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Cite as: [1992] UKEAT 275_90_2003

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BAILII case number: [1992] UKEAT 275_90_2003

Appeal No. EAT/275/90

EMPOLYMENT APPEAL TRIBUNAL

4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

At the Tribunal

On 20 March 1992

Before

THE HONOURABLE MR JUSTICE KNOX

MR A FERRY MBE

MR J C RAMSAY

DR G HOSNY APPELLANT

THE GENERAL MEDICAL COUNCIL RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR G MEERAN (Of Counsel)

Messrs Karim

Solicitors

Martin House

84-86 Gray's Inn Road

LONDON WC1X 8AE

For the Respondents MR A COLLINS QC

& MR T STRAKER

(Of Counsel)

Messrs Field Fisher Waterhouse

41 Vine Street

LONDON EC3N 2AA

MR JUSTICE KNOX: This is an Appeal by Dr G S Hosny from a decision of the Industrial Tribunal sitting at London South made on 23 March 1990, and which was sent to the parties on 6 April following, that the Tribunal did not have jurisdiction to adjudicate on Dr Hosny's Originating Application.

The parties have agreed that it would be convenient for us to give our decision separately on a distinct category of claims in the Notice of Appeal in favour of the decision of the Industrial Tribunal being reversed. This category of claims is that the hearing before the Industrial Tribunal on 23 March 1990 was not properly conducted and was in all the circumstances unjust. The point that is made is that there was no indication before the hearing on 23 March 1990 that any preliminary point as to jurisdiction would be taken and that the Appellant, Dr Hosny, who at that stage had no longer any legal representation, was unable to deal with the difficult questions of law which were raised on the issue of jurisdiction and it is suggested that the Tribunal should, in the circumstances, have adjourned.

It is necessary in order to form a conclusion on those claims to have regard to the background which was that there had been a previous hearing before the Industrial Tribunal at London South on 4 May 1989 when the two ways in which the case was originally presented in the Originating Application by Dr Hosny were in fact ruled against, one on the basis of its being out of time and the other on the basis that there was a defence under Section 41 of the Race Relations Act 1976. But there was leave given to amend the Originating Application to add "that the standards set for the PLAB Tests are discriminatory". That is a reference to tests which are imposed by the General Medical Council by virtue of Section 22 of the Medical Act 1983, and which Dr Hosny, who is a doctor subject to those tests which he has failed in the past, was complaining about.

That earlier decision having been given, allowing that amendment, Particulars were attempted to be given in two letters written by Dr Hosny. It is not necessary at this stage to go into the details of that but they were quite lengthy and involved, and Dr Hosny got legal representation and was represented by an experienced firm of solicitors, Karim, right down to a date only 10 days before the hearing in respect of which the present Appeal is launched, that is until 13 March when Karim wrote a letter to the GMC's solicitors, Field Fisher Waterhouse, saying:

"We write to inform you that we are no longer acting for Dr. Hosny, who will be representing himself in person at the hearing commencing 23rd March 1990."

It is accepted that an issue as to justiciability was raised by the answer that the GMC put in reply to the Particulars that were given by the two letters written by Dr Hosny which were in fact dated 22 May and 15 August 1989. In paragraph 6 of the GMC's answer the plea was raised:

"Further or in the alternative the question as to the standard as to which such tests are set is not justiciable. The Respondent relies on the provisions of the Race Relations Act 1976, the Medical Act 1983 and the impropriety of interference with tasks specifically imposed on particular bodies by Parliament."

It is accepted that that therefore was an issue on the equivalent of a pleading, but it is said that a lot of other material was in issue between the parties going to what can perhaps compendiously be described as the merits of the case.

There was, it is accepted, no application for an adjournment by Dr Hosny. The Chairman has commented, as is the practice when there is an allegation of unfair conduct of proceedings, on the claims that are made in this regard and the Chairman has said first that it appeared to the Tribunal that there was a question of its jurisdiction to hear the merits and secondly that Dr Hosny had had legal advice on many occasions and thirdly that there was assistance given to them, as one would expect and hope, by Counsel for the Respondents but that Dr Hosny appeared to have difficulty in following what the legal arguments were. The Chairman says this:

"It is quite correct when he asserts that he was out of his depth [that refers to Dr Hosny]. He was wholly incapable of grasping or even of accepting the limitation of our powers"

and the conclusion that he draws is that this emphasises once again to us the importance of representation in Tribunals in difficult cases.

