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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kandil FRCS v General Medical Council [1993] UKEAT 54_92_2906 (29 June 1993)
URL: http://www.bailii.org/uk/cases/UKEAT/1993/54_92_2906.html
Cite as: [1993] UKEAT 54_92_2906
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE WOOD MC (P)
MR P DAWSON OBE
MR K M HACK JP
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant MR T KANDIL FRCS
(In Person)
MR JUSTICE WOOD (PRESIDENT): This is a preliminary hearing under our procedure at which the Appellant appears to argue whether or not there is a point of law which merits a hearing inter partes.
We only have jurisdiction in this Appeal Tribunal if there is a point of law to be argued. In the present case, we see on the proceedings, that Dr Kandil was bringing proceedings against the General Medical Council. He holds the degree of FRCS Glasgow and out of courtesy we will therefore refer to him as Mr Kandil.
This case discloses a set of facts where the Industrial Tribunal felt sympathy with Mr Kandil and also felt that, perhaps, he might have been wise to take legal advice as to his rights and the way in which he could proceed under the law, which is complicated. We propose to give a rather longer judgment than we might otherwise have done in order to try and explain to Mr Kandil the problems which he faces in law.
Mr Kandil qualified in 1973 at the University of Alexandria as a Doctor. A Batchelor of Medicine and Batchelor of Surgery. He was registered as a Doctor in Egypt in 1975 and came to this country in 1976. Save for visits to return to Egypt, he has remained in England as a British citizen and lives permanently in this country. As we have already said, in 1989 he obtained his fellowship in Glasgow.
The Medical Act 1983 provides under Part 3 for the registration in this country by the General Medical Council of doctors who have overseas qualifications. Since about 1977 Mr Kandil has had a limited registration under Part 3. There was a time when restrictions were placed for a year or two, but they were removed and he still has a limited registration. In 1991 he applied for full registration. That was ultimately refused in October 1991. That was in fact after the Originating Application in these proceedings had been filed, which was on the 5th July 1991.
The importance of distinguishing between a limited registration and a full registration is, to put it very broadly, a limited registration allows the doctor to practice, to an extent under supervision, up to the grade of Senior House Officer only. A full registration permits him to apply for an appointment as a Consultant.
The basis of his complaints were fourfold and he brought them before the Industrial Tribunal. He complained of discrimination under the Race Relations Act 1976. The first matter which he raised with us, was as to the procedure which was adopted by the Tribunal. Due to the complication of the matter, and due to the fact that the Tribunal felt that there was some difficulty in Mr Kandil applying and understanding technical legal phraseology, they asked Counsel for the GMC, Mr Straker, to open the case, and in particular to open the difficulties in the law. That was an unusual step in some ways, but it is not one which has never been utilised in the past, indeed on occasions I have used it myself in this Appeal Tribunal, but we can assure Mr Kandil that although the case took a considerable time to be opened I am sure that he was not prejudiced thereby in the way in which the matter was ultimately dealt with by the Industrial Tribunal, who were considering it as a question of law.
The second matter which we can deal with is this, Mr Kandil complained that the GMC refused to address him as Mr Kandil, despite the fact that he held the fellowship in Glasgow. The problem there is that under Section 26(2) of the 1983 Act only primary medical qualifications granted overseas are included in the limited register and the higher qualifications awarded in the United Kingdom are not registrable in the limited register. So that if he obtained the full registration, then the Glasgow fellowship would appear on the register and he would be entitled to be addressed as Mister. The GMC indicated in its Notice of Appearance no intention of discourtesy, I am sure that however strongly Mr Kandil feels about that, it has come about because of the statutory provision and not because of any intention to discriminate, or indeed, insult him in any way.
The third general point with which we will deal is that Mr Kandil was making a general complaint that whilst carrying out procedures, which were more appropriate to a Registrar or a Consultant, he was nevertheless only being paid as a Senior House Officer. He felt that he could bring proceedings under the Equal Pay Act. There is no allegation as such in the pleadings in the Originating Application. We have grave doubts whether he can bring those proceedings but they in fact are not before us and we therefore are unable to deal with that matter.
