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Cite as: [1993] UKEAT 176_91_2805

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BAILII case number: [1993] UKEAT 176_91_2805

Appeal No. EAT/176/91, EAT/176/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17th March 1993 & 7th May 1993

Judgment delivered on 28th May 1993

Before

THE HONOURABLE MR JUSTICE WOOD MC (PRESIDENT)

MISS A MADDOCKS OBE

MR R H PHIPPS

EALING, HAMMERSMITH & HOUNSLOW FAMILY HEALTH SERVICES AUTHORITY APPELLANTS

DR SHUKLA RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants Mr Christopher Jeans

(of Counsel)

Messrs Field Fisher Waterhouse

Solicitors

41 Vine Street

LONDON EC3N 2AA

For the Respondent Miss C Booth

(of Counsel)

British Medical Association

BMA House

Tavistock Square

LONDON WC1H 9JP

MR JUSTICE WOOD (PRESIDENT) By an Originating Application dated 26th July 1990, the Applicant, Dr Shukla, who is supported by the British Medical Association (BMA) alleged that he was the victim of sex discrimination under S.6(1)(a) of the Sex Discrimination Act 1975, at the hands of the Ealing Hammersmith & Hounslow Family Health Services Authority (FHSA) - formerly known as the Family Practitioner Committee (FPC) - and the Medical Practices Committee (MPC). The allegation centred on his failure to succeed to an advertised vacancy in a General Practice in Hammersmith, West London. By agreement MPC was dismissed from the proceedings on 9th January 1991.

On 10th January a preliminary issue arose on jurisdiction and an Industrial Tribunal sitting at London (South) under the Chairmanship of Mr Bassingthwaite decided that it had jurisdiction to hear his case. It ordered a preliminary assessment of the complaint under Rule 6(1) of the Industrial Tribunal (Rules of Procedure) Regulations 1985. This is the exceptional procedure under which a Tribunal may decide that the claim has "no reasonable prospect of success" and may give a warning as to costs.

However, whatever the merits of this claim and its likelihood of success, both sides treat it as a matter of important principle and of wide interest.

The FHSA appeals on that preliminary issue.

No oral evidence was heard. A substantial bundle of documents was before the Tribunal. Arguments were addressed on an agreed basis of facts, which were that the Applicant is a qualified doctor. He is "listed" in the sense that he appears as one of those doctors accepted as competent to engage in general practice by the MPC. He had been associated with a General Practice in Hammersmith since November 1988 and had first undergone training there with a sole practitioner, Dr Levere. He became an Assistant General Practitioner in November 1989. Since January 1990, when Dr Levere withdrew from the practice, the Applicant had practised from the same premises as a "locum", pending the appointment by MPC of a General Practitioner to the practice.

He applied to be considered for that appointment when it was formally advertised. He was not the only applicant. Sixteen other doctors applied and six (of whom Dr Shukla was one) were interviewed. He was interviewed with all the other short-listed applicants by a committee of the FHSA. Their recommendations were passed to the MPC who adopted them. The MPC then appointed those two doctors, a man and a woman whom the Committee had recommended should jointly be appointed to the vacant practice. Dr Shukla had been placed second.

Dr Shukla appealed to the Secretary of State for Health against that decision, but his appeal was refused.

We would only add that the grounds of appeal to the Secretary of State did not include any allegation of discrimination.

The statutory right of appeal against the decision of the MPC is given under the National Health Service (General Medical and Pharmaceutical Services) Regulations 1974 (S.I.1974 No.160), thus S.63(2) of the Sex Discrimination Act 1975 (the 1975 Act) precludes the bringing of proceedings by Dr Shukla under S.13 of that Act.

It is for this reason that he relies on S.6(1)(a). This reads:

"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman (a man) -

(a) in the arrangements he makes for the purpose of determining who should be offered that employment ..."

The allegation is one of direct discrimination under S.1(1)(a) of the Act.

"Employment" is defined in S.82(1) as "employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly".

It is common ground that the relevant wording for our present purposes is "a contract personally to execute any work or labour". The issues, therefore, which arise in this case are:

(1)Was there a contract between Dr Shukla and FHSA?

(2)If so, was it "a contract personally to execute any work or labour"?

(3)What are the "arrangements" complained of under S.6(1)(a), and were they made by FHSA under the provisions of that subsection?

