United Kingdom Employment Appeal Tribunal

SUMMARY

Race Discrimination – Discrimination by other bodies

Practice and Procedure – Amendment

(a) The Employment Tribunal correctly held it had no jurisdiction to hear Claimant's case brought under the Race Relations Act 1976 s12 against the General Medical Council as a qualifying body.

(b) If it did, and if it were necessary to decide the point, the claim would be excluded by s54 as there is an alternative "appeal" mechanism.

(c) The Claimant was permitted to amend his claim to add a claim of harassment if he could provide particulars. He did so in a form which satisfied a regional Chairman. There is no error and the General Medical Council's appeal was dismissed.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about preliminary rulings in claims of race discrimination and harassment by a body giving medical qualifications (a qualifications body). I will refer to the parties as the Claimant, Dr Zaman as he prefers to be called, and the Respondent, the General Medical Council (GMC).

Introduction

2. These are appeals by the Claimant and the Respondent in those proceedings against the judgment of an Employment Tribunal (ET) Chairman, Miss R A Lester (sitting alone) at Stratford East at a pre-hearing review (PHR) registered with reasons on 28 March 2006. It was followed by a case management discussion (CMD) and a review, by Mr I S Lamb, Regional Chairman registered with reasons on 29 August 2006. He made orders which were suspended pending the appeal by the Claimant and those orders are the subject of an appeal by the Respondent.
3. The Claimant was represented there and here by his friend Dr Rajendra Chaudhary, who has expressly reminded me with his every submission that he is not a lawyer; but he is an experienced litigator and, from my hearing, an accomplished lay advocate who has presented the issues impeccably for his friend. The Respondent was legally represented throughout, today in the shape of Mr Ivan Hare, of Counsel.
4. As long ago as June 2004 the Claimant claimed direct and indirect race discrimination and victimisation. He was subsequently given permission to add claims of harassment. The Respondent denied the claims on the merits and took jurisdiction points.

The issues

5. The essential issues - as defined by Chairmen, Ms Gilbert, Miss Lester and then by Mr Lamb - their answers, and my judgment on them as now live on appeal, were these:

(a) Has the ET jurisdiction to hear the Claimant's case brought under the Race Relations Act 1976 s12 against the Respondent as a qualifications body? Miss Lester said no; I agree.

(b) If it does, is it excluded by s54, as there is an alternative appeal mechanism? Miss Lester did not finally decide the point but would have said no. I do not need to decide it either but I would be minded to take the same approach. Thus the Claimant's appeal will be dismissed.

(c) Should the Claimant be permitted to amend his claim to add a claim of harassment? Miss Lester said he could if he provided particulars. He did so, in a form which satisfied Mr Lamb. I see no error. Rejecting what I will describe as Mr Hare's new point, the Respondent's appeal will be dismissed.

EAT Directions

6. Directions sending the appeals to a preliminary hearing were given in chambers by HHJ Birtles, and to this full hearing by HHJ Ansell and members. They make it plain that the first two of the four grounds of appeal were to be heard; the fourth was not. Having read the layout and the headings in the Notice of Appeal and heard about the way the case was conducted that day, it is clear to me that the third ground was to proceed no further.

The legislation

7. The relevant provisions of the legislation are the Race Relations Act 1976 s1(1)(a) which outlaws direct discrimination on racial grounds. Section 3A, inserted in 2003, makes harassment on racial grounds unlawful. Section 12 applies the Act to qualifications bodies in the following way:

"12 Qualifying bodies

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

…

(c) by withdrawing it from him or varying the terms on which he holds it.

(1A) It is unlawful for an authority or body to which subsection (1) applies, in relation to an authorisation or qualification conferred by it, to subject to harassment a person who holds or applies for such an authorisation or qualification.

(2) In this section--

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

8. Section 54(1) gives jurisdiction to employment tribunals, but this is subject to s54(2) which provides the following:

"(2) Subsection (1) does not apply to a complaint under section 12(1) of an act in respect of which an appeal, or proceedings in the nature of an appeal, may be brought under any enactment, …"

9. The scope for making applications in the High Court for judicial review is regulated by the s31 Supreme Courts (Senior Courts) Act 1981 which provides for applications to be dealt with as follows:

"31 Application for judicial review

(1) An application to the High Court for one or more of the following forms of relief, namely—

(a) a mandatory, prohibiting or quashing order;

(b) a declaration or injunction under subsection (2); or

(c) an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies, shall be made in accordance with rules of court by a procedure to be known as an application for judicial review.

