United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS S DREW (of Counsel) Instructed by: Mr A S Weisbard Solicitor 117 Beaufort Park Falloden Way Finchley London NW11 6BY
For the Respondent	MR T COSGROVE (of Counsel) Instructed by: Mr A T B Rider Messrs Field Fisher Watershouse Solicitors 35 Vine Street London EC3N 2AA


 


MR JUSTICE BURTON: This is an appeal by Dr Kassem against the decision of the Employment Tribunal at London (North) on 16th December 1998 in favour of the Respondent, the General Medical Council ('GMC').

1. Dr Kassem had brought an Originating Application against the GMC alleging racial discrimination against the GMC arising out of his failure to be registered under the Limited Registration Scheme that is operated by the GMC in relation to those who have qualified as doctors overseas. That Originating Application was brought on by way of preliminary hearing before the Employment Tribunal to decide the question as to whether it was out of time, and the Employment Tribunal unanimously dismissed the application as out of time and hence outside its jurisdiction.
2. The circumstances of the case are as follows. Section 22 of the Medical Act 1983 allows a foreign qualified doctor such as the Appellant, who originates from Iraq, to apply for registration as a medical practitioner with 'limited registration' which, in effect means, that he can, if such application is granted, practice in this country under fairly strict supervision and with a limited ambit. Section 22 provides as follows:

"Subject to section 23(5) and 24 below, where a person satisfies the Registrar:

(a) that he has been selected for employment in the United Kingdom as a medical practitioner in one or more hospitals or other institutions approved by the General Council for the purposes of this section;

(b) that he holds, has held, or has passed the examination necessary for obtaining some acceptable overseas qualification or qualifications;

(c) that he has the necessary knowledge of English;

(d) that he is of good character; and

(e) that he had the knowledge and skill, and has acquired the experience, which is necessary for practice as a medical practitioner registered under this section and is appropriate in his case,

he shall, if the General Council think fit so to direct, be registered under this section as a medical practitioner with limited registration."

3. Certain supplementary provisions are set out in section 23 of the Act, and I read the relevant subsections:

"(1) An applicant for limited registration shall specify in his application the particular employment or the descriptions of employment for the purposes of which he wishes to be registered.

(2) What knowledge and skill and what experience is necessary for practice as a medical practitioner registered under section 22 shall be determined by the General Council.

(3) For the purposes of section 22(1)(e) above the knowledge and skill and the experience which is appropriate in the case of an applicant for registration under that section, means, subject to subsections (4) and (5) below, the knowledge and skill or the experience determined under this section which appears to the Registrar to be appropriate to the particular employment or the descriptions of employment for which the applicant desires to be registered.

(4) The General Council may in the case of any particular application for limited registration give to the Registrar a direction determining what knowledge and skill or what experience determined by the Council under subsection (2) above for the purposes of section 22(1)(e) above is appropriate in the case of the applicant, having regard to the particular employment or descriptions of employment for the purposes of which the applicant wishes to be registered or the Council considers they may grant limited registration."

4. The facts found by the Tribunal, or rather accepted by it for the purposes of this preliminary issue, appear in paragraph 10 of the decision. I shall not set out in any detail the events prior to 1994 but suffice it to say that the Appellant attempted to pass various tests which were required, to which I shall return in greater detail in a moment, by the GMC as a preliminary for registration, and failed. At 10(d) the Tribunal records this:

"(d) after his fourth failed attempt in September 1994 Dr Kassem was required to wait two years before being able to take the PLAB test again despite others being allowed to take the test after waiting a shorter period;"

Then at paragraph 10(f):

"(f) by letter dated 5 September 1996 Dr Kassem's solicitors then submitted to the GMC an application form completed by Dr Kassem and dated 23 August 1996 seeking limited registration. This was an application for limited registration in which restricted exemption from the PLAB test was sought through [what was called] the Senior Doctor route. By letter dated 6 March 1997 the GMC wrote to Dr Kassem to notify him that the application had been considered and not approved by the GMC's overseas committee;"

At paragraph 10(g):

"(g) Dr Kassem sat [for the fifth time] the PLAB test in March 1998. By letter dated 19 March 1998 the GMC informed him that he had failed the clinical problem solving examination;"

At paragraph 10(i):

"(i) Dr Kassem sat Part I of the PLAB test in June 1998. By letter dated 3 July the GMC informed him that he had failed Part I of the test due to failing the clinical problem solving examination."