The definition of "employment" in S.82(1) of the 1975 Act is identical with that in S.78(1) of the Race Relations Act 1976 (the 1976 Act).

At the time when this Industrial Tribunal was reaching its decision, two cases were cited as relevant.

Wadi v. Cornwall & Isles of Scilly Family Practitioner Committee [1985] ICR 492- EAT and,

Roy v. Kensington, Chelsea & Westminster Family Practitioner Committee [1990] 1 Med LR 328. CA

Wadi concerned an allegation of racial discrimination, but the principles to be applied were the same as the present and this Industrial Tribunal found the facts to be identical. We agree. It also seems to us clear from the first sentence of paragraph 11 of the Decision that, left to themselves, this Tribunal would have been content to agree with and to follow the reasoning in that case. It was an EAT decision given by Peter Gibson J (as he then was).

However, the Tribunal felt constrained to follow the decision in Roy in the Court of Appeal, where in somewhat similar conditions it had been held that a contract did exist between Dr Roy and the FHSA (FPC).

That case preceded to the House of Lords, who upheld Dr Roy's right to bring a claim, based on a private law right, for remuneration against the FHSA, but on different grounds from those found by the Court of Appeal.

What therefore is the present position?

The background is carefully set out by Peter Gibson J in Wadi, and we will keep our references as short as we reasonably can.

The Secretary of State for Health is under a duty to provide a comprehensive health service to include medical services - National Health Service Act 1977, Ss 1 and 3. She has a number of statutory duties including the establishment of Regional and District Health Authorities and within those authorities of the FHSA (S.10).

It is the duty of the FHSA (S.15(1)) in accordance with Regulations to administer the arrangements made in pursuance of the Act for the provision of general medical services and to perform such management or other functions relating to those services as may be required. In particular it is the duty of FHSA - "In accordance with Regulations, to arrange as respects their locality with medical practitioners to provide medical services for all persons in the locality who wish to take advantage of the arrangements." (S.29). This includes the preparation and publication of lists of medical practitioners (Medical Lists) who undertake to provide general medical services (S.29(2)(a)). The remainder of S.29(2) and subsections (3) and (4) provide for Regulations to cover details of the general medical service.

When vacancies occur in the Medical List, or where a medical practitioner wishes to be added to the list, he or she may apply. All such applications must be referred by FHSA to the MPC. This Committee is established by the Secretary of State (S.7 of the Act) and is a "national committee" dealing with applications from Authorities throughout the country. Sections 31, 32 (by Regulations) and S.33 provide guidance to the MPC in reaching its decision and making its selection. Section 34 provides for the making of Regulations (inter alia) governing the procedure before MPCs.

The relevant Regulations are those of 1974 referred to above. Regulation 4 requires the FHSA to prepare and maintain the Medical List. Regulation 7 requires the FHSA upon receipt of an application to send it forthwith to the MPC, together with such report as may be specified by that Committee. That report will no doubt contain advice and must be considered by the MPC. The decision to select vests in the MPC alone; it informs the FHSA and the Secretary of State (Regulation 11(3)).

As we have said, a medical practitioner has the right of appeal to the Secretary of State against the refusal by the MPC of an application to be placed on the list (Regulation 12).

The FHSA will place the name of a medical practitioner on the list in accordance with the decision of the MPC.

Payments to those doctors on the Medical List are made by the Secretary of State through the FHSA. Regulation 24 reads in its relevant part:

"(i)For each financial year the Committee shall cause payments to be made to doctors with whom arrangements for the provision of general medical services in its locality in accordance with such rates and subject to such conditions as the Secretary of State may determine after consultation with such organisation as he may recognise as representing doctors with whom arrangements for the provisions of general medical services and published in a statement. ..."

The terms of service of the doctors on the Medical List are those made under Regulation 3 and set out in Schedule 1. They are extensive and detailed. They are not the subject of individual negotiation. For our present purposes it is sufficient to note that they cover almost every aspect of medical practice.

In particular, a doctor is responsible "for ensuring the provision to his patients of services ... throughout each day during which his name is included" on the Medical List (paragraph 15(1), and that it shall be by treatment personally given, unless reasonable steps are taken to ensure continuity of treatment, which may be given by a deputy or an authorised delegate of the doctor. (Paragraph 16(2)). If such an arrangement is deemed to be a regular one, the doctor shall inform the FHSA (Paragraph 18). Paragraph 22 limits the fees which a doctor is entitled to accept.

