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Cite as: [1993] UKEAT 366_92_1802

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BAILII case number: [1993] UKEAT 366_92_1802

Appeal No. EAT/366/92

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 February 1993

Judgment delivered 18 March 1993

Before

THE HONOURABLE MR JUSTICE MAY

MR D G DAVIES

MISS C HOLROYD

DR M KHAN APPELLANT

GENERAL MEDICAL COUNCIL RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR T KIBLING

(OF COUNSEL)

Pictons

1 The Waterhouse

Hemel Hempstead

HP1 1ES

For the Respondents MR T STRAKER

(OF COUNSEL)

Field Fisher Waterhouse

41 Vine Street

LONDON EC3N 2AA

MR JUSTICE MAY; This is an appeal by Dr Khan against the decision of the Industrial Tribunal held at London South after a hearing on 30th March 1992, the unanimous decision being sent to the parties on 15th April 1992.

By Originating Application dated and received on 3rd July 1990, Dr Khan complained of "racial discrimination contrary to section 1(b) [sc. section 1(1)(b)] of the Race Relations Act 1976." The hearing before the Industrial Tribunal was to determine two preliminary issues, viz:

(1)whether, having regard to the provisions of section 54(2) of the Race Relations Act 1976, a tribunal has jurisdiction to entertain this claim; and

(2)whether having regard to the provisions of section 41(1) of the Race Relations Act 1976 and the provisions of the Medical Act 1983 a tribunal has jurisdiction to entertain this claim.

Dr Khan is of Asian origin. He qualified as a doctor (M.B.,B.S) in Pakistan in 1976 or 1977. He came to the United Kingdom in 1980 and passed the examination of the Professional and Linguistic Assessments Board in 1981. He satisfied the Registrar of the General Medical Council that he fulfilled the conditions specified in what is now section 22 of the Medical Act 1983 and was registered as a Medical Practitioner with limited registration for the maximum period allowable by law, namely 5 years. He applied for full registration pursuant to section 25 of the 1983 Act in November 1985 but his application was unsuccessful. He applied to the Review Board for Overseas Qualified Practitioners pursuant to section 29 of the 1983 Act for a review of the Council's decision but his appeal was not upheld. In December 1988 he again applied for full registration and his application was again unsuccessful. He applied a second time to the Review Board for a review of the Council's decision but his appeal was again not upheld.

By his Originating Application Dr Khan complained that he was the victim of indirect discrimination. He said in his application that "the requirements for full registration adversely affect Asian/Black Overseas Doctors in comparison to White Graduates from the UK and EEC countries". He further alleged that the requirements for determining applications to proceed from limited to full registration as applied by the Review Board were to his detriment and were not justifiable on non-racial grounds.

Section 1(1) of the 1976 Act provides:

"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."

The provision of the Race Relations Act 1976 Act by which the discrimination alleged by Dr Khan is made unlawful is section 12, which is in Part II of the Act. Section 12 provides as follows:-

"(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."

Section 54 of the 1976 Act provides:

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

(a)has committed an act of discrimination against the complainant which is unlawful by virtue of part II; or

(b)...

may be presented to an industrial tribunal.

(2) Subsection (1) does not apply to a complaint under section 12(1) of an act in respect of which an appeal, or proceedings in the nature of an appeal, may be brought under any enactment, or to a complaint to which section 75(8) applies."

Section 75(8) applies to a complainant who, at the time the act complained of was done, was serving in the armed forces and where the discrimination in question relates to his service in those forces. Section 75(9) further excludes from the operation of section 54(1) a complaint to which section 75(8) applies, but provides that such a complaint may be dealt with under statutory procedures relating to the armed forces including section 181 of the Army Act 1955.

The first preliminary issue which the Industrial Tribunal had to decide boiled down to the question whether a review under section 29 of the Medical Act 1983 was "an appeal, or proceedings in the nature of an appeal." If it was, by section 54(2) of the 1976 Act the Industrial Tribunal had no jurisdiction to hear Dr Khan's complaint. If it was not they did. The Industrial Tribunal expressed their decision as follows:

"We hold that the right conferred on a person by section 29 of the Medical Act 1983 to apply to the Review Board for a decision of the General Medical Council to be reviewed by the Review Board, though not an appeal in the strict sense, is nevertheless a proceeding "in the nature of an appeal" for the purposes of section 54(2) of the 1976 Act. It follows that section 54(1) does not entitle the applicant to present a complaint under section 12(1)."