5. The nature of Dr Kassem's application is that, as I have earlier indicated in general terms, he was racially discriminated against, and I shall return to this briefly later. But his complaint made before the Tribunal was that, after the number of earlier refusals and the attempt to go down the exempted route, when he finally, for the fifth time, took the PLAB test and by virtue of his failure of that test, the GMC refused him again, he was now entitled to complain before the Tribunal about the whole series of events.
6. In the course of submissions before the Tribunal, it appears that Dr Kassem confirmed to the Tribunal, as it is put in paragraph 11 of the Tribunal's decision, that "his application for limited registration dated 23 August 1996 was the only application for registration that he had ever made to the GMC." Paragraph 11 sets out the nature of the case which the Tribunal records he was then seeking to make in respect of the failure to register him in 1998, but it is one which Miss Drew, on his behalf, now says amounted to an incorrect understanding by the Tribunal of the way he was putting his case in relation to such 1998 registration attempt, and I shall say no more about it at this stage.
7. The Tribunal's conclusion was, based upon what appears to have been the submission by Dr Kassem, which I have recorded, that as his only application for registration was in 1996, the Originating Application was way out of time, when it was made in September 1998. Dr Kassem represented himself before the Tribunal and he certainly sought to contend, and did not succeed in persuading the Tribunal, that he was entitled to claim by virtue of the refusal letter of 3rd July 1998, to which I have referred, and if that indeed was the relevant date, then his application was in time.
8. Miss Drew before us today has submitted that the Tribunal were wrong to conclude that the relevant date was the 1996 application, in which case she would have difficulty in persuading the Employment Appeal Tribunal and, indeed, did not attempt to do so, that it would be just and equitable to allow the claim to be brought, which indeed the Tribunal did not consider it would have been. She has not concentrated at all on making any such submission. Her case has been that the time started to run not in 1996, but as from 3rd July 1998, and that notwithstanding the submission made by Dr Kassem below, there was indeed a refusal of an application in 1998.
9. There is no doubt at all that there was an actual application in 1996, because at that stage Dr Kassem was attempting the exemption route to which I have referred, and consequently, he filled out an application form and made an application, which I think required an accompanying fee, because he was submitting that he did not need to fulfil the requirements of section 23. He did not put in an application form in 1998 or, I anticipate, in any of the earlier years, because he had not then satisfied the preconditions of section 22.
10. The argument before us has revolved, therefore, around whether in fact what happened in 1998 did amount to a set of circumstances to which section 12 of the Race Relations Act 1976 applies. The relevant section of 1976 Act, section 12, reads as follows:

"(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is need for, or facilitates, engagement in a particular professions or trade to discriminate against a person-

…

(b) by refusing, or deliberately omitting to grant, his application for it;

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(2) In this section-

(a) "authorisation or qualification" includes recognition, registration, enrolment, approval and certification ..."