The issue then before us is whether an error of law is shown in the Industrial Tribunal not granting an adjournment which was not in fact asked for. We have given careful consideration to this point and find it impossible to see how the Industrial Tribunal can be said to have committed an error of law in the conduct of the proceedings. It is not even as though Dr Hosny was a person who had not had the benefit of technical legal advice about what is a technical legal subject. He had been represented by competent solicitors until ten days previously and there was no application for an adjournment. In those circumstances it seems to us that the Industrial Tribunal might well have been adversely criticised had it insisted on an adjournment in those circumstances. However we need not explore that further because that did not happen.

We find no such breach of the rules which surround these matters to justify setting the Industrial Tribunal's decision aside on the basis that there was an unfair hearing and we therefore continue to hear the arguments on the substance of the Appeal.

We have already given the bare outlines of the nature of this Appeal in the earlier decision today to the effect that the hearing before the Industrial Tribunal on 23 March 1990 was not vitiated by the conduct of the hearing. It is necessary in order to determine the other issues in the Appeal, to go back to the earlier of the two Industrial Tribunals hearings that are in the bundle of papers before us.

This was a hearing, again at London South, on 4 May 1989 where the decision which was sent to the parties on 17 May, is summarised at the outset of the decision as being:

"that there is jurisdiction to hear the Originating Application as amended."

That combines two decisions which are in our view binding as between the parties before us, that is to say Dr Hosny on the one side and the General Medical Council on the other. The first of those two decisions was that the complaint made by Dr Hosny of direct discrimination in the way in which the PLAB examination was conducted with regard to him, was out of time under the Race Relations Act and that the jurisdiction that there is under Section 68(6) of that Act to extend time, should not in the circumstances be exercised.

The claim therefore that the way in which Dr Hosny was examined constituted direct discrimination is one which is no longer available to him.

The second matter that was disposed of by the hearing before the Industrial Tribunal on 4 May 1989 was a claim that it was discriminatory contrary to the provisions of the Race Relations Act 1976, to require him to pass a test at all and that was held to be a matter in respect of which there was an absolute defence under Section 41 of the Race Relations Act. So the imposition of a test is something which has specific statutory authority, or at any rate Dr Hosny is in no position to claim the contrary in these proceedings as between himself and the GMC.

That leaves the amendment which is effectively the only surviving point and in relation to that the Industrial Tribunal in May 1989 said this:

"However, there is a separate application by another Doctor, Doctor Gobha, before these Tribunals in which issues are being raised which are in reality very close to the issues that Dr Hosny would like to be heard, in addition to the ones we have ruled we cannot hear. Mr Straker, on behalf of the respondents,[the GMC] who have acted with great fairness throughout these proceedings, indicated to the Tribunal that if Dr Hosny made an application to amend the Originating Application they would not raise any technical point at this stage. After matters had been explained to him Dr Hosny made an application that the Originating Application be amended to add the following:

"That the standards set for the PLAB tests are discriminatory."

We allowed that amendment. That is an amendment concerned with a continuing state of affairs and Dr Hosny's application as amended is in time. The respondents will be entitled to further particulars as to why it is alleged the standards of the test are discriminatory. Therefore, on that one issue we find that the Tribunal have jurisdiction to hear Dr Hosny's application."

It is therefore to that point that the summary statement of the effect of the decision, namely that there is jurisdiction to hear the Originating Application as amended, was plainly directed.

The Originating Application thus amended was elaborated in two letters that were written by Dr Hosny on 22 May 1989 and 15 August 1989. Mr Meeran who appeared for him before us limited his reliance to the former of those two letters, accepting that nothing of importance for our purposes was added by the latter letter and I must return later to the contents of the earlier letter of 22 May 1989.

The matter came before the Industrial Tribunal in the decision from which this Appeal is brought on 23 March 1990, as has already been mentioned, and the decision at the outset again is summarised in the following phrase:

"The unanimous decision of the Tribunal is that it does not have jurisdiction to adjudicate."