On these grounds they unanimously dismissed Dr Khan's application. Beyond reciting section 25 of the 1983 Act in full and in part but at length from section 29, the Tribunal gave no more extended reasons for their decision than in the passage which we have just quoted.

Section 25 of the 1983 Act provides:

"A person who is or has been registered with limited registration may, on satisfying the Registrar that he is of good character, apply to the General Council to be registered fully by virtue of this section; and if the Council think fit so to direct, having regard to the knowledge and skill shown and the experience acquired by the applicant, he shall be registered under section 19 above as a fully registered medical practitioner."

The "General Council" is the General Medical Council, a body corporate whose existence is continued by section 1(1) and whose constitution is prescribed by section 1(2) and Part I of Schedule 1 of the 1983 Act. There are elected, appointed and nominated members.

Section 28 of the 1983 Act continues the existence of the Review Board for Overseas Qualified Practitioners ("the Review Board"). It is to consist of a chairman and deputy chairman, not being members of the General Council, appointed by the President of the General Council, and such other members of the General Council as the Council may by rules prescribe. By section 28(5), the General Council may make rules regulating the procedure of the Review Board. By section 28(6), rules made under section 28 are not to come into force until they are approved by order of the Privy Council.

Section 29 of the 1983 Act provides:

"Any person in whose case a decision falling within subsection (2) below is made by the General Council may require the Registrar to state in writing the reasons for the decision and, subject to subsection (3) below, may apply to the Review Board for that decision to be reviewed by the Board.

(2) The following are the decisions referred to in subsection (1) above, namely:-

...

(c)in a case where at the date of the refusal a person had been registered with limited registration for a period, or for periods which amount in the aggregate to a period, of not less than three years and six months, a refusal to direct by virtue of section 25 above that he be registered under section 19 above as a fully registered medical practitioner; ..."

...

(4) On completing a review under this section of any decision, the Review Board shall determine whether in their opinion the decision ought to stand and shall notify their opinion to the President of the General Council or to such other member of the Council as the Council may appoint to act for the purposes of this subsection; and the President or member so appointed may, if having regard to the Board's opinion he thinks fit, direct that the decision be reversed."

It was under these provisions that Dr Khan applied for a review of the General Council's refusal of his application to be registered under section 19 as a fully registered medical practitioner.

Rules made by the General Medical Council under section 27 of the Medical Act 1978 (the statutory predecessor of section 28 of the 1983 Act) were approved by The General Medical Council (Review Board for Overseas Qualified Practitioners Rules) Order of Council 1979 (SI 1979/29). These rules provide, in Rule 7, that no member of the Council shall be eligible to take part in the review of any decision in which he was previously involved as a member of the Council. Under the heading "Procedure", the Rules provide:

"9.-(a) Any person entitled to apply to the Board under section 28 of the Act of 1978 for a decision of the Council to be reviewed, and who wishes so to apply, shall make written application for the purpose to the Registrar within six months of the date on which the decision was notified to the applicant by the Registrar.

(b) Such application shall identify the decision which the applicant wishes to be reviewed, and shall state the reasons why the applicant considers that the decision should not stand. No documentary or other evidence may be tendered by the applicant at this stage which he had not tendered to the Council before the decision under appeal was taken.

10. If the reasons stated by the Registrar under section 28(1) of the Act of 1978 relate to the character of the applicant, the applicant may if he wishes require to be heard by the Board on his application. If the reasons stated by the Registrar under section 28(1) of the Act of 1978 relate to any other matter, the applicant shall not be entitled to require an oral hearing of his application, but the Chairman may decide to hold an oral hearing if he considers it desirable.

11.-(a) The Registrar shall inform the applicant whether or not the Board will hold an oral hearing.

(b) If an oral hearing is to be held the Registrar shall also inform the applicant of the date, time and place at which the Chairman has decided that the hearing will be held, and shall give the applicant not less than 14 days' notice of such hearing."

...

13. If an oral hearing is held:-

(a)the applicant may be present and represented or assisted by counsel, advocate, or solicitor, or by a registered medical practitioner with full or limited registration; ..."

and there are other provisions relating to an oral hearing. Rule 14 provides:

"(a) The Board shall, when notifying their opinion to the President under section 28(4) of the Act of 1978, state their reasons in writing.

