United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C URUAKPA (Representative)
For the Respondent	MR M HUNT (of Counsel) Instructed By: Messrs Hodge Jones & Allen Solicitors Twyman House 31-39 Camden Road London NW1 9LR


 


JUDGE J ALTMAN:

1. This is an appeal from the Decision of the Industrial Tribunal (as it then was) sitting at London (South) on 28 May 1998, when the Chairman sitting alone found that the complaint of the Appellant of unlawful race discrimination had no prospect of success and on that ground the complaint was struck out on the basis that it was frivolous.
2. The matter came before the Employment Appeal Tribunal before Mr Justice Lindsay and two lay members by way of preliminary hearing, when two grounds of appeal were identified.
3. This appeal arises out of the refusal to admit the Appellant to the Register of Veterinary Surgeons in England and Wales through the Royal College of Veterinary Surgeons. The argument put forward for consideration at the full hearing was, whether it could be argued that paragraph 5 of the Schedule to The Veterinary Surgeon (Examination of Commonwealth and Foreign Candidates) Regulations 1967 gave a discretion to the Respondents to consider the application for registration of someone in the position of the Appellant.
4. It was found by the Employment Appeal Tribunal that Section 41 of the Race Relations Act 1976 gives a statutory defence to a public body that acts, as it is bound to do, by statute. Accordingly, if the Respondents are not so bound and are entitled to exercise their discretion, then in that the decision of the Industrial Tribunal may arguably be wrong.
5. The matter also comes before us by way of appeal from the very order of the Industrial Tribunal, it being said that the Tribunal did not have jurisdiction to dismiss on the ground that an application was bound to fail, it being said that the Regulation which provides for a deposit to be paid where there are no reasonable prospects of success, is the relevant order that should have been considered.
6. Finally, we have given leave to amend the Notice of Appeal to allege a breach of Article 6 contained in the Human Rights Act on the ground that there was not equality of arms, the claim being that the Appellant did not have legal representation whereas the Respondent did.
7. We deal first with the consideration by the Industrial Tribunal of the argument in relation to their conclusion that a defence under Section 41 was in effect bound to succeed. It appears that the Appellant has never passed or sat the qualifying examinations of the Royal College of Veterinary Surgeons. She has a First Degree from Nigeria and a Second Masters Degree from Queensland. The relevant statutory provisions are contained primarily in the Veterinary Surgeons Act 1966 and Regulations made thereunder to which we have just referred. Essentially, the Statute provides that in order to be a Veterinary Surgeon a candidate must be examined to success by the Respondents and it provides for a category of exemptions from such requirement and an alternative route to qualifications in Section 6 of the Act, the marginal note of which refers to "Qualification for registration as a Commonwealth or foreign practitioner". It provides as follows:

"6(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 that 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.

(4) The Council may make regulations as to the examinations to be held for the purposes of this section, and may include in the regulations provisions for withdrawing the right to sit for any such examinations from a person who has not paid the fee prescribed … or from a person who has previously failed to pass such examinations … ."

8. The Appellant argued that that section provided a discretion on the part of the Respondents to treat her qualifications as being adequate for admission to the Register without sitting the Respondents' examinations. The Respondents argue that they have no discretion under that section.
9. It seems to us that the problems and difficulties associated in arguing this case stem in large part from the fact that the Respondents fulfil a number of different functions. One function is to determine those qualifications in foreign universities and other institutions which should provide exemption under section 6. A second function of the Respondents is to hold and administer examinations and to deal with the payment of fees and possible exemptions within the context of the holding of those examinations.
10. We have been referred to a number of authorities and, in particular, in the context of section 6(3) to the judgment of Buxton LJ delivered on 7 March 2000 in the Appellant's application for leave to move for judicial review on the extent to which the section can exempt someone from the requirement to take examinations. In paragraph 9 he refers in that context to paragraph 5 of the Regulations (to which I will turn). It seems to us on a simple reading of section 6, whilst there may be a broad discretion which the Council have in their role of determining which foreign universities are admissible, there is no discretion within that section in the individual case to treat a particular person as having the appropriate qualifications. Either the person has sat examinations in this country or the qualification is one which is accepted for the time being by the Council as such a qualification. Accordingly, it seems to us that there is no discretion within this Appellant's case, in the way that it was argued as being purely in relating to her situation, for the exercise of such discretion by the Tribunal and accordingly the decision of the Employment Appeal Tribunal that there was bound to be a defence under section 41, in relation to section 6, seems to us was bound to succeed.
11. That does not end the matter because the question is also dealt with in the Regulations to which we have been referred and in paragraph 5 of the Schedule. That provides as follows:

"5(1) The statutory examination shall normally be held once in every year and shall be designed to test the candidate's general veterinary knowledge in surgery/medicine/reproduction and animal health. It shall include:

(a) written, oral and practical examinations in each of the aforementioned subjects;

and

(b) clinical examinations in surgery, medicine and reproduction.

Provided that the Council may in the case of any candidate exempt the candidates from any of the examinations mentioned in sub-paragraphs (a) and (b) of this paragraph.

(2) The statutory examination or any part thereof may be held by the Council or other examining body under arrangements made by the Council."

12. It is argued by the Appellant that the Respondents have a discretion within that Regulation to exempt a candidate from sitting the examination and effectively giving a free pass, as it were, to qualification. Therefore, it is said, even though the Appellant may not have the exemptions under the statute which enable her to avoid having to sit the examinations, the Regulations in such a case give a further opportunity to avoid the need to sit examinations and the Respondents have a discretion to exercise. Of course, whether the discretion is exercised in any particular case, it is said, is a matter entirely for the Council and the Appellant may have a strenuous hill to climb in order to prove it. But, the argument runs, it cannot be said that there is no discretion and that the Regulations dictate the course that the Respondents must follow in refusing admission to the Appellant so that this matter should not have been dismissed on the ground that it was bound to fail.
13. We have been asked to assess the meaning of these Regulations by reference to other paragraphs within those regulations and by decided authority. Before turning to authority we have considered the provisions of the Regulations themselves. The terminology of Regulation 6, which we were asked to consider, is slightly different and to a different purpose and it does not seem to us that it assists us. The terminology of Regulation 9 is that it simply deals with the forfeiting of fees. Even though someone may not sit the whole of an examination because of some exemption, it simply, it seems to us, is a provision to clarify the payment of fees in certain circumstances and that again does not seem to us to assist interpretation.
14. However, we are persuaded by the argument that these Regulations must be seen as facilitating Regulations that are for the purpose of carrying out examinations under the umbrella of the main statutory scheme, and the main statutory scheme contained in the Act makes it clear that there are only two roads to qualification, either the examination or an exemption based upon foreign qualification that is approved.
15. Accordingly, it seems to us that when we look at Regulation 5, we must look at it in the context of the function of the Respondents, not in the general decisions as to whether to accept particular qualifications, but in the context of the body being the body which administers examinations. It is within that context that there is a discretion to exempt a candidate from "any of the examinations".
16. We are prepared to contemplate that there may be cases where simply within the context of the taking of examinations circumstances may arise where an examining body would find particular circumstances which should lead them to exempt a person from each examination with the practical effect that there is exemption from all of them. We have heard of one particular case, that of a Dr Burr-Nyberg, who was, in effect, exempted and we have seen a document which we are told emanates from the Respondents which indicates that they exercised a discretion under paragraph 5 to exempt Dr Burr-Nyberg. However, we are satisfied that that seems to have been in the whole context of administering the examinations against the background of somebody who had sat twice and failed, had been practising it seems by mistake, so far as authorities were concerned for some years, but whose track record was known about. But the case we have before us is not to do with the Respondents as a body administering the examinations but to do with a body refusing to admit somebody who did not have the statutory qualifications, either of exam or foreign qualification, and it does not seem to us that it would make sense for the whole of the statutory framework to be capable of being upset by the Regulations. Indeed, the interpretation contended for by the Appellant seems to us to be ultra vires the Regulations as being in conflict with the provisions of the Statute. That is outside the powers set for the regulation of examinations. That is the only way we can make sense of both the Regulations and the Statute.
17. Accordingly, we find that whilst the Industrial Tribunal did not specifically address that aspect, as we were asked to do by the preliminary hearing because it is suggested that the Regulations provided another means of access, we have come to the conclusion that the sort of factual situation envisaged there is not the one before us and that therefore this appeal must fail in relation to that.
18. We have drawn support for our conclusions and assistance in reaching them from a number of previous cases. This Appellant, possibly at the invitation of the Industrial Tribunal Chairman who said that the remedy for certain matters lay elsewhere, has taken proceedings in the Divisional Court and we have been assisted by two judgments, one of which we assume, although we have not seen the drawn judgment, was by Buxton LJ who refused leave for judicial review on 7 March 2000 and to which I have already referred. He said in paragraph 9:

"9 I tend to view … that the college has no power to exempt someone from taking the whole of the examination if they are someone who does not otherwise qualify for registration. The power is to be found in … paragraph 5(1). In my judgment, that is a power only to exempt somebody who has in any event to take the examinations from sitting some part thereof; an arrangement that again is familiar in other professional organisations. It does not give the college power to exempt someone from the whole examination. If it did, it would be expressed in very different terms; indeed the concept of requiring someone to take the examination and then exempting that person from the whole of it seems to me not to make much sense."

19. Again, we can envisage that perhaps there is not a distinction of kind between the word "whole" or "part" and there may be circumstances in which there is exemption from the examination but it is the exemption from an examination of someone who is in a position to present themselves for it. It is quite clearly there decided that it is not an exemption which would circumvent all requirements of Section 6 and for that reason the application for judicial review was refused.
20. Also, it is right to point out that in relation to other matters (to which I will refer) that in paragraph 14, Buxton LJ points out that it was the Appellant's claim that the Masters Degree that she had from the University of Queensland was in fact a recognised degree; it was not the opposite contention now made that there was discrimination on the part of the Respondents for failing to include it in the accepted qualifications. The next case was a decision of Jackson J that says this:

"2 … the applicant seeks to attack a decision made by the respondent on 4 April 2000 to refuse registration to the applicant. The applicant's essential argument in this case is that she has an MVSC degree from the University of Queensland in Australia and that that ought to be regarded as an accepted qualification which would entitle her to registration in this country.

3. … I have come to the conclusion that these proposed proceedings are without any prospect of success. The respondent, in the exercise of its discretion under section 6(3) of the Veterinary Surgeons Act 1966 does not accept the MVSC degree from the University of Queensland in Australia as an accepted qualification. … I am afraid that I see no possible basis upon which either the decision or its reasons may be challenged. …"

21. We are confirmed in our decision also by the judgment of Butterfield J in Choux–v-The Royal College of Veterinary Surgeons (EAT/668/95) which was referred to in the Decision of the Industrial Tribunal.
22. For all those reasons therefore we have come to the conclusion that insofar as there is any discretion in Regulation 5, it cannot apply in the circumstances that were argued for by this Appellant, and that under Section 6, subject to that which I now turn, there is no discretion on the part of the Respondents at all. However, it seems to us, there must be a discretion on the part of the Respondents as to those foreign universities which it is prepared to accept and there were some rather unsatisfactory features of the presentation of the case and some uncertainty as to whether there is a published list or not of those degrees that are acceptable, although it is clear that the procedures which are carefully investigated in each case before a university is put on the list means that there must be, at the very least, an internal record of those which are approved.
23. However, as with Buxton LJ it is quite clear to us that that issue was not raised. Indeed, were that issue to have been raised as a ground of discrimination, we cannot see how it could have been argued that there were other people with comparable qualifications to the Appellant from Queensland that had been discriminated in favour of by being accepted. Secondly, when the Industrial Tribunal set out the arguments in the case they set out the claim of the Appellant in paragraph 6, that by refusing to recognise her professional qualifications and enter her name on the Register the Respondents had discriminated against her. The submission recorded at paragraph 16 was that the Respondents discriminate against holders of qualifications other than recognised European qualifications, another matter that has been dealt with by decided cases. But in their conclusions the Industrial Tribunal in paragraph 18 say:

"18 Whether the [Appellant's] Masters Degree from Queensland University satisfies section 6(3) of the 1966 Act is not a matter for an Industrial Tribunal and is not a question of discrimination. …"

24. It seems to us that that follows from the arguments that were then addressed and finally, in paragraph 22, it is recorded that the Appellant does not raise any argument that the Respondents are applying any requirement or condition which is indirectly discriminatory. This is possibly because identifying the requirement or condition would be as difficult as experienced by Mr Whitmore in the case of Choux–v-The Royal College of Veterinary Surgeons. They go on to say that even if that could be raised it would not survive Section 41.
25. It is quite clear to us, therefore, because of the way in which the Appellant's case was argued before the Tribunal about her qualifications and comparator being Dr Burr-Nyberg and her saying that others with her qualifications had been accepted, that there was no general attack on the absence from the Respondents' Register of those particular qualifications she had from Nigeria and Queensland. Some evidence has been put before us today about the approach of the Respondents to American universities to be contrasted, the Appellant would say, with those of Nigeria and Queensland, but that was not evidence before the Industrial Tribunal and, as with Buxton LJ, we are satisfied that this was not part of the Appellant's complaint and therefore it cannot be opened at this stage. This is even though we may differ technically with the decision of the Industrial Tribunal that were there to be a criticism with some substance that the Respondents were being discriminatory in the countries whose universities they selected for exemption that could, it seems to us, found the basis of an individual's application to a Tribunal if, as a result of that policy the individual suffered detriment. However, that is clearly not part of this case.
26. We turn now to the question of the jurisdiction of the Industrial Tribunal. Whilst it is true that in the question they asked in paragraph 8, the Industrial Tribunal asked themselves whether the Appellant had a reasonable prospect of success, it is clear that that is not the basis of their subsequent decision. The basis of their decision they expressed as "being bound to fail" and the whole tenor of the decision is that Section 41 was bound to succeed as a defence because the Respondents were simply acting in the exercise of their statutory responsibilities without discretion. It is accepted that, even before the change in the rules, the Industrial Tribunal had power to strike out as vexatious or frivolous (it does not seem to us to matter which word is used) claims which were bound to fail and that is what the Industrial Tribunal did in this case. The position would, of course, have been different had they purported in reality to strike out because there was no reasonable prospect of success.
27. Finally, the claim is made under Article 6 of the Human Rights Act that there was no equality of arms in the context of this case because the Appellant did not have legal representation. We accept that they were not the same arms and were the Regulations to provide that everyone should be entitled to the same degree of representation then, of course, the decision may have been different. However, we are satisfied that the Appellant, through her husband representing her before the Industrial Tribunal, had a full opportunity to put forward the issues that were being raised in a detailed and coherent way and that they had the support of the Chairman, no doubt, as many unrepresented litigants do have.
28. We must assess the question of equality of arms, it seems to us, in the context of the way in which Industrial Tribunals are established and that the rôle of the Chairman is also established. It requires a degree of informality; it is geared by the formulation of its rules and process of procedure to facilitate individuals without representation coming before it and they, in that capacity, are encouraged. The fact that another party may be permitted to have representation does not, it seems to us, diminish the entitlement and ability of an individual to have a fair hearing, to put their case fairly without its being unduly prejudiced in any way.
29. Furthermore, it is incumbent upon a Chairman to assist a party that is unrepresented and that, in itself, provides sufficient balance it seems to us to any inbalance which there may be as a result of differing forms of representation.
30. Accordingly, we are satisfied that there was a fair hearing in this case and that the Appellant had a full and fair opportunity of putting her case in a way which was comprehensive and took every point that could reasonably have been taken. The failing of this appeal is not due in any way to any failing on the part of the representative or the arguments put forward by the Tribunal. The failing is simply that the law does not permit the arguments that the Appellant wished to be put forward. Accordingly, we find that there was no error of law in the decision of the Industrial Tribunal and this appeal must be dismissed.