The expression "does not have jurisdiction" is one which is apt to lead to confusion because it is capable of covering two, and indeed in this particular case possibly three, quite separate conceptions. One is that the application is out of time. That in our view, is not a point that was open to the General Medical Council when the matter came before the Industrial Tribunal on 23 March 1990, because there was a specific finding, as we see it, in the earlier decision of the Industrial Tribunal that Dr Hosny's application as amended was in time so that the first of the three possible aspects of absence of jurisdiction is not a matter which is concluded against Dr Hosny.

The second basis on which there may be an absence of jurisdiction is that the subject matter of the claim is one in respect of which the Respondent has a complete defence under Section 41 of the Race Relations Act 1976. That reads as follows, Sub Section (1):

"Nothing in Parts II to IV shall render unlawful any act of discrimination done

(a)in pursuance of any enactment or Order in Council; or

(b)in pursuance of any instrument made under any enactment by a Minister of the Crown; or

(c)in order to comply with any condition or requirement imposed by a Minister of the Crown (whether before or after the passing of this Act) by virtue of any enactment."

I need not read the rest of the section.

The claims that are made arise under a combination of Section 1, (1)(a) and (b) of the Race Relations Act and Section 12. Section 1 (1) reads as follows:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if

(a)on racial grounds he treats that other less favourably than he treats or would treat other persons; or

(b)he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but

(i)which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii)which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

(iii)which is to the detriment of that other because he cannot comply with it."

Those two paragraphs (a) and (b) are commonly compendiously referred to as direct and indirect discrimination.

Section 12 provides in sub-section (1):

"It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession 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."

The General Medical Council operates and indeed is constituted under the Medical Act 1983. There is a main classification in relation to medical education and registration between those dealt with in Part II of the Medical Act, persons qualifying in the United Kingdom and elsewhere in the EEC and those dealt with in Part III described as persons qualifying overseas.

It is not necessary to go into the details of that differentiation because Mr Meeran very properly accepted that the degree of discrimination involved in treating in a different way those two categories of persons was something which was specifically authorised, if indeed not required by the Medical Act 1983, and therefore on any interpretation of Section 41 was the subject of the exemption that that section confers on the GMC.

In fact there is House of Lords authority binding on this Tribunal in HAMPSON v DEPARTMENT OF EDUCATION AND SCIENCE [1990] ICR 511 on the question of the true construction of Section 41 of the Race Relations Act. The point that was before the House of Lords was limited to the question whether what was described as the narrow or the wide construction of Section 41(1) was the correct one. In fact in that case the subject matter of the Appeal fell within Section 41(1)(b) which refers to statutory instruments whereas we are concerned with an enactment in the shape of the Medical Act 1983. But nothing turns we think on the difference between paragraph (a) and (b) in Section 41(1). So that the House of Lords' decision on 41(1)(b) is equally applicable to Section 41(1)(a) which is what we are concerned with.

Those two constructions, the narrow and the wide one, were formulated in the Court of Appeal by Lord Justice Balcombe in a way which was adopted and approved by Lord Lowry. He quoted Lord Justice Balcombe at page 518 in the following terms:

"Balcombe L.J. framed the question clearly when, having summarised the respondent's point on section 41, he said at p. 185:

"This argument, which succeeded below, is incontrovertible if the words "in pursuance of any instrument" are apt in their context to include, not only acts done in necessary performance of an express obligation contained in the instrument ("the narrow construction"), but also acts done in exercise of a power or discretion conferred by the instrument ("the wide construction")."

and it is clear that the House of Lords adopting and approving what Lord Justice Balcombe said at that point espoused the narrower construction. Again Lord Lowry quoted with approval what Lord Justice Balcombe had said in the Court of Appeal at page 522 in the report of HAMPSON:

"..If what is done is not necessary to comply with a statutory requirement, then there can be no valid reason why it should not have to be justified before an industrial tribunal."

so that the narrow construction is the one which we must apply.

It is obviously no criticism of the Industrial Tribunal from whom we hear the Appeal today and which sat in March 1990, that they did not give effect to the speech of Lord Lowry which was only delivered on 7 June 1990, although by a curious coincidence, the argument had in fact been conducted before their Lordships House in HAMPSON before the hearing in the Industrial Tribunal but the speeches had not yet been delivered.