…

(3) No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates."

10. The orders described in s31 are out in s29. The provision for leave is now known as permission. The Tribunal directed itself by reference to the relevant provisions of the Race Relations Act and of the Employment Tribunal Rules of Procedure

The facts

11. I will state the facts tentatively, since there has of course been no substantive hearing. As Miss Lester put it:

"5 The Claimant's complaint is that the Respondent acted unlawfully under Section 12(1)(c) by reason of its actions towards him, that is, in respect of the Claimant's authorisation to practise, actions aimed at varying the terms on which he held his registration to practise. Requiring the Claimant to appear before it was a condition imposed by the Respondent, failure to comply with which would attract a sanction. In effect, the Respondent withdrew the authorisation or varied the terms on which the Claimant held it, and that was unlawful.

6 The Tribunal finds that the Claimant was a registered medical practitioner, that is, registered with the Respondent. He was therefore entitled to practise medicine in this country and was, as with those subject to the rules of other professional regulatory bodies, subject to the disciplinary and other rules of the Respondent. Following a reference about the Claimant to the Respondent, the Respondent initiated its procedures. Before these were completed, the Claimant voluntarily relinquished the authorisation, that is, of his own volition he had his name removed from the medical register (as he was entitled to do). Therefore he could no longer practise as a registered medical practitioner.

7 The Tribunal decides that the Respondent's actions do not fall within Section 12(1). The Respondent did not withdraw the Claimant's registration ("authorisation or qualification"), nor did it vary any terms on which the Claimant held it. The Claimant himself voluntarily relinquished the authorisation: the Respondent did not withdraw it. It did not vary the terms on which the Claimant held the authorisation: it is not a variation of terms to activate professional disciplinary procedures and to pursue them. Registered medical practitioners hold their authorisation on terms — including the term that all are subject to the disciplinary procedures. The Tribunal therefore has no jurisdiction to hear the Claimant's complaints within Section 12(1) of the Act."

She then turned to consider whether or not the claim could be amended to include a claim for harassment. She said, and it is agreed, that there was at that no stage no claim for harassment under s12(1A) and regarded it as a free-standing offence for she said this:

"11 If the Claimant wishes now to raise the matter of harassment, he will have to apply for leave to add harassment to his claims. That means that he must be prepared to give particulars of the "unwanted conduct" which is the basic requirement in a complaint of harassment."

12. She then turned to the argument in relation to s54 and held that the existence of judicial review provided a mechanism in the nature of an appeal which ousted the jurisdiction of the ET. She said that it was unnecessary to make any determination but, putting it at its highest, that it was arguable that the Claimant might make a claim for judicial review against a GMC decision.
13. In her handling of the PHR points, Miss Lester was plainly guided by what her predecessor Ms Gilbert said in her CMD, which took place on 21 December 2005, for she defined the issues upon which a PHR was necessary by saying this:

"5 (i) whether the Tribunal has jurisdiction to hear the Claimant's complaints against the GMC relying on its status as a qualifying body under Section 12 of the Race Relations Act 1976 and if it has whether the Tribunal has jurisdiction to hear the Claimant's complaints against the GMC under Section 12 having regard to Section 54 of the Race Relations Act 1976;"

She summarised the issues in the Claimant's cases in the following terms:

"6 …

Race Discrimination

The Claimant is a medical practitioner of Indian nationality and Indian ethnic origin. He says that contrary to Sections 1(1)(a) and 12 of the Race Relations Act 1976 and Section 33 of the Race Relations Act 1976, the Respondent has treated him less favourably than a white English Caucasian hypothetical comparator. The alleged acts of direct discrimination are:

i) the decision to progress a complaint against the Claimant to the Professional Conduct Committee by letter of 25 march 2004;

ii) proceeding with that complaint when the outcome of the claim he was making against the University of London (London Deanery of Post Graduate Medical and Dental Education) was unknown;

iii) charging the Claimant with taking "the London Deanery to a Tribunal on the grounds of racism";

iv) failing to cancel the enquiry when requested to do so by the Claimant;

v) progressing the matter to a hearing;

vi) failing to carry out a proper investigation;

vii) finding the Claimant guilty of serious professional misconduct."

