United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 668_95_0705

Appeal No. EAT/668/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7th May 1996

Before

THE HONOURABLE MR JUSTICE BUTTERFIELD

MR P DAWSON OBE

MR R H PHIPPS

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MS F V CHOUX          APPELLANT

THE ROYAL COLLEGE OF VETERINARY SURGEONS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR J WHITMORE

(of Counsel)

Commission for Racial Equality

Elliot House

10/12 Allington Street

London SW1E 5EH

For the Respondents MISS MARY O'ROURKE

(of Counsel)

Messrs Hempsons

Solicitors

33 Henrietta Street

London WC2E 8NH


 


MR JUSTICE BUTTERFIELD: Flavia Choux, the appellant, is a Swiss national. She wanted to practice as a veterinary surgeon in the United Kingdom. She had obtained a degree in veterinary medicine from the University of Parma in Italy in May 1992. In August 1993 she applied to the Royal College of Veterinary Surgeons to become a member of the College and be registered. That would enable her to practice as a veterinary surgeon in the United Kingdom subject to her obtaining the appropriate work permit. The Royal College registered her as a member in November 1993. The registration department had made a mistake. The appellant was not a national of European Union state. When the registration department realised its error, the respondents cancelled the registration, and the Royal College informed the appellant that she would have to pass their examinations before registration.

The appellant says this is ridiculous. If she had been a national of any European Union state holding her qualifications, the Royal College of Veterinary Surgeons would have been obliged to register her as a member under the Veterinary Surgeons Act. It cannot be right that just because she happens to be Swiss, not Italian or French or German or whatever, that she can be discriminated against in this way.

The appellant brought an application to the Industrial Tribunal sitting at London (South) alleging unlawful discrimination by the respondents on racial grounds in respect of her nationality. She contended that she should be treated in the same way as a European Union national holding her qualification. If she was such a person, she would be admitted as a member of the Royal College without having to sit any examination.

Not so, said the Royal College. They agreed that if she were a European Union national with an appropriate degree from Parma they would have to register her, they would have no choice in the matter by virtue of Section 5A of the Veterinary Surgeons Act 1966, but she was not a national of the European Union. The course in veterinary medicine at the University of Parma is no doubt an excellent one, but it does not in fact, say the respondents, quite match the standards the Royal College finds acceptable. It may be that the graduates from Parma would have no difficulty in passing the Royal Colleges' examinations. But unless the Royal College is obliged by law to register such graduates it requires them to take an examination first.

In a decision promulgated on 14th February 1995, the Industrial Tribunal agreed with the respondents, both on the issue of direct discrimination and indirect discrimination and held that the appellant was not unlawfully discriminated against on racial grounds. The appellant was dissatisfied with that decision and now appeals to this tribunal.

Discrimination in this case arises, if at all, out of the application of Section 12(1) of the Race Relations Act 1976. That section provides:

"(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 ... to discriminate against a person-

(a) in the terms on which it is prepared to confer on him that authorization 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."

It is common ground that the respondents are a body to whom Section 12 applies. They must not therefore offend against Section 1 of the 1976 Act by treating the appellant less favourably than they treat or would treat other persons. In determining the group of person with whom the treatment of the appellant must be compared for the purposes of Section 1, the Industrial Tribunal was required to have regard to Section 3(4):

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

The Industrial Tribunal decided that the correct comparator for the purposes of Section 3(4) was all non-UK qualification holders and non-EU nationals whether with or without the appropriate European qualification. It is submitted that they were wrong. In determining the question which the Industrial Tribunal was required to answer, it is submitted that the Industrial Tribunal should have compared the appellant, a non-EU national with a Parma University qualification in veterinary medicine, with an EU national with a similar qualification.

In determining that submission it is necessary to refer to the Veterinary Surgeons Act 1966, Section 5A, so far as is material provides as follows:

"(1) Subject to the provisions of this Act and any Order in Council ... a person who is national of a member State and holds a recognised European qualification in veterinary surgery, that is to say-

(a) any scheduled European qualification in veterinary surgery granted in a member State on or after the date on which that State implemented the Trading Directive ...

shall be entitled to be registered in the register and on being so registered shall become a member of the College."

Section 6 of the same Act provides as follows:

"(1) A person who shows to the satisfaction of the registrar-

(a) that he is of good character,

(b) that he holds a Commonwealth or foreign qualification in veterinary surgery, and

(c) that he has satisfied the Council he has the requisite knowledge and skill to fit him for practising veterinary surgery in the United Kingdom,

shall be entitled to be registered in the register and on being so registered shall become a member of the College.

(2) Without prejudice to any other steps which the Council may take for the purpose of satisfying themselves that a person has the said knowledge and skill, the Council shall for that purpose, except in a case falling within the next following subsection, require him to sit for examinations held for the purposes of this section by or under arrangements made by the College.