11. The relevant contentions of the parties were as follows. Miss Drew put her case, in summary, in two ways. First, she submitted, there was in fact an application by Dr Kassem in 1997/8, which was refused by the letter of 3rd July 1998. She accepted that in fact no application form was completed, but her submission was that the minute that Dr Kassem launched himself once again on the avenue by which registration would eventually be achieved, by making application in particular for his opportunity to take the PLAB tests, he was thus making an application and became an applicant. She referred to guidelines, which are issued by the GMC, called "Test for Limited Registration" in which the methodology for applying to take the PLAB test are set out, in paragraph 7 of which there is a reference to how to make applications to take the test and what documents are required; and in the course of that paragraph there is a reference to the person who is seeking to take the test as an 'applicant'. It seems to us, however, that the reference to the word 'applicant' in that paragraph is limited entirely to its context, namely someone who is applying to take the test, and no further conclusion can be drawn simply from those guidelines as to whether someone who is applying to take the test is thereby also applying to be registered. There is, however, no doubt at all, from section 22, which I have read, that qualification under the various five headings is a necessary precondition of making an application, and in due course being accepted at the discretion of the GMC, for qualification and limited registration. She submits that, at the very least, by the making of an application, as Dr Kassem did, by a form dated 23rd March 1998 to the PLAB Section of the GMC, to take a PLAB test, Dr Kassem thereby became an applicant for registration. Indeed, it might be, she submitted, that he became an applicant when he applied to take the English test which he eventually took and passed on 25th September 1997, and must therefore, at some stage, have applied for, although there is no sign of any actual application form, and he may well have applied to take the test orally.
12. The arrangement, so far as these PLAB tests are concerned, is as follows, although the system has now been changed. There was a requirement that someone who wished to qualify under section 22(1)(c) and (e) of the 1983 Act for limited registration had to pass two different sets of tests, an English test, then run by PLAB, called an International English Language Testing System, which, as I have indicated, he did pass in September 1997, and the clinical or medical aspects which were also carried out by PLAB and for which, as I have indicated, he applied on a written application form on 23rd March 1998.
13. PLAB, which stands for the Professional and Linguistic Assessment Board, is a body described in correspondence that we have seen, as the PLAB Test Section of the GMC. For the purposes of this appeal, Mr Cosgrove for the GMC has conceded that it should be regarded as the agent of and/or a part of the GMC at least for the purposes of the two submissions which Miss Drew has made before us. Consequently, Miss Drew says that, as from the date of application to PLAB, at least on 23rd March 1998, Dr Kassem became an applicant and launched his application, and that application, albeit it never concreted itself into an actual application form, was sufficient to qualify for protection under section 12 of the 1976 Act.
14. The second and alternative submission of Miss Drew was that no application needs to be identified in order for protection to be granted by section 12 of the 1976 Act. The preconditions are set under section 22, and if there is a racially discriminatory way in which those preconditions are placed as hurdles in the way of this applicant, whereby he was prevented in the end from actually filling out the form, nevertheless what occurred in relation to the eventual rejection by letter of 3rd July 1998 should be seen as the refusal of an application, and in particular the refusal of his application within the meaning of section 12 of the 1976 Act.
15. In the course of her reply submissions, Mr Parker raised with her the question as to whether she was submitting that the PLAB test certificate itself was an authorisation or qualification which was refused under section 12(1), and she did not adopt that submission; in any event, it would be a new way of putting her case which was not adopted below or, indeed, in the course of her main submissions here. Where it would have led her did not become developed, because in any event it was apparent that it would depend upon the continuation of the concession that Mr Cosgrove was prepared to make for the purposes of the two existing submissions for which he was ready; and he was not willing to continue such concession for the purposes of a submission which had never been made before, which was a perfectly understandable position. In any event, for whatever reason, Miss Drew did not adopt any such case as part of her submissions, nor, we believe, would we have concluded it just that she should do so in any event. So there were only her two submissions.
16. I turn to Mr Cosgrove's responses. So far as the first submission was concerned, he submitted that there was, in this case, no application, because there was never any application form put in; that it was impossible to suggest that there had been an earlier application simply by virtue of steps taken by Dr Kassem to seek to fulfil the requirements of section 22 in order to put himself into a position to make an application; and that to hold that starting down the avenue of one or other of those preconditions would be too uncertain if it were to be suggested that, at some stage or another, a moment should be deemed to have occurred when an application is deemed to have been put in. He is fortified in that submission by the very difficulty that Miss Drew herself had in articulating when it would be that her application would be made, and, indeed, she was reluctant, for perfectly understandable reasons, to say that it was when the oral application for the English test was made, at some unspecified date in 1997, and was only able to say that at least when the written application for the clinical test was made in March 1998 then Dr Kassem was an applicant. But it appears to us that there is very considerable force in the submission, which Mr Cosgrove made, that to allow a suggestion that there is an application deemed to be made at some stage creates or would create tremendous uncertainty.
17. As for the second submission Miss Drew made, Mr Cosgrove's submission was that it is necessary to have an application made, before it can be refused. He referred to the terms of section 12(1)(b) of the 1976 Act and emphasised that the words there used are "refusing, or deliberately omitting to grant, his application for it", "it" being, in this case, registration, authorisation or qualification, and he submits, therefore, that unless there has been an application, there cannot be a refusal of such application, particularly where it is described as "his application" rather than "an application".
18. In those circumstances, although the legislation might have provided that steps taken to prevent an applicant from making an application, or to hinder, or to impose unreasonable preconditions upon, the making of an application, might have been rendered actionable if racially discriminatory by a section of the 1976 Act. Section 12 had not done so.
19. We turn to consider our conclusions on those two submissions.

(1) We are entirely satisfied that it is not possible to say here that there was an application for registration, and that to seek to characterise a moment when an attempt to self-qualify for one of the preconditions is launched, is, in some way, the making of an application. The making of an application in this case appears to involve the filling out of a form and no doubt also the payment of a fee and is a readily identifiable moment. The occasions, however, perhaps oral, as may have been the case, of applying to take the English test, or even by the sending out of form in relation to section 22(1)(e), so far as the PLAB test is concerned, are much more difficult to identify as a moment of 'application' for the registration itself. Plainly they are the getting ready to make such an application. Some of those steps to get ready, such as collecting certificates from abroad or testimonials of good character or arranging a job to go to, under section 22(1)(a), will be necessary preconditions, but those could not amount to the making of an application. We consider that far too much uncertainty would be created if a moment which is not an application for registration is now to be deemed to be an application, simply in order to seek to render the 1976 Act applicable. We, therefore, are not satisfied by Miss Drew's first submission.