That brings me back to the second meaning of jurisdiction, namely that there is potentially a defence under Section 41 and in our view the effect of the HAMPSON decision is to limit radically the extent to which the GMC is entitled to rely on Section 41 as indicating an absence of jurisdiction in the Industrial Tribunal.

In particular, it means that the view expressed by the Industrial Tribunal from whom we hear this appeal following what the Industrial Tribunal had said in the GOBA case, to which I must come in a moment, that all cases of indirect discrimination were protected by Section 41 if there was a condition or requirement imposed by a body acting pursuant to powers granted by a statute is much too wide and cannot stand in the light of the HAMPSON decision.

Where Section 41 is relevant, and this was not the subject of significant argument before us, is in the way which I have already alluded to, namely that discrimination as between the persons covered by Part II of the Medical Act 1983 on the one hand and persons covered by Part III of that Act on the other is perfectly lawful because it is specifically provided for, if not required, by that latter Act. But that is the extent to which Section 41 in our view provides a defence to the General Medical Council.

That takes me to the third possible meaning of jurisdiction in the context of this decision and that is that however the application is put and whatever the evidence might turn out factually to be, on the basis of the allegations particularised by Dr Hosny's letters, and in particular the one of 22 May 1989, there is no way in which he could succeed in establishing discrimination which is unlawful under the Race Relations Act 1976.

Although that is described in the beginning of the Industrial Tribunal's decision as a jurisdictional point, it is perhaps somewhat unusual to describe it as one going to jurisdiction. It is one which goes to the question of whether the case can, on any view, possibly succeed, which is traditionally regarded as a somewhat different question from absence of jurisdiction. However, the end result is exactly the same. If an action or an application has no prospect of success whatever, it is not right or in the interests of anybody concerned with it for it to proceed further. Whether or not that is properly described as a matter of jurisdiction is a matter of language rather than substance.

The Industrial Tribunal dealt with this aspect of the matter by considering the various ways in which the case might perhaps be put and having said in paragraph 12 of their decision that there was binding authority that so far as indirect discrimination was concerned the GMC had statutory immunity, which as we have already indicated is no longer a tenable proposition, they went on as follows:

"Even if they had not, this claim must fail because section 3(4) [that is of the Race Relations Act] provides:

"A comparison of the case of a person of a particular racial group with that of a person not of that group under s.1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

They then identify the potential possible different groups saying:

"Indigenously trained doctors (of whatever colour or ethnic group) and those who have trained at other specified foreign hospitals and institutions do not have to take the P.L.A.B. test; all other expatriate doctors (of any colour or ethnic group) who have qualified at certain foreign universities or teaching establishments are required to do so."

That is a reference to what is actually required in Part III of persons who find themselves in the same position as Dr Hosny in this case. Section 22 of the Medical Act says this:

(1) Subject to sections 23(5) and 24 below, where a person has satisfied the Registrar

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

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

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

(d)that he is of good character; and

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

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

and there is a time limit on that limited registration of 5 years under sub-section (3) of that section. The term "an acceptable overseas qualification" is defined by sub-section (4) as meaning:

"any qualification granted outside the United Kingdom and for the time being accepted by the General Council for the purposes of this section as furnishing a sufficient guarantee of the possession of the knowledge and skill requisite for the practice of medicine under the supervision of a person who is registered as a fully registered medical practitioner."

The expression "the necessary knowledge of English" is defined in Section 55 as

"the knowledge which, in the interests of himself and his patients, is necessary for the practice of medicine in the United Kingdom."

It was submitted to us that the operation of Section 41 was limited to the matters that are required by the Section 22 that I have read and to the extent to which discretions were thereby conferred on the General Medical Council or on the Registrar, the exercises of that discretion were not the subject of the blanket defence under Section 41 of the Race Relations Act.

There are two decisions to which we should refer. The first one is GENERAL MEDICAL COUNCIL v GOBA which it will be recalled was the one that was on foot when the matter first came before this Industrial Tribunal. That case went to this Tribunal, the Employment Appeal Tribunal, and is reported there in 1988 ICR 885. It concerned an applicant from Sierra Leone who held overseas medical qualifications and who sought limited registration in England under the provisions which I have read of Section 22 (1) of the 1983 Medical Act. He failed on numerous occasions and complained of direct discrimination in relation to his failure. The allegation that he made is quoted at page 888 in the following terms:

"I believe that my failure, and the treatment of the G.M.C. towards me, constitute a breach of the Race Relations Act 1976 in that it was motivated by racial discrimination in contravention of that Act. I hope to prove, by documented evidence and by the calling of professional witnesses, that discrimination has taken place, that it is discrimination of a racial nature, and was the sole reason for my failure."

