United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T RIGBY (Of Counsel) Instructed by: British Medical Association BMA House Tavistock Square London WC1H 9JP


 


MR RECORDER LANGSTAFF QC

1. This is a Preliminary Hearing in an appeal against the decision of the Employment Tribunal sitting in Manchester. By Extended Reasons promulgated on 24 September 2001 the Tribunal decided that the Respondent, the BMA had discriminated against the Applicant Dr Chaudhary.
2. The facts arose out of Dr Chaudhary's early career in training as a urologist in England. As the Tribunal recorded at paragraph 25 on 16 December 1991 he obtained a post in North Manchester as a Registrar in Urology. He did so after the post had been advertised as having been approved by the Royal College. It was described as offering excellent training and indeed he, it appears, thought that the post had approval of the specialist training authority necessary for him ultimately to gain preferment in his chosen career. To simplify the facts, we hope not unfairly, it later emerged that those responsible for recognition of the post as a suitable training post denied that it had the approval which was required. He sought the assistance of his trade union and professional association, the Appellant, whom I shall call the BMA in order to pursue a claim against the Postgraduate Dean, the Royal College, and the specialist training authority that they had been discriminating against him on racial grounds. He did not get it.
3. The Tribunal dismissed his claim that there had been direct discrimination against him by the BMA for its failure to provide that assistance. However at paragraph 131 it said this:

"The applicant submitted in the alternative that the respondents' attitude was that the Postgraduate Dean, the Royal College and the STA could not be discriminating on racial grounds in making their decisions and that that was applying a requirement or condition to race discrimination claims by members that in order to achieve support the claim should not allege race discrimination against those bodies. We have concluded that the respondents refused to recognise the possibility that the Royal Colleges, the STA, Postgraduate Dean or the SACs (that is the Specialist Advisory Committees) might discriminate on racial grounds. We do find that that attitude meant that anyone producing that sort of claim did not have it evaluated or considered in reality. We come to the conclusion that the respondents have therefore imposed a requirement or condition on claims from members that in order to be considered they should not include a claim that the Royal Colleges, Postgraduate Dean or the STA have discriminated on racial grounds in applying their criteria and making their decisions. We think it may well not be a deliberate policy but a result of the attitude of mind of those who had to make decisions on behalf of the respondents. It did persist despite indications to them by others that race discrimination could exist in that form."

4. That paragraph is central to the arguments that we have had addressed to us on behalf of the BMA by Mr Rigby. We consider that it gives rise to a number of arguable grounds for appeal, which require to be explored further between the parties. In particular, what is identified as ground 9(a)(2) in the Notice of Appeal underneath the heading 'The failure to properly apply section 1(9)(b) of the RRA 1996,' appears to us to raise arguable questions. However Mr Rigby's argument went further. He contended that it was also arguable that the Tribunal was not entitled to come to the conclusion it expressed in paragraph 131 that there was a requirement or condition of the sort identified.
5. In argument this morning he submitted that although this was a finding of fact it was nonetheless arguably perverse. He said it was perverse for a number of reasons both positive and negative. Negatively he suggested there was no evidence to support it. It was an inference. That inference could not properly be drawn. Moreover it could not be drawn, he suggested, in the absence of any suggestion that it was decisive of Dr Chaudhary's claims against the bodies identified. Positively he suggested that a condition or requirement which attached to assistance from the BMA had (in evidence) been identified. That condition was whether or not the claim had a reasonable prospect of success. Dr Chaudhary's proposed application failed on that hurdle. Accordingly he submitted there was no ground for nor space for another condition or requirement of the sort which the Tribunal identified. He suggested that it was material to the identification of the condition or requirement that for instance it could be shown that he, Dr Chaudhary had reasonable prospects of success in his proposed actions or applications against the Postgraduate Dean, the Royal Colleges or the Specialist Training Authority.
6. We have reviewed the decision in the light of the submissions which he has made. We bear in mind that the approach which the Tribunal was taking was in the light of the questions posed by section 1 of the Race Relation Act 1976. They were considering a claim of indirect discrimination in this part of the decision. Section 1(1)(b) of the 1976 Act says that such discrimination exists where:

"He (that is the person discriminating) applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but -

(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it."

7. It will be seen that a requirement or condition is a matter for an Employment Tribunal to identify. The identification of such a requirement or condition does not establish discrimination unless the requirements as to disproportionate impact upon the persons of the racial group considered can also be answered favourably to the claimant. There has to be no justification for it, and it must cause a detriment. However, we have to focus for this part of the appeal simply on whether or not it was open to the Employment Tribunal to identify a condition or requirement of the sort they did.
8. In order to determine that it was not so open we would have to find that there was no evidence or no material upon which the Tribunal could identify such a condition or requirement. It is certain that in this case there was no such express requirement. However, the Tribunal found one to be implied. We note that there was no evidence before the Tribunal that the BMA had supported any claim in respect of the Postgraduate Dean, The Royal College or the SDA alleging discrimination on racial grounds in making their decisions.
9. We hope that we do sufficient justice to the very extensive reasons if we say that they reflect evidence which was heard over some 15 days of hearing in March, May and June 2001 and that this Employment Tribunal saw the witnesses and listened to the questioning. We note that at the outset the Tribunal had posed itself the questions which are relevant to this issue and in paragraph 15 identified relevant categories of evidence:

(i) evidence of the BMA failing to identify a race discrimination claim which could be pursued against the Royal Colleges, an SAC, the STA or Postgraduate Dean.

(iii) Evidence of the respondents rejecting the validity of a race discrimination claim against the Royal Colleges, SACs, STA or Postgraduate Deans without proper enquiry into it and

(vi) Evidence of a policy not to assist doctors in a given situation if it was similar to the Applicant's position.

(vii) Evidence of the respondents advising a member against alleging race discrimination for an inadequate reason, and

(vii) refusing to support a member in his or her appeal against an STA decision and the reasons for that failure to support.

10. Those points of focus were directed to evidence of the sort which would enable the Tribunal if it felt so minded to identify a condition or requirement such as that which it did. Given that focus, given the fact that no support for any claim of discrimination had been identified and given the findings of fact together with the Employment Tribunal's advantage of seeing and hearing the witnesses we have concluded that the Tribunal was entitled to reach the conclusion it did. The fact that another Tribunal might have reached a very different conclusion is beside the point. We consider it also beside the point that having identified such a requirement or condition may in the ultimate resolution of the case not avail Dr Chaudhary given that it remains for him to show that the application of such a requirement or condition was to his detriment, and that the BMA will be contending that they would not in any event by reason of the application of another condition or requirement had given him the support which he desired. But that is not the focus of the present argument. Accordingly we reject as having no arguable force what is contained in the notice of appeal paragraph 9(a)(1).
11. We indicated at the outset of today's hearing that we are minded to grant leave to the BMA to argue what is contained at paragraph 9(b) in respect of victimisation and at 9(c) in respect of time limits. Those, it seems to us give rise to arguable points of law. Accordingly, on the issues of the application of section 1(1)(b), to which ground 9(a)(2) is directed and the issues raised by 9(b) and 9(c) we give permission for the matter to proceed to a full hearing. In respect of the other issues comprehended by the notice of appeal we reject the grounds of appeal here and now.
12. It follows that directions are required as to the hearing. We indicated that we would consider this with the assistance both of Mr Rigby and having seen a letter from Dr Chaudhary and noting that he indeed is here in person today.