14. The third Chairman, Mr Lamb, considered an application that the Claimant should have permission to amend his claims to allege harassment. He did so following a contested hearing. It is common ground that if his Judgment were the only document there would be no attack, for it is accepted that the Chairman addressed himself to the correct statutory provisions, the correct rules of procedure and the correct authorities, and applied his discretion following consideration of all relevant factors. What is disputed is whether he had the jurisdiction to make that consideration in the light of para 11 of Miss Lester's judgment.
15. What I do not know about is the background to this case, which includes a finding by the relevant regulator (which was at one time the professional conduct committee and now has a different name) since these proceedings span the introduction in November 2004 of amendments to the Medical Act 1983. These involve a continuation in a different form of bodies with power to take action in respect of those who fail to meet the standards of a medical practitioner. The Claimant in his claim form said this:

"5. Though the panel found him guilty of serious professional misconduct but his registration was unaffected and he was on reprimand. The Applicant suffered from anxiety, stress and depression during the investigation by the Respondent. But he felt better after the decision and he was working on to come out of mental health problems as suggested by his doctor and mental health team.

6. The Applicant was dissatisfied with the investigation carried out by the panel of the Respondent and served Race Related questionnaires to ascertain full facts and gave sufficient time to respond but the Respondent has not minded to respond.

7. The Respondent used the evidences of his mental health during the hearing to take him to Interim Orders Panel (IOP) to put some restriction on his registration and/or suspend him from registration. This was an unexpected and unnecessary step taken by the Respondent in a situation of self-declaration of not working and living on incapacity benefit by the Claimant. The claimant was so stress and fearful that he applied for erasure of his name voluntarily to avoid any suspension or restriction on his registration. The Respondent was determined for suspension and restriction on his registration. His application for voluntary erasure of his name was initially refused and was granted only on the day of IOP hearing."

The reference to the panel is to the relevant panel of the disciplinary body and of the subsequent Interim Orders Panel (IOP):

"8. The Applicant believe that Respondent's findings of various charges, the decision of serious professional misconduct and then to refer to IOP on the ground of mental health was an act of victimisation under section 2(2) of the Race Relation Act 1976.

9. The Claimant, who had chance of negotiating and reconciliation with the London Deanery after successful appeal at EAT, suffered another setback due to action of the Respondent and lost the chance of going back to his training due to loss of his registration. The claimant had not only lost the opportunity for employment but he is on the verge of loosing his medical career.

10. The Applicant complained to the Respondent against other doctors of different race and ethnic origin who failed to comply the criteria of the Respondent's Good Medical Practise and who could be subject to investigation for their professional misconduct. The Respondent not only failed to investigate the complaint against these doctors but also cautioned the claimant for doing so as he was found guilty of serious professional misconduct.

11. The Applicant believes that be had been treated less favourably by the Respondent in carrying out investigation against him in compare of other doctors of different race and ethnic origin.

12. The Applicant also believes that the investigation procedures of the GMC are such that the doctors from ethnic minority are more likely to face formal investigation and disciplinary action compared to their white colleagues. He believes there is institutionalised discrimination within the GMC to browbeat the victims of racial discrimination. This constitutes direct, indirect and victimisation racial discrimination against him, contrary to the Race Relations Act 1976."

I do not know any more of the background to the decisions of the relevant organs of the GMC than that.

The Claimant's case

16. Mr Chaudhary first contends that the action taken by the GMC fell squarely within s12 in that the Claimant was complaining about more issues than simply the exhaustion of the procedure. He contends that Miss Lester mis-categorised and misunderstood the nature of the complaints which he was making. She construed s12 too narrowly so as to exclude his right to bring a claim.
17. As to s54, Mr Chaudhary contends that access to judicial review is not in the nature of an appeal and if this were the approach then no claim could be made against a qualifications body (of which there are numerous, not only in the medical but in other professions and disciplines). The Claimant was reprimanded and referred to an IOP and both these constitute action which is capable of being the subject of a claim under the Race Relations Act. Dr Zaman was forced to withdraw from the Register by his own voluntary erasure caused by the actions of the Respondent.
18. He was given permission to amend his claim to include harassment if he gave particulars and he did so.