(3) If a Commonwealth or foreign qualification held by a person is of a kind accepted for the time being by the Council as constituting, in itself, satisfactory proof of that person's possessing the requisite knowledge and skill to fit him for practising veterinary surgery in the United Kingdom, that person shall be taken to have satisfied the Council that he has the said knowledge and skill."

Pausing there, under subsection (3) of Section 6 only eight such institutions are presently recognised or were recognised at the time of the appellant's application to the College. All those institutions were old Commonwealth institutions from South Africa, Australia, New Zealand or Canada.

The respondent submits that the words in Sections 5A and 6 of the Veterinary Surgeons Act 1966 are plain. Section 5A is a statutory provision conferring entitlement to registration without any facility granted to the respondents to refuse that registration or exercise any discretion whatsoever in the matter on a group of individuals, that is to say European Union nationals in certain defined circumstances, those circumstances being that the applicants hold recognised or scheduled European qualifications. Thus it is said Section 5A provides an entitlement to registration for individuals, but does not itself make provision for recognition of qualifications, nor does it include any statement as to the relevance of the qualifications on the issue of knowledge or skill of the holder. The respondents simply have no discretion in respect of the application of Section 5A so far as individuals holding scheduled qualifications are concerned. If the respondents receive an application for registration from an individual who satisfies the conditions of Section 5A the respondents are obliged to register him or her.

Similarly, so far as Section 6(1) and (2) are concerned, again the respondents have no discretion as to registration of a non-EU national who has not sat for examinations, unless that person holds a qualification accepted under Section 6(3). Section 6(3) does not concern applications for registration, but rather:

"qualifications of a kind accepted for the time being by the Council as constituting, ... satisfactory proof of requisite knowledge and skill"

It is submitted on behalf of the appellant that Section 5A does not in reality permit more favourable treatment of European Union nationals. What rather should be considered is the effect of Section 6(3) when taken in contra-distinction with Section 5A. Section 6(3) does not create a situation in which less favourable treatment was necessarily a consequence to the appellant. The respondents, it is said, should have treated the appellant's qualifications as falling within Section 6(3) or at least had the discretion so to do. The exercise of that discretion is not a necessary consequence of statutory provisions, and thus the respondents are not protected by Section 41 of the 1976 Act.

Further, the appellant submits that if a qualification such as that held by her is recognised by the United Kingdom in one context, that is to say under Section 5A but not in another, that is to say under Section 6(3), that undermines the qualification itself and diminishes that qualification. That cannot, it is submitted, have been the intention of Parliament in enacting Section 5A, still less the intention of European legislation from which was born Section 5A. The tribunal, it is submitted, should have had that matter in mind in interpreting Section 6(3). Boldly, Mr Whitmore on behalf of the appellant submits it could never have been countenanced as a possibility that a non-European member with the same qualification as a European member would be treated differently. European Community legislation would never have dreamt of doing such a thing he says. Miss O'Rourke for the respondents submits that this was no bad dream. This is precisely what the European Community legislation did.

The legislation which is the genesis of Section 5A is to be found in Council Directive of 18th December 1978, 78/1026/EEC. That was a Directive concerning the mutual recognition of diplomas, certificates and the like, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services. The preamble recites as follows:

"Whereas, pursuant to the Treaty [of Rome], all discriminatory treatment based on nationality with regard to establishment and provision of services is prohibited as from the end of the transitional period; ..."

Article 2 of the Directive recites as follows:

"Each Member State shall recognize the diplomas, certificates and other evidence of formal qualifications awarded to nationals of Member States by the other Member States in accordance with Article 1 of Directive 78/1027/EEC [emphasis added]."

Article 18 provides that:

"1. Member States shall bring into force the measures necessary to comply with this Directive within two years of its notification and shall forthwith inform the Commission thereof."

Subordinate directions promulgated on the same date laid down minimum standards to be achieved and a detailed study programme for veterinary surgeons within the European Community. Those subordinate directions further provided for the establishment of an advisory committee to ensure comparably high standards were maintained in all member states.

In the judgment of this tribunal it is perfectly clear that Parliament in enacting Section 5A was doing precisely what was required by the European Council. For the purposes of the Veterinary Surgeons Act 1966 European Union nationals are to be regarded as a separate, favoured, privileged group enjoying greater rights and freedoms than other non-EU nationals. Such discrimination was discrimination not merely sanctioned by but required by statute. Thus when a comparator is to be chosen for the purposes of Section 3(4) of the Race Relations Act 1976 European Union nationals do not form a valid group for comparison purposes because of the special status afforded to them under the legislation to which we have referred.

