United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1075_95_0305

Appeal No. EAT/1075/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3rd May 1996

Before

THE HONOURABLE MR JUSTICE BUTTERFIELD

MR J D DALY

MR J A SCOULLER

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DR C TATTARI          APPELLANT

PRIVATE PATIENTS PLAN LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MS TESS GILL

(of Counsel)

Legal Department

British Medical Association

BMA House

Tavistock Square

London WC1H 9JP

For the Respondents MR N GREEN

(of Counsel)

Lawrence Graham

Solicitors

190 Strand

London WC2R 1JN


 


MR JUSTICE BUTTERFIELD: In June 1995 the appellant, Dr Tattari, applied for relief under the provisions of the Race Relations Act 1976. The respondents, Private Patients Plan Ltd resisted the application on the preliminary ground that the tribunal did not have jurisdiction to entertain the complaint.

The Industrial Tribunal sitting at Ashford in Kent, upheld the respondents objection, and rejected the application on that ground in a decision promulgated on 23rd August 1995. Against that decision the appellant now appeals.

The appellant is a doctor of medicine. She is a United Kingdom citizen but a Greek by origin. She obtained her basic medical qualification at Athens University and came to the United Kingdom shortly thereafter, where she held a number of hospital posts as a surgeon. She is qualified to practice medicine in the United Kingdom.

In 1979 she was admitted as a Fellow of the Royal College of Surgeons. Since 1988 she has been in private practice as a plastic surgeon in London.

On 10th December 1993 she was added to the specialist list maintained by the General Medical Council in accordance with Article 6 of the Medical Qualifications EEC Recognition Order 1977 by virtue of her Greek specialist qualification in plastic surgery. The GMC has thus recognised her right to practice as a plastic surgeon in this country.

The respondents are an insurance company, providing medical insurance to members of the public who subscribe to their scheme. The terms of the respondents cover provide that if a policy holder falls ill he may obtain medical treatment for which the respondents will pay. In particular, the respondents undertake to pay for treatment by a "specialist" in appropriate circumstances. The rules of the respondents under which cover is provided to policy holders, define a "specialist" for the purposes of the insurance policy in Clause 1.26 of their rules.

"1.26 SPECIALIST: A person who:

(a) is a registered medical or dental practitioner and

i) is or has been a consultant in a National Health Service hospital in the speciality for which the Member needs Treatment. This includes a locum consultant appointment in the National Health Service but only for as long as the locum appointment lasts; or

ii) has a Certificate of Higher Specialist Training or its equivalent in the speciality for which the Member needs Treatment given by the Higher Specialist Training Committee of the appropriate Royal College or Faculty;"

In December 1994 the appellant applied to the respondents to be granted specialist recognition by them, so that if she treated policy holders in the respondent's scheme, she would be paid for that treatment by the respondents, rather than by the patient. Her application was rejected on the ground that she did not hold either a substantive NHS consultant post or a certificate of Higher Specialist Training given by the Higher Specialist Training Committee of the Royal College of Surgeons. She was informed that the respondents did not recognise any EEC Certificate of Higher Specialist Training for the purpose of their rules. The appellant applied to the Industrial Tribunal alleging discrimination on the grounds of nationality contrary to Section 1(1)(b) of the Race Relations Act 1976. The respondents not only denied discrimination, but also denied that the alleged discrimination was unlawful under Section 54, so that, it was said, the Industrial Tribunal had no jurisdiction to adjudicate on the complaint.

The Industrial Tribunal directed that the question of jurisdiction be determined as a preliminary issue. The tribunal concluded that it did not have jurisdiction. The appellant contends that the tribunal was wrong in law so to hold.

The basis on which the appellant contends that the respondents alleged discrimination is unlawful, rests on Section 12 of the Race Relations Act 1976. That provides under heading "Qualifying bodies" as follows:

"(1) It is unlawful for an authority or body which can confer an authorization 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 authorization or qualification; ...

(2) In this section-

(a) "authorization or qualification" includes recognition, registration, enrolment, approval and certification;

(b) "confer" includes renew or extend."

The Industrial Tribunal found that the respondent is not a body or authority within the meaning of the Act. The appellant submits that the tribunal fell into error so to do. On her behalf it is submitted that the respondent was a body or authority within the meaning of Section 12 which could confer an authorization or qualification including in particular recognition which facilitates the appellant in carrying on her profession.

I should pause to say that in our judgment the word "profession" in the Act as defined plainly is susceptible to cover the appellant's work as a plastic surgeon.