The question that the Employment Appeal Tribunal addressed was very similar to that in HAMPSON namely the proper construction of Section 41, but unlike this case it was concerned solely with direct discrimination which was what was claimed by Dr Goba in that case, and in that context Mr Justice Wood in a decision to which favourable reference was made by Lord Lowry at page 523 of the HAMPSON decision concluded

"that the true construction of Section 41 for that purpose was that the Act complained of to be the subject of protection under Section 41 had to be reasonably necessary in order to comply with a requirement of the statute [the Act of 1983].

So that with the possible alteration, if it is an alteration of the inclusion of the word "reasonably" the same test was adopted in GOBA as was laid down subsequently in the House of Lords in HAMPSON. There is a useful summary in Mr Justice Wood's decision in GOBA at page 887 of the way in which the GMC seeks to satisfy the duties that are laid upon it by Section 22. He said:

"In conjunction with other professional bodies the G.M.C. have set up a board for the purposes of testing the professional and linguistic abilities of applicants for limited registration. This is known as the Professional and Linguistic Assessments Board (P.L.A.B.). The tests consist of six parts: part i: a multiple choice questions examination to test factual professional knowledge in each of the main branches of medicine; part ii: a medical short answer examination to test professional knowledge in a variety of clinical situations; part iii: a projected material examination to assess clinical knowledge and management in each of the main branches of medicine; part iv: a tape-recorded examination of comprehension of spoken English; part v: a written English examination to assess ability to understand written English and to write clearly and distinctly in English; part vi: an oral examination to assess ability to converse in English and to apply professional knowledge to medical problems. These tests are conducted at various centres around the country at approximately monthly intervals."

The other authority to which we should refer is DHATT v McDONALDS HAMBURGERS LTD [1991] ICR 238 which concerns the true construction and operation of Section 3(4) which I have quoted from the Industrial Tribunal's decision and need not repeat. In that case there was an applicant of Indian nationality who was in fact entitled to live and work in the United Kingdom without restriction or need for a work permit and on applying for a job to the Respondents, was required to complete an application form which demanded an answer to the question "Do you have a work permit?". It was that question that was claimed to constitute unlawful direct discrimination against him in that he had been treated less favourably than EEC Nationals.

The matter went to the Court of Appeal which upheld the decision of the Employment Appeal Tribunal which in turn upheld the Industrial Tribunal. The Court of Appeal held that to ascertain whether an applicant had been unlawfully discriminated against within the meaning of Section 1(1)(a) of the Race Relations Act, Section 3(4) required a comparison to be made between his circumstances and the circumstances of those identified as proper comparators and that Parliament by giving a right of freedom to work in the United Kingdom to British and EEC citizens, had distinguished between them and nationals of other states so that a comparison between the applicant and these groups was not a comparison of like with like for the purposes of Section 3(4) but the proper comparison was between the applicant and others who were neither British nor EEC citizens and that as all such others required either a work permit or indefinite leave to enter the United Kingdom, they were all treated alike by the employer's questionnaire so that they had not been unlawfully discriminated against by the Respondents.

Lord Justice Neill at page 246 said this in distinguishing the House of Lords' decision in JAMES v EASTLEIGH BOROUGH COUNCIL [1990] ICR 554:

"It was the council which stipulated that to be eligible for free admission to the swimming pool the entrant had to have reached pensionable age. Lord Bridge therefore regarded the council's test of "pensionable age" as no more than "a convenient shorthand expression which refers to the age of 60 in a woman and the age of 65 in a man," and concluded, at p.566:

"In considering whether there has been discrimination against a man "on the ground of his sex" it cannot possibly make any difference whether the alleged discriminator uses the shorthand expression or spells out its full meaning.

It seems to me, however, that the position would have been different if Parliament itself had enacted that concessions granted by local authorities on the ground of age should depend on the attainment of pensionable age. In that event the discrimination against the plaintiff could properly be regarded as being based not on his sex but on his lack of pensionable status. The qualifying criterion would have been laid down by Parliament and the question whether someone had or lacked pensionable status would have been a relevant circumstance within section 5(3) of the Act of 1975. [That of course was the Sex Discrimination Act with which the Eastleigh case was concerned.]