We unanimously find that the Industrial Tribunal correctly identified the comparator group. Other European Union nationals with a Parma qualification were not a valid comparator group for the reasons we have given. We are supported in our conclusions by the decision of the Court of Appeal in Dhatt v McDonalds Hamburgers Ltd [1991] ICR 238. That case concerned the consideration of the entitlement to live and work in the United Kingdom without restriction or indeed the need for a work permit. In our judgment, however, the principles which may be derived from that decision are precisely in point here. Mr Whitmore has sought to distinguish the present situation with that applicable in Dhatt, but in our judgment, the distinctions he seeks to make are distinctions without a difference. In Dhatt Stocker LJ. had this to say considering Section 3(4):

" For my part I agree with the submission made on behalf of the employers and with the findings of both the industrial tribunal and the appeal tribunal that if British citizens and those from the E.E.C. are included as comparators, then the comparison is not "like with like" since neither of these categories requires a permit to work. [Neither of those categories in the present circumstance requires to take an examination to be recognised by the Royal College of Veterinary Surgeons] The true comparators are those, not British citizens or from the E.E.C., some of whom require a permit to work and some do not."

Staughton LJ giving judgment in the same case, said this:

"The proper comparison under section 3(4) is between the applicant and others who, although not Indian citizens, are also neither British nor E.E.C. citizens. The relevant circumstances are then the same; all require either a work permit or indefinite leave to enter; all are treated alike in the employers' questionnaire. It is true that this approach treats nationality as a relevant circumstances, and that nationality is itself discriminatory in racial terms. But it is discrimination which has been sanctioned, if not actually enjoined on employers, by statute."

Section 6(3) in our judgment is nothing to the point. Section 5A concerns applications by individuals for registration, which is what the appellant did in this case. Section 6(3) concerns qualifications acceptable for the time being to the respondents. The respondents did not receive any application for the Parma qualification to be accepted under Section 6, it received only an application for the appellant to be registered. As her qualification had not been accepted by the respondent's council under Section 6(3) her application for registration could not succeed. The respondents had no discretion under the statute given the express wording of Section 6(3). At the moment of her application her qualification was not of a kind for the time being accepted by the Council, and there was no application that it should become or be treated as such. Thus, if we are wrong in concluding that the Industrial Tribunal correctly identified the comparator group, discrimination exists solely as a result of the application of a statutory provision, such statutory provision affording the respondents no discretion. The respondent is entitled in those circumstances to avail itself of the statutory defence provided by Section 41(1) of the Race Relations Act 1976 as the Industrial Tribunal held.

In the course of the hearing before the Industrial Tribunal the appellant sought to raise allegations of indirect discrimination. It is hardly surprising that that matter had not been raised at an earlier stage. The appellant plainly had considerable difficulty in formulating the necessary requirement or condition under Section 1(1)(b) of the 1976 Act.

Ultimately, however Mr Whitmore submits that the condition is as follows:

"If you are a non-EU national, without a UK qualification then in order to get over the qualification hurdle to practice as a veterinary surgeon in the United Kingdom without taking any further examinations you must have a recognised degree from one of the eight universities listed in paragraph 2 of the Council's information on Commonwealth and foreign veterinary surgeons, which is such that the proportion of any non-native speaking or non-old Commonwealth people who can comply with it is considerably smaller that the proportion of English speaking or old Commonwealth people who can comply with it, which was to the Applicant's detriment."

There was no evidence on the issue at all. In practice, it would be difficult if not impossible to obtain it, and certainly a very costly exercise to try to obtain it. The Industrial Tribunal could have dismissed the application in relation to indirect discrimination there and then on the general ground that there was no evidence to support the claim. However, the tribunal in a spirit of generosity to the appellant, and in an attempt to save costs agreed to assume there was an adverse impact on non-native speaking or non-old Commonwealth applicants for registration by the Royal College. The respondents satisfied the Industrial Tribunal that the condition was justifiable because it maintained the high standards set by UK veterinary schools, and in so doing, outweighed any [our emphasis added] discriminatory effect. The tribunal thus assumed the worst in favour of the appellant and still reached conclusions adverse to her.

We do not seek to encourage the approach taken by the Industrial Tribunal in this case, but that approach was plainly the pragmatic and practical solution to what would otherwise inevitably have been a very expensive and pointless exercise. The Industrial Tribunal is given a wide discretion on the conduct of their proceedings and, there was no possible prejudice to the appellant in the way they approached the matter in this case. There was plainly evidence before them from which they could reach the conclusions they did. For those reasons there is no matter of law arising on the way in which the Industrial Tribunal considered the question of indirect discrimination and both that and the appeal in relation to direct discrimination is dismissed for reasons we have given.

Leave to appeal refused.