In considering the words used in the Act, it is submitted to us that we should have regard to Community Law to this extent. It is submitted that it is our duty so far as it is proper so to do, to interpret Section 12 so that the appellant's Greek qualification will have the same effect in the United Kingdom, as the United Kingdoms' own equivalent qualification carries. That, it is submitted, is the effect of Article 6 to which we have already referred. Article 6 provides that each member state with provisions on this matter laid down by law, regulation or administrative action shall recognise the diplomas, certificates and other evidence of formal qualifications in specialised medicine awarded to nationals of member states by other member states, in accordance with another directive and which are listed in Article 7 by giving such qualifications the same effect in its territory as those which the member state itself awards.

It is submitted on behalf of the respondent that whilst of course any relevant legislation must be construed in the light of that Directive, and if possible construed so as to accord with the content of the Directive, the first question for the court to consider is the scope of the Directive. If the Directive imposes no obligation on the respondent, then our construction of Section 12 cannot be affected by the consideration of the Directive.

In that respect, the respondent relies upon an unreported decision of Judge Lachs sitting as a Deputy High Court Judge, in chambers, in the case of Rovere v Private Patients Plan Ltd. That case has a number of similarities with the present one. In the course of a long and carefully considered reserved judgment, Judge Lachs considered the application of the Directive with which we are concerned, to a doctor who had qualified in Italy, who was seeking to require the defendants, the present respondents, to have him registered as one of their doctors. In the course of his decision, he said this: "How is a private body to evaluate and be deemed responsible for the investigation and monitoring of the complex array of qualifications and certificates and diplomas which a candidate for medical employment might produce? I find it very difficult to comprehend how it can be arguable that the duties laid down in the Directive can apply to a private body." He concluded "that it was clear that the order is not directed to private bodies, and it is clear that the Directive does not require or envisage that the order shall be directed to private bodies. The Directive is directed to member states and the competent authority, and on this issue I can see no mismatch". Considering the question of the extent to which the national court should have regard to the Directive in interpreting national law, the learned judge referred to the ratio in the well-known decision of Marleasing S.A. v L.C.I.A.[1992] 1 CMLR 305 and cited the central thrust of that decision to this effect. "The judgment goes on to lay down as a national court called on to interpret national law is required to do so as far as possible in the light of the wording and purpose of the Directive in order to achieve the result pursued by the latter. Mr Tyrell (Counsel for the plaintiff in the action) relied on this sentiment, but it is not relevant to this action. That advice as to interpretation presupposes a proper justiciable defendant and goes then to the interpretation of the national law which should be applied. It cannot help the plaintiff in this case." By the same analysis it is submitted the Marleasing point does not assist the appellant here.

In our judgment that submission is well-founded. However, it will have but little practical consequence to the way in which we approach the construing of Section 12, because we are quite satisfied that that Section should not be construed narrowly but should be given a broad interpretation. Our conclusion would have been precisely the same had we applied the Marleasing test.

With that preliminary, I turn to the submissions made on behalf of the appellant. It is submitted on behalf of the appellant that the words used Section 12 referring to a "body or authority" are not limited in the Act, and on a plain words test are wide enough to encompass the respondent. Further, the respondents could confer upon the appellant an authorization or qualification, since the Act provides that those words include "recognition". The respondents supply an application form for doctors applying to be recognised as specialist by them. They then either accept or reject the application. "Recognition" must thus include recognition for the purposes of the respondent of a qualification obtained outside the United Kingdom. By this chain of reasoning the appellant submits that the respondent was an authority or body which could confer an authorization or qualification including recognition. Further, that authorization or qualification does facilitate engagement in a particular profession. It is submitted that the effect of recognising the appellant's qualifications is that persons insured by the respondent are allowed to use the appellant's services. This facilitates her engagement in her profession as a plastic surgeon in that it gives access to her to a number of private patients who would not otherwise use her services.

This argument which we have recited in a little detail, does not persuade us that the Industrial Tribunal erred in law in its interpretation of the Section. The starting point must be an examination of the part of the Act in which the Section appears. Part 1 identifies discrimination to which the Act applies. Part 2 is concerned with discrimination in the employment field. Sections 4 to 9 relate to discrimination against employees and applicants for employment providing a general rule against discrimination with certain specific exceptions. Sections 10 to 14 are concerned with discrimination by other bodies including partnerships, trade unions, those providing vocational training and employment agencies.

