United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 919_95_1701

Appeal No. EAT/919/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17th January 1996

Judgment delivered on 29th January 1996

THE HONOURABLE MR JUSTICE TUCKER

MR L D COWAN

MR R TODD

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DR VIRIK          APPELLANT

GENERAL MEDICAL COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR J N GALBRAITH- MARTEN

(of Counsel)

Mr M Javaid

Commission for Racial Equality

Elliot House

10/12/ Allington Street

London SW1E 5EH

For the Respondents MR RICHARD RUNDELL

(of Counsel)

Messrs Field Fisher Waterhouse

Solicitors

41 Vine Street

London

EC3N 2AA


 


MR JUSTICE TUCKER: This is an appeal against a decision of the Industrial Tribunal sitting at London North on 28th June 1995. The Tribunal decided on a preliminary issue that it did not have jurisdiction to consider the applications made by the Appellant, and it therefore dismissed them.

The Appellant is a doctor. He was born in Malaysia on 27th August 1950, so he is now aged 45. He obtained his medical qualification in India, and for 4 years he worked as a Houseman in that country and in Malaysia. He came to the United Kingdom in 1982, and started working as a SHO at Ealing General Hospital and then at St. Vincent's Hospital.

A doctor practising in this country is subject to the provisions of the Medical Act 1983 as administered by GMC, the Respondents. It is essential that medical practitioners be registered. Registration may be full, provisional or limited. Full registration is achieved by one of 4 routes, according to the country in which the doctor obtained his qualification. In the Appellant's case he had what is described as an acceptable overseas qualification, so he could at first obtain only a limited registration, for a maximum aggregate period of 5 years. However, he could go on to obtain a full registration if he complied with Section 25 of the Act, which provides as follows:

"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 Respondents provide advice for the making of such applications. It is contained in their Form FR8. Under the heading "Experience for full registration" the Respondents set out in Paragraph 5 the qualifications which they expect an applicant to have obtained, and they give certain additional advice.

In March 1992 the Appellant submitted his application under Section 25 for full registration supported by 2 references. Having considered the matter, on 6th August 1992 the Respondents refused the application.

By Section 29 of the Act the Appellant was given the right to require the Registrar to state in writing the reasons for the decision and to apply to a Review Board for the decision to be reviewed by the Board. He took advantage of this procedure, and an oral hearing was held on 7th May 1993. The Board was of the opinion that the decision should stand.

The refusal to grant full registration gave rise to two further applications, in addition to that made to the Review Board. The first was a complaint of Racial Discrimination, out of which the present appeal arises. The second was an application for Judicial Review, which was granted by Carnwath J., but which was refused on appeal to the Court of Appeal. A complaint of racial discrimination was also made by Dr. Khan, who was in a somewhat similar situation to the present Appellant. In that case too, the Industrial Tribunal held that it had no jurisdiction to entertain the application, a decision which was upheld by EAT and by the Court of Appeal. (See Khan v GMC [1994] IRLR 646).

The reasons why the Industrial Tribunals felt they had no jurisdiction are founded on Section 54 of the Race Relations Act, 1976. The effect of this Section is that no complaint of racial discrimination may be presented to an Industrial Tribunal if it is "a complaint under Section 12(1) of an act in respect of which an appeal, or proceedings in the nature of a appeal, may be brought under any enactment."

Section 12(l) provides as follows:

"It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in 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."

In Khan, Neill L.J. said (p.650) that the Court of Appeal were dealing with Section 12(l)(b), and held that the complaint referred to the original refusal by the Committee, who considered Dr. Khan's application under Section 25. Section 54(2) in his judgment, was directed to an application or proceedings following the first determination. Accordingly, if the complaint in the present case was a similar complaint, made under Section 12(l)(b) it is common ground that the Industrial Tribunal had no jurisdiction to entertain it.

The issues in this application are as follows.

First, whether the conduct of which the Appellant complains is conduct falling within Section 12(l)(a) of the Race Relations Act.

Secondly, if it falls within Section 12(l)(a) whether the Tribunal's jurisdiction is excluded by virtue of section 54 of the Act.

We have to construe the words of Section 12(1)(a). We agree that we must do so "bearing in mind the purpose for which the Act was passed, which was to give personal rights not to be discriminated against on racial grounds nor to be victimised". (See Wood J. in GMC v Goba [1983] ICR 885 at 893).

It is submitted on behalf of the Appellant that (1)(a) dealt with the pre grant stage of the application, and that the word "terms" in Paragraph a) has a wider meaning than the same word in paragraph (c). The submission is that in (a) the word "terms" means conditions, or pre-conditions, and includes what are described as the strict criteria contained in Paragraph 5 of FR8. Thus, it is said, the Appellant's complaint is founded not upon one overt act of direct discrimination, aimed at him as an individual, but a complaint that the rejection of full registration constituted indirect discrimination. This, it is argued, distinguishes the present appeal from that of Dr. Khan.

The second part of the submission is that if the conduct falls within sub-section (l)(a) on the basis that it relates to the requirements of FR8, then it is not an act in respect of which an appeal may be brought, and the Industrial Tribunal would have jurisdiction to hear the complaint.

In our opinion these submissions are based on a number of fallacies.

First, we do not regard Paragraph 5 of FR8 as laying down strict criteria or requirements. The document itself is headed "Advice", and the same word appears in Paragraph 5. In the Court of Appeal, Peter Gibson L.J. said that he was "satisfied that the GMC is left a discretion by the advisory guidelines", and we respectfully adopt that as a correct description.

Secondly, we are of the opinion that there is no warrant for giving different meanings to the words "terms" where they appear in paragraphs (a) and (c) of Section 12 (l). The terms referred to in (c) are the terms on which the person holds an authorization or qualification, and do not include anything else. The terms referred to in (a) are clearly intended to be the same - they are expressly stated to be "the terms on which [the authority or body] is prepared to confer on [a person] that authorization or qualification. We think that the Tribunal were correct in taking the view at paragraph 6 of their decision that the circumstances of the Appellant's claim do not fall within Section 12 (l)(a), and that the clear wording of the sub-section relates to terms imposed upon an authorization at the point that it is granted and does not relate to terms which are a precedent to it being granted.

We also agree with the view of the Industrial Tribunal set out in Paragraphs 7 and 8 of the decision as to the assistance to be derived from the comparable provisions of Section 13 of the Sex Discrimination Act 1975, and the words of Brown-Wilkinson J in The British Judo Association v Petty [1981] ICR 660.

It follows that in our opinion the Industrial Tribunal came to a correct decision. The Appellant's complaint falls not within Section 12(l)(a) but within Section 12(1)(b). There was a right of appeal from the refusal to grant him his full registration, which he exercised. Consequently the Industrial Tribunal had no jurisdiction to hear his applications and were right to dismiss them.

The appeal is accordingly dismissed.