That leaves us with the issues concerning registration. There are, in the main, two substantial complaints which Mr Kandil makes. The first is to the delays in the granting to him of the successive limited registrations and then, secondly, the refusal to grant him full registration. The relevant provisions of the 1976 Act are Section 12(1) which forbids an authority which confers or authorises a qualification in any particular profession to discriminate and Section 54 which deals with the rights to bring proceedings under Section 12 before an industrial tribunal. However, before looking to those two Sections in greater detail, it is important to recognise that the proceedings must be brought within three months of the act of discrimination unless there is an extension granted as being just and equitable. It had been decided by an earlier industrial tribunal, and indeed confirmed by the present Industrial Tribunal from which this appeal is sought to be brought, that the act of discrimination is the refusal of registration in each case. Thus although it was open to the Tribunal to look, generally, at any question of delay which had occurred, the refusal, of full registration must be examined within the three month period prior to the Originating Application.
As to the delay the Tribunal do in fact examine that, whether or not they strictly had jurisdiction to do so, in paragraph 17 of the decision. They look at the latest application for full registration, they examine the documentation, they had a statement from Mr Kandil, and we have seen a number of documents - no doubt they were all before the Industrial Tribunal - but they say, having examined it, that they are not over critical of the delay and in any event the delay disclosed no evidence of discrimination whether racial or otherwise. That was a finding of fact to which they were entitled to come, and indeed Mr Kandil has asked us to look at a substantial amount of correspondence and other documentation. It seems that the delay in the recent months, was not such that he could complain. His complaint is that over the successive years when he has been granted a fresh certificate of limited registration the actual certificate is not in his hand until after the termination of the previous certificate. It is not open to us to go right through and look at each particular case nor was it open to the Industrial Tribunal because of the time limitation.
However, the major hurdle in his path is within the statutory provisions themselves. Section 54 of the 1976 Act, to which we have already referred, allows under subsection (1) for proceedings to be brought before an industrial tribunal in connection with an alleged act of discrimination falling within Part II of the Act, and Part II of the Act includes Section 12, which deals with qualifying bodies. Thus, subject to subsection (2) of Section 54, Mr Kandil could bring proceedings. Subsection (2) however provides as follows:
"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."
So, the qualifying bodies section and the complaint under Section 12(1) cannot be brought before an industrial tribunal where there is an appeal, or proceeding in the nature of appeal, which may be brought under the enactment. We therefore must turn to the Medical Act 1983 and see whether there is a provision whereby an appeal or a proceedings in the nature of an appeal may be brought against the limited registration or the full registration. Part 3 of the 1983 Act is headed "Registration of Persons Qualifying Overseas". Section 19 deals with full registration of persons by virtue of recognised overseas qualifications. Section 20 covers experience required for full registration by virtue of recognised overseas qualifications. Then Section 21 deals with provisional registration and the relevant sections, for our present purposes start with Section 22, which deals with limited registration. The limited certificates granted to Mr Kandil originally applied only, as he pointed out to us, for a period of five years. He is now entitled to go on working here so the five year provision no longer applies, but, he is only entitled to the limited registration certificate and has been year by year as time has passed. There are various provisions as to the length of the certificate and as to other matters to which we need not refer. The full registration starts with Section 25 and Section 26 is the registration of qualifications. The full registrations and the limited registrations are subject to an appeal process to the Review Board. Section 28 says there shall continue to be a body known as the Review Board for overseas qualified practitioners and Section 29 provides that there may be an appeal to the Review Board either in the case of limited registrations refusals, or full registration refusals. Thus, so far as the complaint about the refusal of full registration is concerned there is a power of appeal to the Review Board, and indeed we understand from Mr Kandil that since all these proceedings were dealt with he has in fact so appealed, and it follows therefore that by reason of Section 54(2) of the Race Relations Act 1976, the Industrial Tribunal could not deal with that matter. Thus, looking at the complaints which Mr Kandil brought, first of all as to the full registration, there was no power at the Tribunal to deal with it. As to the limited registration, he has been granted and continued to be granted the limited registration, it was the delays which he was complaining about and those delays would be limited to the most recent grants, the delays were examined by the Tribunal and they rejected criticism of those delays.
So far as a reference to him as Mr Kandil, we have dealt with that. So far as the equal pay is concerned, it was not raised in the pleadings and we very much doubt whether Mr Kandil could bring himself within the provisions of the Equal Pay Act 1970. Thus, at rather greater length than we would normally have expressed ourselves, we have tried to explain to Mr Kandil the legal problems which he had, it is no fault of his that the legal problems were there, it is no fault of ours that the legal problems are there, but the legal problems are there and the Tribunal were entirely correct, in our judgment in law, in rejecting his applications. It follows therefore we can find no error of law and this appeal must be dismissed at this juncture.