(2) In her skeleton argument Miss Drew drew our attention to Jones v Tower Boot Ltd [1996] ICR 259 at 262, per Waite LJ, and the suggestion that words of the 1976 Act should be given a broad interpretation. She also drew our attention to the more recent decision of Sawyer v Ahsan [1999] IRLR 609 to similar effect, although the facts were different and the arguments too. We accept the proposition that the 1976 Act should not be construed strictly, and if by a purposive construction a just answer can be arrived at, without doing violence to the wording of the Act, then we will properly seek to strain to adopt that construction. We turn then to the terms of section 12(1)(b):

"(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is need for, or facilitates, engagement in a particular professions or trade to discriminate against a person-

…

(b) by refusing, or deliberately omitting to grant, his application for it;

I have already referred to Mr Cosgroves's submission that, on a proper construction of those words, there must be a pre-existing application before there can be a refusal of it. Nothing in the section expressly so states, but he submits that that must be spelt out by the use of the word "his" with "application" and the use of the word "refuse" rather than perhaps the word "reject". In argument he sought to distinguish between 'rejecting an application', which he submitted could be done without actually have an application on foot, and 'refusing his application', which must mean an existing application by a particular person to which no was said. The consequence of this, in relation to the facts of this case, would be that the 3rd July 1998 letter was information that the fundamental requirement under section 23(1)(e) was not satisfied, as it had not been on many occasions in the past, and consequently an indication that the condition was bound to fail, but not a refusal of the Appellant's application. The Appellant would have had to have simply then filled out his application form the following day, notwithstanding his failure, knowing that it would be refused and that the day after that there would then be the refusal, which Mr Cosgrove accepts and asserts would then trigger a proper claim in time within the 1976 Act, of course always denying in merit in it. That is a somewhat extraordinary scenario if that be right. We do not conclude that it is right. We conclude that the words "refusing his application" can and should be read on the basis of refusing any application he might make, or rejecting any application he might make, or in terms, putting a stop to an application. It is just the same, in our view, if, for example, the GMC had written a letter to say, "you do not need to bother taking the PLAB test because we will not accept any application you may make" or if they said "you have failed the PLAB test, there is no point in your making an application" or, as in this case, "you have failed the PLAB test" (with the unspoken result that there is now no point in your making an application.) All those stand as the same consequence, and in our view amount to refusing his application. In those circumstances what the GMC did by letter of 3rd July, when they notified his failure to comply with one of the fundamental preconditions of section 22, the other four being, at that stage, satisfied, was to refuse the Appellant's application, and consequently his application to the Employment Tribunal was in time.

20. We would like to add two important riders to our conclusion that in those circumstances the appeal should be allowed to that extent. The fact that we conclude that there was a refusal of the Appellant's application on 3rd July 1998, and consequently that the application was in time, does not lead to a view on our part that he is thereby entitled to make a complaint about the earlier refusals of registration. It will be matter for the Employment Tribunal how far reference can be made to those earlier applications. It could plainly be the case that evidence about the earlier failures would be relevant to the question as to why there was the subsequent refusal. But for our part, we give no indication that it would be appropriate for the Employment Tribunal positively to allow, whether on the just and equitable ground or otherwise, reliance on those earlier applications as causes of action in themselves. Indeed, the very fact that the Appellant appears to have elected against making an application to the Employment Tribunal in 1996 suggests to us that there may well have been such a break in causation as to prevent an argument that they should all be seen as part of continuing act, such as to entitle there to be complaint, and thus recovery of any compensation, in respect to all those earlier applications, simply by virtue of the fact that the last is in time. That is emphasised by the fact that, even today, the Appellant could now make a further application and no doubt take the tests again, and that would not only of course avoid the need for any Tribunal hearing, but if the very act of making those further applications could in some way save all the earlier applications, and not only preserve them as evidence but enable otherwise out of time applications to be made based upon them, then that would emphasise the inappropriateness of the whole matter being seen as one series or act of discrimination. But that said, we do not preclude the Tribunal from reaching its own independent conclusion in that regard.
21. Secondly, we have found difficulty, even on the basis of the facts admitted for the purposes of this preliminary issue, as they must be, by reference to the Originating Application and the findings of the Tribunal, as to what case in merits the Appellant has, where the only matter which might have been a matter of obvious complaint, as set out by the Tribunal in paragraph 11, that the GMC has somehow wrongly advised the Appellant that he failed tests which in fact he had passed, is, at least on the basis of present discovery, expressly abjured by Miss Drew, on the basis that, as I earlier indicated in the course of the judgment, the Chairman misunderstood the case that was being made. Absent that case, the simple case appears to be made that, because Dr Kassem is indeed able and qualified in his own mind, he must have been discriminated against racially by his very continued failure in the various tests. That, if that is the only case, is not an easy case to be supported or substantiated, and it may well be that the Employment Tribunal would consider it appropriate, on the application no doubt of the Respondent, for their to be a pre-trial review to see whether there is an arguable case on the part of the Appellant to go forward to a full hearing. But, again, that is not a matter for this Tribunal. We simply conclude that the Tribunal was wrong to conclude that the application based upon the refusal letter of 3rd July 1998 was out of time.
22. Legal Aid taxation is granted to the Appellant.