How then is the decision in the Eastleigh case to be applied in the present case? It seems to me to be important to underline that the alleged discrimination related to the applicant's right to work. It is not a case where the alleged discrimination concerned, for example, his use of any facilities at the work place or his prospects for promotion. It is therefore necessary to consider whether there is a distinction relating to the right to obtain employment in the United Kingdom which Parliament recognises and seeks to enforce between British citizens and E.E.C. nationals on the one hand and nationals of other states on the other hand."

[He went on to find that there was such a distinction.]

It was submitted to us that if one adapts the reference to the right to obtain employment in that passage in Lord Justice Neill's judgment, to the right to be registered as a practitioner by limited registration under Section 22 of the Medical Act 1983, the observations and indeed the decision in the Court of Appeal in DHATT is directly analogous and therefore applicable to the present case.

The Race Relations Act does, we consider, require an identification of a group of persons of whom the applicant forms one, as compared with another group, whereby a process of a discrimination which is outlawed by the Race Relations Act can be established and to judge to see whether it is possible for there to be any such case made out in the present case it is, we think, inevitable to look and see what really it was that Dr Hosny was complaining of. That is easier said than done because unfortunately the way in which the case has been formulated by him is infected by what he can hardly be blamed for, namely his unfamiliarity with the processes of the law and to some extent, and this is not a relevant knowledge of English as the phrase is defined by the Medical Act of 1983, a fairly apparent difficulty with some aspects at least of the English language. But doing the best we can it is, we think possible to identify the thrust of his complaints from the second part of his letter of 22 May 1989 which reads as follows. It is all under the heading the "PLAB Test":

"1. It is not a medical degree or qualification but as a sort of work permit or job interview; yet involves all different medical branches in such a way not comparable with any other test including the American visa qualification exam.

2. While the GMC refuse to declare the total results; it is assumed that only 10% pass the test every time which is a clear indication of the extent of unfairness especially if we put in consideration that only the best doctors who dare to apply and waste £250 in fees.

3. It does not compare our standards with those of similar qualification and graduated here but almost compare us with consultants specialised in every branch of medicine whom we could not match in their field alone especially if we consider how many branches and sub-branches involved in practice which nobody could completely master .........

4. It is conducted [this is the test of course] by consultants whom have no educational training in how to assess the extent of information the student may have at a certian [sic] level ........

5. The time limits involved in every aspect of the test is such [it should be so] short not to give any chance of thinking or review the answers which increase the margin of errors and intentially used to change the test into race against time..

6.Every doctor on his initial qualification has limited knowledge in different branches of medicine which allow him to deal with major and common cases involved in routine daily life and supervised by more experience doctors whom are avilable [sic] for advice and handle any difficult case ..... While our final exams deals with every subject separetly so either we pass all parts of exam or fails a single branch or even two which make us concentrate on those we already fails only when we resit the test on those we fails only ..... All this is in contrast with the PLAB test which mix all subjects together to pass or fail; .......

7.It creates such mistrust which makes me suspicious of the catch behind any question; while the more you study make more gray areas than the ordinary simple black and white on graduation while over 90% of diseases without definite treatment and only few could be early diagnosed with all sorts of interactions and relations. If all this added to the specially chosen to be highly contraversial projector slides in what so called clinical part of the test which denies the basic principle of seeing the patient and get few answers from him in addition to our clinical sense to reach a conclusion while those slides chosen intentionally chosen to rise more questions and enough to say that during the last test we were 3 doctors standing together and we could not agree on more than nearly 5 slides out of twenty...

8.All this made most overseas doctors recognise that the PLAB test is not in any way a medical assessment intended to safeguard againest misconduct but it is deblitery designed to fail and exclude as much as possible of us to fullfil hidden discrimination policy from those who hate our qualifications because it is beyond their reach and those creators and supportors of south Africa and lastely those in the medical profession whom wants to maintain certian monoply and affraid of our challange and hard work will expose them and put an end for such close shop practice which is discriminative."

Analysing that as best we may. it raises a variety of criticisms of the PLAB test and suggests that the test may be too strict and that it may have some features which are unfair to persons in Dr Hosny's position.

