled to find that the letter of 15 December 1998 contained a fresh decision on the merits of Mr Chaudhary's application. Although the decision was to the same effect as earlier decisions, there was before Dr Platt new material in the form of the decision of the Specialist Training Authority sent to him by Mr Chaudhary. The employment tribunal was entitled to treat the decision in the letter as a new act which, depending on the circumstances of the case, was capable of founding the discrimination complaint brought within the period of three months.
88. We would not therefore have granted permission to the Secretary of State to argue the time limit point.

Result

89. Permission to appeal was refused on the ground that there was no real prospect of Mr Chaudhary succeeding in his appeal on his claims for race discrimination, either direct or indirect, or for victimisation.
90. The cross appeal became academic. We would, however, have refused permission for the Secretary of State to cross appeal against the decision of the employment tribunal that the claims for race discrimination were not out of time.
91. In accordance with the order, which has already been drafted and approved, the costs of the application for permission are to be paid by Mr Chaudhary, subject to the usual limitation in respect of the enforcement of a costs order against a publicly funded party.