United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B UDUJE (of Counsel) Messrs Dalton Barrett Solicitors 50 Britton Street London EC1M 5NA
For the Respondents	MR R RUNDELL (of Counsel) Messrs Field Fisher Waterhouse Solicitors 41 Vine Street London EC3N 2AA


 


JUDGE PETER CLARK: These two appeals come before us in the following circumstances. Dr Reza, the appellant, commenced a general medical practice in Woolwich in 1978. In March 1990 he was found guilty of serious professional misconduct by the Professional Conduct Committee ["PCC"] of the respondent, the General Medical Council ["GMC"]. As a result his name was erased from the register and he was immediately suspended from practice. He appealed unsuccessfully, first to the High Court in respect of suspension and subsequently to the Privy Council, which dismissed his appeal in March 1991. His name was formally erased from the register on 20th March 1991.

Thereafter he made three unsuccessful applications for restoration to the register. Those applications were refused on 26th July 1993, 25th July 1994 and 24th July 1995.

On 27th September 1994 he presented his first complaint alleging racial discrimination against the GMC in respect of his erasure from the register. That complaint(21433/94) was dismissed by an Industrial Tribunal.

On 3rd October 1994 he presented a further complaint against the GMC and Bexley and Greenwich FHSA alleging racial discrimination and unfair dismissal (56051/94) and on 1st August 1995 issued his final Originating Application against those respondents (45465/95).

By various interlocutory orders, the claim against the FHSA was dismissed and the applications 56051/94 and 45465/95 were consolidated for the purpose of determining a single issue, identified as follows: whether in considering the appellant's applications for restoration to the register in 1994 and 1995 the PCC treated him less favourably, on racial grounds, than they treat or would treat other persons not of the same racial group as the appellant.

For the purpose of determining that issue the parties filed consolidated pleadings; the consolidated Originating Application was dated 26th October and the Notice of Appearance 18th November 1996.

A full hearing of the defined issue was listed before the London (South) Industrial Tribunal for four days commencing on 9th December 1996. On that date the parties came before an Industrial Tribunal chaired by Mr G H K Meeran, and the appellant, who then appeared in person, renewed his earlier unsuccessful application to postpone the proceedings, together with applications to strike out the GMC's Notice of Appearance on the grounds that the respondent had failed to comply with the time-table laid down for certain interlocutory steps, following a directions hearing held on 28th May 1996, by an order dated 13th June 1996; to debar the respondent from defending the proceedings altogether and finally for the respondent to be fined; that last application was treated as an application for costs under Rule 12 of the Industrial Tribunal Rules of Procedure.

For the reasons given by the Industrial Tribunal and dated 11th December 1996 those applications were all dismissed. It is against that order that the first appeal (EAT/1365/96) was brought.

Having dismissed those applications the tribunal proceeded to hear the substantive issue and by a decision with extended reasons dated 15th August 1997 that issue was resolved in favour of the respondent and the consolidated applications were dismissed. Against that decision the appellant brings his second appeal (EAT/1184/97).

The First Appeal

Procedurally, the first appeal was listed before us for a full inter partes hearing. Both sides were represented by counsel, Mr Uduje appearing for the appellant and Mr Rundell for the respondent. At the outset Mr Uduje indicated that this appeal was abandoned. Accordingly, without objection from Mr Rundell, we dismiss that appeal on withdrawal by the appellant.

The Second Appeal

This appeal was listed for an ex parte preliminary hearing. Under our normal procedure a respondent is permitted to attend such a hearing, but without the right to make representations.

In the particular circumstances of these cases, where Counsel was instructed to appear on behalf of the respondent in the first appeal, Mr Rundell applied to take part in the hearing. No strong objection was taken to this course by Mr Uduje , although he made the valid point that he had received no indication in advance of the hearing of what Mr Rundell might say. There is no provision under the ex parte preliminary hearing procedure for a respondent to lodge a skeleton argument or indeed an Answer.

We bore that stricture in mind in allowing Mr Rundell to play a limited part in the proceedings, confined in the event to providing factual assistance as to the conduct of the substantive hearing below, at which Mr Rundell appeared as Counsel for the respondent.

The principal point which Mr Uduje wishes to take at a full hearing of this appeal is as follows. He contends that the Industrial Tribunal failed to apply the guidance laid down by Neill LJ in King v Great Britain China Centre [1992] ICR 516, which the Industrial Tribunal set out in paragraph 12(b) of their reasons, as subsequently approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36.