(b) The Registrar shall subsequently notify the applicant of the opinion expressed by the Board with their reasons and of the decision thereon taken by the President under that section."

Section 40 of the 1983 Act provides for appeals to the Privy Council against certain decisions under the Act but these do not include those the subject of Dr Khan's appeal to this Tribunal.

We are told that Dr Khan was in fact afforded an oral hearing by the Review Board, although of course this does not affect the pure point of law which we have to determine on the first issue.

Mr Kibling, counsel for Mr Khan, submits that, since section 54(2) of the 1976 Act, if it applies, removes a right to complain of unlawful discrimination on racial grounds to the Industrial Tribunal and thereafter a right to appeal on points of law to the Employment Appeal Tribunal, it should not be held to do so unless there is an alternative statutory procedure by way of appeal or in the nature of an appeal providing the same or an equivalent measure of protection. In short the alternative procedure should be such as to be able to deal properly and fairly with a complaint of unlawful discrimination on racial grounds. It should have power to investigate a complaint with proper disclosure and power to take steps to redress discrimination if such is found. Mr Kibling submits that the essential characteristics of an appeal are (a) independence of the appeal tribunal from the original tribunal and (b) the right to appear before the appeal tribunal and make oral representations. As to independence, he submits that the original decision is that of a committee of the General Council and that by section 29(4) of the 1983 Act the ultimate decision of the Review process is that of the President or other appointed member of the General Council. The Review Board expresses an opinion but does not take the decision. As to an oral hearing, he submits that under the Rules this is usually a matter for the Chairman's discretion. There is no absolute right at least in cases such as Dr Khan's.

Mr Straker, counsel for the respondents, submits that "proceedings in the nature of an appeal" do not have to be literally an appeal and that the use of the word appeal is not required. He submits that there are proceedings in the nature of an appeal if they are proceedings which are capable of achieving a favourable result for the appellant following an adverse result.

Mr Kibling referred us to R. v. Army Board of the Defence Council, ex parte Anderson [1991] ICR 537. In this case, the applicant, who was black and at the material time a serving soldier in the British Army, made a formal complaint of racial discrimination. By virtue of section 75(8) and (9) of the Race Relations Act 1976, to which we have already referred, this was heard, not by an Industrial Tribunal, but by the commanding officer under section 181 of the Army Act 1955. The applicant failed to obtain satisfactory redress and sought such redress from the Army Board. The board consisted of two members and the procedure adopted was that one member considered the papers, made his own inquiries and then passed the papers with his conclusions to the second member, who then made his own inquiries before coming to a decision. The board rejected the applicant's request for redress. The Divisional Court granted the applicant's application for judicial review. The court held that, although the complaint was being heard under section 181 of the Army Act, the Army Board had to give effect to the substantive provisions of the Race Relations Act 1976 and that it was therefore under a duty to make a specific finding whether there had been unlawful discrimination and to consider compensation or the form of redress if his complaint was proved. At p. 548, Taylor L.J. considered what procedural requirements were necessary to achieve fairness when the Army Board considers a complaint of this kind. He concluded at p. 550G that the Army Board must by its procedures achieve a high standard of fairness. He then said:

"I would list the principles as follows:

(1) There must be a proper hearing of the complaint in the sense that the board must consider, as a single adjudicating body, all the relevant evidence and contentions before reaching its conclusions. This means, in my view, that the members of the board must meet. ...

(2) The hearing does not have to be an oral hearing in all cases. There is ample authority that decision-making bodies other than courts and bodies whose procedures are laid down by statute, are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing. ... Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made. ...

(3) The opportunity to have the evidence tested by cross-examination is again within the Army Board's discretion. ...

(4) Whether oral or not, there must be what amounts to a hearing of any complaint under the 1976 Act. This means that the Army Board must have such a complaint investigated, consider all the material gathered in the investigation, give the complainant an opportunity to respond to it and consider his response."