The meaning of Section 12 has been considered by analogy with the parallel section within the Sex Discrimination Act 1975, Section 13 of that Act, in the case of Regina v Immigration Appeal Tribunal (ex parte Bernstein) [1987] ImmAR 182. It is unnecessary to say more about the facts than it concerned a working holiday maker who applied for a work permit having visited this country. She alleged that in refusing her a work permit, the Department of Employment had discriminated against her as a woman. Reliance was placed by the appellant on Section 13 which contains precisely similar words to Section of the 1976 Act. Giving judgment Taylor J. said this: "Mr Laws" (who was Counsel for the respondent) "argues that "authorization or qualification" as defined in subsection 3 of Section 13 clearly relates to professions, jobs or trades. Thus the Section would apply to those conferring degrees or professional registration. It would apply to those granting licences for examples in respect of taxis. In my judgment the words of section 13(1) do not apply to the Department of Employment in the context of this case. They are aimed at professional bodies which grant a qualification for practising, or other bodies granting licences, registration, authorization or qualification to follow a particular trade or calling. Apart from the plain wording of the Section its position in a group of sections from 11 to 16 in Part II of the Act supports this view." The judgment of Taylor J. was expressly approved in a later decision of this tribunal Malik v Post Office Counters Ltd [1993] ICR 93. Citing the passage to which I have made reference, Knox J. said:

" No doubt Taylor J. was there seeking to describe, rather than define precisely, the ambit of the section but respectfully adopt that description."

It is therefore, in our judgment, clear that Section 12 of the Act is aimed at professional bodies which grant a qualification for practising, or other bodies granting licences, registration, authorization or qualification to follow a particular trade or calling. The respondent is plainly not a professional body. It is a profit making commercial concern offering its services to those members of the public who wish to avail themselves of them in return for payment. The respondent does not grant qualifications for practising medicine; it does not vet or accredit medical practitioners; the body responsible for that is the GMC. Nor does the respondent grant licences, registrations or authorizations to follow a particular trade or calling. That, in the medical profession is a responsibility again discharged by the GMC or in some specialities by the Royal Colleges and Specialist Committees. The respondent is no more or less than an insurance company which through its policy terms confers a contractual right of reimbursement upon policy holders and subscribers in appropriate circumstances.

The construction contended for by the appellant, in our judgment, strains the clear words of the Section as they have been interpreted by the courts to breaking point and beyond. The words "authority or body" are delineated and confined by the succeeding words of the Section. Those words, in our judgment, are not susceptible to describe the activities and status of the respondents. "Recognition" within the meaning of the Section is, in our judgment, applicable for example to the consideration by a professional body of a qualification obtained outside United Kingdom for the purpose of practising medicine here, just as the GMC did recognise the appellant's overseas qualifications. It is not apt to describe the activities of the respondent in considering applications by doctors to be recognised by them as specialists.

Further, in our judgment, the appellant is not a person upon whom the respondent can confer anything within the meaning of the Section. We are invited to consider by the respondent what it actually is that is conferred on the doctor recognised as a specialist for the purpose of the rules. In truth what is conferred is a right for the policy holder or subscriber to be reimbursed by the respondent when he or she receives medical treatment from the specialist. Nothing is conferred on the specialist. In theory, there is nothing to prevent the policy holder engaging the services of a medical practitioner who does not qualify as a specialist within the respondent's rules. The only consequence of so doing would be that the policy holder would not be reimbursed by the respondent.

If we are wrong in so holding, and the specialist qualifying under the rules could be said to be a person upon whom the right to be reimbursed for treating the respondent's policy holders is conferred, that right does not, in our judgment, amount to an authorization or qualification.

Our attention has been directed in this respect both to the decision of the British Judo Association v Petty [1981] ICR 660 and Malik v Post Office Counters Ltd (Supra). The effect of those decisions is that Section 12 is intended to and does only operate against such authorities or bodies which confer a general licence or qualification to work in a particular trade, profession or business. The Section only governs the activities of those bodies which can regulate entry to professions and trades or sectors of such professions and trades. The respondent has nothing whatsoever to do with entry into the medical profession or any part of it. It merely delineates by its own rules those medical practitioners for whose services it is prepared to pay.

The appellant submits that by recognising her as a specialist for the purpose of the respondents rules she would thereby be facilitated in her engagement in her profession as a plastic surgeon in that she would be able to treat a larger number of patients. Again, we do not agree. The appellant is recognised by the GMC as a specialist able to practice in the United Kingdom. She does in fact do so. The respondent's refusal to recognise her as a specialist for the purpose of its rules does not hinder her in any way in practising her profession. She is not prevented from treating any patient who chooses to consult her, whether they be policy holders or subscribers to the respondent's insurance scheme or not. Her access to such potential patients is not restricted at all. The only effect is that she will not be paid by the respondent if she does treat such a patient.

For those reasons in the clear view of this court, the tribunal was correct in holding as it did, and this appeal is dismissed.