The Respondent's case

19. On behalf of the Respondent, it is contended that the principal grounds of appeal which are available to a medical practitioner under the Medical Act are at the more serious end of conduct. Other claims may be made by way of judicial review. The answer to the Claimant's case under s12 is that the Claimant himself took the action and therefore it cannot be said that he was the driver of it, nor that there is a variation, by placing on the public record on the website the fact that he was given a reprimand by the GMC for serious professional misconduct. It is accepted that that is not a statutory form of sanction but has emerged over time as part of the jurisprudence of the GMC and of the courts which supervise the GMC (the Privy Council and latterly the Queen's Bench Division). The relevant body has power to impose a suspension and conditions and these are variations within s12. A reprimand cannot, nor can a decision to put the Claimant through an IOP procedure. Miss Lester did not mistake the remit she had inherited from Ms Gilbert and there was no dispute that this was the appropriate forum (a PHR) it not having been contended that Ms Gilbert was wrong in so setting up the case.
20. As to s54, it is contended that the point is now academic, given the judgment made by Miss Lester, and that in order for the EAT to intervene there has to be an error of law. Taking the point at face value, it is plain from the Supreme Court Act that the mechanism of judicial review is aptly described as in the nature of an appeal, and it is different from an appeal. It is available to the Claimant.
21. In respect of the amendment, it is contended by the GMC's appeal that Mr Lamb had no power, given what Miss Lester had said, to allow the amendment to introduce the new claim or, as the Claimant put it, the new label, based on the same material of harassment.

The legal principles

22. The legal principles to be applied in this case appear to me to be as follow. The EAT will deal only with live points sent to it, in this case by a three-member EAT at a preliminary hearing, and not with others. It will only in exceptional circumstances allow a new point to be argued provided that there is no unfairness and, generally speaking, provided all of the material by way of evidence is sufficient for the point to be argued cogently.
23. The approach to the relationship between the GMC's powers and judicial review is set out in Khan v General Medical Council [1996] ICR 1032 (CA) where Neill LJ said this:

"… It seems to me that the two-stage procedure provided for in section 25 and sections 28 and 29 of the Act of 1983 clearly fell within the formal procedure which is envisaged by section 54(2) of the Act of 1976. The decision at the first stage, under section 25, was taken by a committee which was set up for that purpose under paragraph 15 of Schedule 1. An applicant, such as Dr. Khan, who was dissatisfied, was then able to ask for the review board set up in the manner prescribed by section 28. The board made a determination and expressed an opinion. In the light of that opinion, the president made his decision.

…

In such a case, and in the other cases set out in section 29(3), the practitioner retains a right to bring a complaint to the industrial tribunal. The reason for that is simple. There are, in those cases, no proceedings in the nature of an appeal available against the initial decision. Mr. Griffiths said that that is an important provision because it shows how carefully this legislation is worded and how the statute itself draws a distinction between cases where there is a proceeding in the nature of an appeal, on the one hand, and cases where there is no such appellate machinery and where the practitioner can go to the industrial tribunal if he thinks that it is right."

To this Hoffmann L J added:

"It is a short question of construction which, in my judgment, admits of an easy answer, namely, "Yes." Section 29 of the Act of 1983 allows the decision of the General Medical Council to be reversed by a differently constituted set of persons. For present purposes, I think that this is the essence of what is meant by "proceedings in the nature of an appeal." I note that in Wootton v. Central Land Board [1957] 1 W.L.R. 424 Lord Evershed M.R. had to consider whether an application to the Lands Tribunal by a party who was dissatisfied with the determination of a land value by the Central Land Board was in the nature of an appeal. He maintained that it was. He said that it might fairly be described as an appeal to another body having the right either of affirming the development value or altering it."