This Industrial Tribunal decided that it was bound by the case of Roy in the Court of Appeal. Dr Roy had issued a writ in the Queen's Bench division claiming against his Family Practitioner's Committee (now FHSA) some expenses of employing ancilliary staff and also that part of his basic practice allowance which had been withheld from him. He recovered judgment in respect of the former. The FPC sought by summons to strike out the latter claim, alleging that he was seeking to exercise a purely public law right by writ in the ordinary court, instead of proceeding by judicial review.

Before HHJ White the FPC succeeded. The basis of that success is important to note. The learned Judge found, "contractual echos" in the relationship, but considered those echos to be deceptive. The rights and duties within the scheme stemmed from and were entirely dependent on statute and regulation, and were not dependent on a contractual relationship. However, he then proceeded [1989] 1 Med. LR 10, 12:

"The rights and duties are less real or effective for the individual practitioner. Private law rights flow from statutory provisions and are enforceable, as such, in the courts but no contractual relations come into existence. The decision I make upon the application is nevertheless is not dependent on this finding, for, whether or not the plaintiff's rights to full payments under the scheme are contractually based, I accept that the duty which the Committee discharges, when establishing for the purposes of the practitioner's eligibility whether or not he is devoting a substantial amount of time to general practice under the National Health Service, is a public law duty; the function is a public law function."

He therefore struck out the statement of claim as an abuse of process, because Dr Roy's remedy should have been by judicial review.

In the Court of Appeal, the issue whether Dr Roy's private rights were based in contract were raised as the first issue. As Balcombe LJ said:

"In answer to his first question, the judge decided that there was no contractual relationship between Dr Roy and the committee. We were told by Mr Greening, who appeared for the committee before us as well as below, that this was not a point which he had pressed before the judge and, although he was unable to make any concession on the point, he did not feel able to make any submissions to support the judge's finding on this issue. However, the judge made it clear that the decision which he made upon the application was not dependent on that finding ..."

In a later passage the learned Lord Justice said this:

"If the relationship were not contractual it is difficult to see what else it could be. It has not been suggested that medical practitioners in the National Health Service hold any public office. Indeed, were it not for the fact that the learned judge found that there was no contractual relationship I would have thought that the point was almost unarguable. ..."

Both Lord Justice Balcombe and Lord Justice Neill found support for this view in R v. East Berkshire Health Authority, ex parte Walsh [1985] QC 152. That however was a case of an employee under a contract of service and the value of Walsh was doubted by Lord Lowry in the House of Lords - p.649E.

Argument before us centered, in particular, upon the issue whether the decision in the Court of Appeal was, in effect, overruled by the House of Lords or whether it stands and the ratio is binding upon us. We have decided that the ratio in the Court of Appeal in Roy, that a contract existed, no longer stands. First, if the House of Lords had accepted that the proposition was soundly based, there was no need for the extensive review of the law which it undertook. Secondly, Wadi had not been cited to the Court of Appeal, and the House of Lords referred to it extensively and with approval. Thirdly, the House of Lords decided that Walsh had not decided the issue. Fourthly, Lord Bridge of Harwich states at p.630D:

"I do not think the issue in the appeal turns on whether the doctor provides services pursuant to a contract with a Family Practitioner Committee. I doubt if he does and I am content to assume that there is no contract. Nevertheless, the terms which govern the obligations of the doctor on the one hand, as to the services he is to provide, and of the Family Practitioner Committee on the other hand, as to the payments which it is required to make to the doctor, are all prescribed in the relevant legislation and it seems to me that the statutory terms are just as effective as they would be if they were contractual to confer upon the doctor an enforceable right in private law to receive the remuneration which the terms entitle him."

Lord Emslie, Lord Griffiths and Lord Oliver of Aylmerton agree and Lord Lowry at p.649D-E states:

"I have already referred to the judgment of the Court of Appeal ..., which concluded that there was a contract of services between Dr Roy and the Committee and that it was therefore in order for Dr Roy to sue the Committee for a declaration of his rights and an order for payment. ... I cannot altogether accept the reasoning which led the members of the Court of Appeal to conclude that there was a contract, because, although there may well have been a contract for services, I am not satisfied that there was."