His attack is directed to the findings made by inference by the tribunal at paragraph 13(f) of their reasons. By way of background he points to the answers given by the respondent in response to questions ordered by the Industrial Tribunal under an Order dated 28th November 1995, as varied, on the respondent's application, by a further Order dated 14th December 1995.

The three questions initially ordered by the tribunal on 28th November 1995 were as follows:

"1. What are the procedures adopted by the PCC in considering an application for restoration to the Register.

2. What are the criteria used by the PCC in considering and deciding such an application.

3. Why was Dr Reza's application for restoration of his name to the register refused:

(a) In July 1994?

(b) In July 1995?"

Subsequently, question 3 was rescinded by the Order dated 14th December 1995.

In answer to the second question it was the respondent's case, set out in a document dated 11th December 1995, that the PCC had a very wide discretion in considering applications for restoration to the register, and that the guidance given to the profession is a pamphlet entitled "Professional Conduct and Discipline; Fitness to Practice" included the following, at paragraph 30:

"The Committee determines every application on its merits, having regard among other considerations to the nature and gravity of the original offence, the length of time since erasure, and the conduct of the applicant in the interval."

The PCC does not give reasons for its decision to refuse applications for restoration to the register. No evidence was called before the tribunal from among those who had sat on the relevant committees which heard the appellant's applications for restoration in 1994 and 1995.

In these circumstances Mr Uduje submitted that it was not open to the tribunal to infer, as appears from paragraph 13(f) of their reasons, that the criteria for determining whether or not an application for restoration succeeds included the following:

(1) Whether the individual has shown remorse or contrition for his original misconduct as found at the erasure stage.

(2) Whether he has kept up to date with medical knowledge since erasure.

(3) Whether he can produce references or testimonials from professional colleagues.

(4) Whether he has shown sufficient insight into his previous actions and has provided a clear indication that he would conduct himself properly in the future if his name was restored to the register.

Building on that premise, he submits that the tribunal failed to apply the guidance in the King case in that the respondent gave no explanation for its decision not to restore the appellant to the register, and it was not for the tribunal to provide such reasons for the respondent. In these circumstances it was impermissible for the tribunal to conclude, at paragraph 14 of their reasons, that there was no evidence that the appellant was treated less favourably on racial grounds, particularly where the tribunal went on, at paragraph 14(a)-(c), to give informal guidance to the GMC on matters which, Mr Uduje submitted, demonstrated the possibility of unlawful racial discrimination in the instant case.

It is at this stage that we have found the submissions of Mr Rundell, who conducted the respondent's case below, to be of assistance. He points out that pursuant to order, the respondent gave extensive discovery in relation to 43 cases of erasure over a ten year period. Of these former doctors, 19 applied for restoration, some, like the appellant on more than one occasion. Consequently there were some 27 transcripts of restoration public hearings. From the lines of enquiry at those hearings the respondent advanced certain criteria, including those identified by the tribunal in paragraph 13(f) of their reasons, which were taken into account, where appropriate by the panels hearing such applications. Indeed, these criteria were set out in the outline written submissions prepared by Mr Rundell and placed before the Industrial Tribunal.

In these circumstances, it seems to us, there was ample evidence, both documentary and oral, put before the Industrial Tribunal to entitle them to draw the inferences which appear at paragraph 13(f).

It follows from those findings, in our judgment, that the tribunal was entitled to conclude that the appellant had failed to adduce any evidence, whether direct or by inference, of less favourable treatment on racial grounds, since there was no true successful comparator whom it could be shown had been more favourably treated on racial grounds, as opposed to the merits of his application for restoration.

Having rejected Mr Uduje's principal submission, we turn next to his argument on perversity.

He submits that the tribunal's conclusion that no less favourable treatment on racial grounds was shown, was perverse, given the lack of published criteria for determining restoration applications. He also submits that the tribunal was wrong to focus on the appellant's lack of contrition (he has always adamantly denied the original charges of misconduct), that being an irrelevant factor. We cannot agree. The question of whether an applicant for restoration has insight into his original wrongdoing was, the tribunal permissibly found, a material factor in the PCC's determination of applications for restoration, and is untainted by racial considerations.

Similarly, we do not consider that the tribunal took into account an irrelevant factor in criticising the appellant for focusing on the original decision on erasure when applying for restoration.

In all the circumstances, in whatever way the point it put, we can see no grounds for interfering with this tribunal's decision on grounds of perversity, as it was explained by Mummery J in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 430, 433.

Accordingly, we have reached the conclusion that this appeal discloses no arguable point of law and must be dismissed at this stage.

An application by Mr Uduje on behalf of the appellant for leave to appeal to the Court of Appeal refused. Legal Aid taxation granted.