Anderson's case is not, we think, directly applicable to Dr Khan's appeal. It concerned the second limb of the exception to section 54(1) of the 1976 Act, i.e. a complaint of unlawful discrimination on racial grounds by a serving member of the armed forces. The Divisional Court in effect held that the procedures required of the Army Board in determining such a complaint must have the minimum characteristics of fairness which we have summarised and that it must decide the substantive issue under the Race Relations Act 1976. This appeal concerns the first limb of the exception to section 54(1) of the 1976 Act, where the "appeal, or proceedings in the nature of an appeal" are in respect of the act of which complaint is made, not in respect of the complaint itself. Thus, in the context of section 12 of the 1976 Act, the appeal is against the refusal to confer a professional qualification, not against a refusal to adjudicate that there was unlawful racial discrimination or to give redress for such discrimination. The procedures judged in Anderson's case to be required of the Army Board provide a relevant analogy to help us determine whether a review under section 29 of the 1983 Act is an "appeal, or proceedings in the nature of an appeal." We should also, no doubt, expect to find of proceedings which did come within the first limb of section 54(2) of the 1976 Act that they were in broad terms at least a sensible substitute for a complaint of unlawful racial discrimination to an Industrial Tribunal. But we should not necessarily expect that they would provide the kind of determination and redress referred to in Anderson's case. Rather would they be expected to have power to confer the professional qualification which the original decision had refused and in considering whether to do so to take account of and eliminate any unlawful discrimination which may have infected the original decision.

This analysis accords, we think, with the decision of the Divisional Court in R. v. Department of Health, ex parte Gandhi [1991] ICR 805, an application for judicial review heard by the same division of the court as heard Anderson's case and immediately following it. In that case, the applicant appealed to the Secretary of State under section 33(5) of the National Health Service Act 1977 alleging racial discrimination by the Medical Practices Committee in relation to his applications to take over a medical practice and to open a branch surgery. Section 33(5) of the 1977 Act provides:

"A medical practitioner who has made an application under section 30 which has been refused by the Medical Practices Committee ... may appeal to the Secretary of State; and the Secretary of State may, on any such appeal, direct the Medical Practices Committee to grant the application either unconditionally or subject to such conditions as the Secretary of State may specify ..."

It was common ground that section 54(2) of the 1976 Act excluded a complaint to an Industrial Tribunal of discrimination on racial grounds by the Medical Practices Committee because an appeal might be brought under section 33(5) of the 1977 Act. It was argued that the Secretary of State had to determine the complaint under section 12 of the 1976 Act. The Divisional Court held that the words of section 54(2) of that Act did not support the argument. Taylor L.J. said p. 812:

"Had it been the intention of Parliament that the appellate body should entertain a complaint under the Race Relations Act 1976 and deal with it as a discrete issue, specific words to that effect could have been used. Instead, the subsection simply excludes reference of the complaint to an industrial tribunal where there is an appeal in respect of the act to which the complaint relates."

Taylor L.J. then contrasts with this complaints by serving members of the armed forces to which section 75(8) and (9) apply and refers to Anderson's case. He then said:

"It may seem inconsistent that there should be no enforcement provision for complaints under section 12 analogous to those otherwise available in the employment field. However, Parliament may have considered that, in the field covered by section 12, it was sufficient that the statutory appellate body should be able to redress any injustice due to race discrimination by allowing and appeal and thereby granting the rejected application."

At 814 ff., Taylor L.J. discusses the procedural requirements of the Secretary of State in much the same terms as in Anderson's case. This includes a discussion about the need for an oral hearing. at p. 815G, he said:

"I accept that some appeals to the Secretary of State where race or sex discrimination is alleged may well require an oral hearing. Whether it is required in any particular instance will turn, inter alia, upon the facts of the case, the particular allegations made, whether there appear to be other obvious grounds for the decision and whether there are significant conflicts of evidence. I am far from accepting that whenever there is a claim of race discrimination an oral hearing is obligatory. ..."

Both Anderson's case and Ghandi's case were applications for judicial review of particular decisions. The present appeal is not such an application, but concerns the determination of the abstract question whether a review under section 29 of the 1983 Act is an "appeal, or proceedings in the nature of an appeal."

We have to consider what are the nature and characteristics of an appeal bearing in mind that we are concerned with section 12 of the 1976 Act, i.e. with authorities or bodies who can confer professional or trade qualifications and that, by section 54(2) the appeal or proceedings in the nature of an appeal has to proceed from an enactment. Mr Straker, as we have said, contended for a restrictive definition of what constitutes an appeal, and he referred us to a passage in Halsbury's Laws, Volume 37 paragraph 677 at p. 516, where, under the heading "Appeals to the Court of Appeal", we find:

"An appeal is an application to a superior court or tribunal to reverse, vary or set aside the judgment, order, determination, decision or award of an inferior court or tribunal in the hierarchy of courts or tribunals on the ground that it was wrongly made or that as a matter of justice or law it requires to be corrected."