We ourselves would respectfully add some comments. First, since the relationship of general practitioners with the FHSA is based on statutory provisions, there is no need to seek to explain it in contractual terms. The sources of the obligations are statutory. Secondly, the relationship does not sound in the contractual concepts of offer and acceptance; we doubt whether consideration can be spelt out. Thirdly, the appointing body was MPC not FHSA. Fourthly, the obligations arising do not arise out of a bargaining process between the parties. Fifthly, such discretion as is available to FHSA is subject to appeal to the Secretary of State, who is in fact the arbiter. Sixthly, the situation is distinguishable from those instances where a contract exists and statutory terms are to be implied into it. Hospital doctors, nurses and ancillary staff are employees under contracts of service.

We accept and are content to follow the reasoning of Peter Gibson J and the members of this Tribunal in Wadi where at p.498C he says:

"In summary, our view is that under the statutory arrangements the doctor on the one side and each of the Family Practitioner Committee and the Medical Committee on the other have rights and obligations conferred by statute rather than by contract. It is not necessary and we think it wrong to seek to import a contract into a scheme of things which is governed by the very detailed statutory arrangements made by neither the Family Practitioner Committee nor the Medical Committee."

Miss Booth makes the general point that if no contractual basis exists general practitioners as a group, as self-employed, are deprived of the benefit of making allegations of discrimination to Industrial Tribunals under the Acts of 1975 or 1976.

The remedy on facts similar to those in the present case, is by way of appeal to the Secretary of State during which allegations of discrimination can be made. Such procedure undoubtedly has some limitations. See - R v. Department of Health ex parte Gandhi [1991] ICR 805, Div. Ct. The legislation, however, seems to be quite clear. See S.63(2) of the 1975 Act and S.54(2) of the 1976 Act.

Mr Jeans has also drawn our attention to the history of the interpretation sections in these Acts. At the time they were being drafted, the main Act in employment law was the Trade Union and Labour Relations Act 1974. In S.30 - the interpretation section - definitions are to be found of "employee", "employer", and "worker". By the wording of S.30(2), General Practitioners (those providing general medical services) were expressly included in the definition of "worker" as were dentists and some others. This indicates that in the absence of such express inclusion the legislature considered they would be outside the definition of "worker", parts of which definition are to be found in the definition of "employment" in S.82(2) of the 1975 Act. He further submits that his argument is re-enforced by the wording of Ss.279, 295 and 196 of the Trade Union Law Reform (Consolidation) Act 1992.

We accept that his submissions have force.

Two further issues remain. First, Mr Jeans submits that even if a contract were found to exist then it was not "personally to execute any work or labour". He relies upon Tanna v. Post Office [1981] ICR 374; and Mirror Group Newspaper Ltd v. Gunning [1986] ICR 144. In the latter case at p.151B Lord Justice Oliver says this:

"... In my judgment, what is contemplated by the legislature in this extended definition is a contract the dominant purpose of which is the execution of personal work or labour, ..."

Pausing there, it seems to us that the dominant purpose under the present arrangements would be for the General Practitioner to provide personal work or labour, but the learned Lord Justice goes on at C to say

"... There was not, in my judgment, any material upon which the tribunal could properly conclude that there was any term of the contract between the newspaper group and Mr Stark which obliged the latter personally to engage in the operation of the distributorship agreement, although no doubt the expectation was that he would do so. ..."

Mr Jeans has submitted that a detailed analysis of the Regulations and terms of service does not disclose a requirement for a doctor to do any work at all. We are not impressed by this argument, but it is unnecessary for us on the present occasion to give a decision upon it. Looking at the matter in general, we would have thought that the dominant purpose of the arrangement is the execution of personal work or labour.

The last point concerns the proper interpretation to be given to S.6(1)(a) of the 1975 Act. For convenience we repeat it:

6(1) - It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman -

(a)in the arrangements he makes for the purpose of determining who should be offered that employment, ..."

The relevant wording for this issue is "the arrangements he makes". We are not satisfied that it was the FHSA which was making those arrangements. This was a statutory procedure laid down, and in our judgement such a statutory arrangement, which is fixed, is not one made by the employer. We take the view, therefore, that paragraph 6(1)(a) would not be satisfied by the present statutory arrangements.

For the reasons we have given, this appeal must be allowed and a declaration substituted that the Industrial Tribunal had no jurisdiction to hear this application.