We of course are not concerned with any question of justification and we do not address that aspect of the matter at all. Indeed it was not addressed before the Industrial Tribunal. What we are concerned with is the question whether one can discern in Dr Hosny's complaint, any material that is susceptible of leading to the conclusion that there could be indirect discrimination in the setting of the standard and the choosing of the techniques used in the PLAB test. We exclude direct discrimination because that is one of the matters which was finally disposed of so far as these parties are concerned, by the first decision of the Industrial Tribunal and the case is therefore limited to the indirect discrimination possibility.

The Industrial Tribunal in the decision that is under appeal, came to the conclusion that such a claim could not succeed. I have already read part of their conclusion on that score in paragraph 12 where they said that the indirect discrimination claim must fail because of Section 3(4) and they referred to the decision in DHATT which at that stage had only reached the Employment Appeal Tribunal.

We have had argument before us to see whether there can be identified any basis upon which there could be evidence adduced by or on behalf of Dr Hosny which would support a claim of unlawful discrimination indirectly in the context of the particulars that he has given of his complaint.

It was submitted to us, and we accept, that the evidence was not gone into before the Industrial Tribunal in any sort of detail at all and Dr Hosny did not call the evidence which we are told, and we accept, he was preparing to call in relation to the PLAB test. There was some evidence before the Industrial Tribunal and in particular there was a report which had been compiled in relation to the working of the PLAB test by a distinguished working party. The only significance of that it was suggested before us was that there was some indication that at one stage the percentage pass rate of candidates from, inter alia, Egypt, Dr Hosny's country, had risen between 1983 and 1984 but that in our view is not of any direct significance to what we have to decide which is whether the case can possibly on any assumed amount of evidence, succeed.

It does also we think indicate what are the possibilities of pass and failure that are realistic and we deliberately include both pass and failure in that the rates over the years have fluctuated but have never reached anything remotely approaching 100% passes or at the other end of the scale, anything remotely approaching 0% and to that extent it seems to us that we must approach this question in a realistic way and not assume that there is likely to be either 100% success or 100% failure in any given statistically significant group of candidates. Obviously if one chooses a small enough group of candidates one might well get 100% in either direction but that would not be statistically significant.

We have sought vainly to find the possibility of any evidence that came within the particulars given by Dr Hosny that could lead to there being an effective and valid claim of indirect discrimination in relation to either the setting of the standard or the choice of techniques, for example slides or interviews for the standard and its application. As regards the setting of the standard it seems to us inevitable that, it being the fact, which is not contested by Dr Hosny, that everyone who falls within Part III of the Medical Act 1983 is subjected to the same PLAB test, a raising or a lowering of the standard would equally affect the proportion of passes or failures in any ethnic or national group that one cared to select. It is of course possible that, particularly with relatively small numbers, the incidence of success or failure might vary a little between different groups as a result of any given raising or lowering of the standard.

But disregarding that aspect, which seems to us merely to be a function of the relatively small numbers involved, thus leading to some difficulty in making firm statistical deductions, the variation in the pass or failure rate will be a constant as between any groups that one cares to select, be they Egyptian candidates as Dr Hosny is, or candidates from any other nation that is within the ambit of Part III of the Medical Act 1983.

Similar considerations seem to us to apply in relation to the selection of any particular type of examination process, be it the use of slides or viva voce interview. We see no possibility on the basis of the allegations made by Dr Hosny of there being any significant discriminatory treatment between different categories, however selected, within the major group of those within the ambit of Part III of the Medical Act 1983 and once one reaches that conclusion it does seem to us that it is indeed not possible for this claim in respect of indirect discrimination in setting the standard or choosing the techniques for applying the PLAB Test to succeed in showing unlawful discrimination by the GMC.

It is not of course our function, or indeed that of the Industrial Tribunal, to express any views about the level at which the standard should properly be set. That is something which depends on the true construction of the Medical Act 1983 and the ambit of the discretion which is undoubtedly vested in the General Medical Council. That is not a matter with which we are concerned with because that is a matter of compliance with the Medical Act 1983. We are only concerned with any possible process of discrimination and satisfied as we are that the case cannot succeed on that score, we see no alternative but to dismiss this Appeal.