No doubt it is a necessary characteristic of an appeal that its outcome is capable of reversing the original decision and in particular of granting what the original decision refused. But we do not consider that this by itself is sufficient. We think that the proceedings must also have characteristics of fairness enabling the person who wants the original decision changed to make his case. The procedural characteristics identified by Taylor L.J. in Anderson's case should in substance be present. In our view, the proceedings of the Review Board required by statute and the rules to which we have referred do in substance have those characteristics. The statute and the rules provide for the applicant to be given the written reasons for the original decision; for the applicant to present his case; for an oral hearing is some instances automatically but in any event when the chairman considers it desirable; for representation if there is an oral hearing; for the Board to state their reasons in writing; and for the applicant to be notified of those reasons and of the decision taken in consequence.

Mr Kibling submits that an appeal requires an oral hearing in every case, but both Anderson's and Ghandi's cases are against this submission. He submits that the proceedings should be capable of investigating and determining complaints of unlawful discrimination and of granting redress, but the passages from Ghandi's case to which we have referred are against this submission. It is not possible to spell out from the statute the precise reason why Parliament enacted the first limb of section 54(2) of the 1976 Act, but Taylor L.J.'s judgment in Ghandi's case supplies a possible explanation. Mr Kibling submits that a necessary characteristic of an appeal is that the appellate body is independent of the original tribunal and capable of reaching an independent determination and that such is not so with the Review Board. In our view, firstly the Review Board is to be regarded as sufficiently separate and independent from the committee of the General Council taking the original decision. The chairman and deputy chairman may not be members of the General Council and the other members may not participate in the review if they were previously involved as members of the Council. It is not, we think, persuasive against these proceedings being an appeal or proceedings in the nature of an appeal that members of the General Council sit on the Review Board. You need appropriately experienced people on a board performing the functions of this Review Board. Secondly, granted that section 29(4) of the 1983 Act provides for the Board to notify their opinion to the President or an appointed member of the Council and for the President or appointed member to take the eventual decision having regard to the Board's opinion, we think that this should be viewed in much the same way as the Secretary of State making a decision upon advice under section 33(5) of the National Health Service Act 1977. No doubt it would be quite exceptional for the opinion of the Review Board, whose reasons have to be provided to the applicant, not to be followed.

Mr Kibling submits in the alternative that section 54(2) of the 1976 Act does not apply when the appellant has exhausted the procedures available. He submits that a disjunctive reading of the section is required and that the section is conditional on the right to bring proceedings. Once the right is exhausted, the section no longer applies. In our view, there is no ground for reading the sub-section in this alternative way, which in any event appears to be inconsistent with the passage from Taylor L.J.'s judgment in Ghandi's case which we have quoted.

For these reasons, we consider that proceedings before the Review Board under section 29 of the 1983 are "an appeal, or proceedings in the nature of an appeal" and that the Industrial Tribunal was correct to decide on this ground that it did not have jurisdiction to entertain his complaint. Accordingly Dr Khan's appeal fails.

The Industrial Tribunal found in Dr Khan's favour on the second issue, which strictly upon their decision on the first issue did not arise. The respondent's seek to appeal against the finding on the second issue. Their contention was, in brief, that the General Medical Council was bound by section 25 of the 1983 Act to have a standard against which the knowledge, skill and experience of an applicant such as Dr Khan may be judged. Consequently, if there were discrimination such as Dr Khan alleges, it would arise pursuant to the 1983 Act and would therefore not be unlawful by virtue of section 41(1)(a) of the Act, which provides:

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

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

The Industrial Tribunal found against this contention on the authority of the House of Lords decision of Hampson v. Department of Education and Science [1990] ICR 511. This was a decision under section 41(1)(b) of the 1976 Act which the Tribunal found applied equally to section 41(1)(a). In the circumstances that a determination of the respondents' cross appeal is unnecessary to the result of Dr Khan's complaint, we simply record that, in our view, the respondent's contentions on the second issue fail for the reasons given by the Industrial Tribunal.