That case was followed and approved as being correct in the eponymous Chaudhary v Specialist Training Authority Appeal Panel & Others No. 2 [2005] ICR 1086 (CA) where this time Pill LJ said this:

"28 I respectfully agree with the conclusions in Khan [1996] ICR 1032 and in Chaudhary (No 1) [2003] ICR 1510 which in any event are binding in this court. I refer to grounds on which Mr Hendy had sought to distinguish them…

29 In my judgment, the points raised do not justify in the present case a result different from that in Khan and Chaudhary (No 1 ), applying the principles stated in this court in those cases. The words "review" and "reconsideration" are not materially different for the purpose of deciding whose "act" is in question. Both come within the expression "appeal, or proceedings in the nature of an appeal" in section 54(2) of the 1976 Act. Moreover, the emphasis upon complete reconsideration tends to confirm the effectiveness of the appeal procedure provided. Hoffmann LJ in Khan (p 1043F) also referred to the advantage, in terms of providing an effective remedy, of the specialisation in their field of tribunals, such as the review board in Khan, when dealing with professional qualifications.

…

32 The procedure is a lawful alternative in this context to a procedure by way of complaint to an employment tribunal under section 54(1). The remedies available by way of judicial review (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295) provide an appropriate safeguard for applicants in present circumstances. It would be open to the court, on judicial review, to consider whether the appeal panel had acted in a racially discriminatory manner."

That approach was of course followed at EAT level in Dr M F Soliman Hassan v General Medical Council [2005] UKEAT 0807/04 at paragraph 15, by HHJ Prophet who said this:

"15. … Nothing which Dr Hassan has submitted to us today has persuaded us that the conclusions in those two cases are somehow to be doubted, even if they did not, as clearly they do, bind this Tribunal."

Conclusions

Section 12

24. I agree with the Respondent on the s12 point. First, the point had to be dealt with at a PHR. The Claimant made no objection to its depiction as susceptible to a PHR when so tailored by the hands of Ms Gilbert. As to the matter of construction, the Claimant does not get over the first important reservation, which is that he has to show that action was taken by the Respondent, for s12(1)(c) requires some action hostile to the Claimant taken by it. The obvious examples are withdrawing the authorisation from him, which means he cannot practise medicine, or varying the terms on which he holds the authorisation to practise. We are not even dealing with withdrawal. As a matter of construction, this power is solely in the hands of the qualifications body: it can confer or withdraw the qualification. It doe not make sense to say that the Claimant has withdrawn it from himself. Nor does he, for he describes his act as an application for voluntary erasure of his name from the register. Put simply, the wrong person is taking the action in this case. Thus, there was no action by the Respondent withdrawing the qualification. He was the person responsible for his inability to practise.
25. Secondly, even descending into that second phrase, there has been no variation of the terms on which he holds the authorisation. He actually does not hold the authorisation, so it is difficult to say that he holds it on terms varied from before. According to this structure, he is authorised by the GMC by registration, or he is not. There is no term which has been varied. However, what is contended is that the placing on the record of the Claimant's reprimand is a variation of the terms. I use that phrase advisedly because it is used by the Claimant's representative and picked up by the Respondent's in argument before me, and it is a subtle change from the way in which it was put below. It may make the Claimant less employable in the labour market for as long he has a reprimand active on his record, but that is very different from the terms on which he is authorised to practise medicine in this country.
26. At the moment, there is no variation of the terms. The GMC has power to impose a suspension or conditions, without completion of which a medical practitioner may not work. I accept that it may well have gone along that route through the IOP but it was the Claimant, because he saw the writing on the wall as he asserts in his claim form, or possibly because of his illness, who stopped the process. If it had gone ahead, and if the IOP had imposed conditions, for example relevant to the reasons why it was varying the terms, then it would have varied the terms and thus the act would have been within s12, but at the moment, it is not.
27. That therefore disposes of the Claimant's case and it is not necessary for me, nor was it for Miss Lester, to deal with the s54 point. However, this case has been politely contested before me and I am told that unless it is resolved, all that will happen is that this case may go round a carousel again, so I give my view on this basis.

Section 54(2)

28. I agree that the intention of Parliament by s54 was to keep cases out of the employment tribunal and in the specialist fora where challenges are made to qualifications bodies, through another mechanism. I accept that the legend to Part II of the Race Relations Act, is "discrimination in the employment field" and s12 falls within it, but it is an unusual aspect of employment law. It is part of the inclusive reach of the Race Relations Act that it brings in other than mainstream employment situations to include vocational, professional and qualifications bodies.
29. The first thing I would have to decide is whether the opportunity to make a claim for judicial review is an appeal, or proceedings in the nature of an appeal, and whether it may be brought under any enactment. I have already cited the enactment; it is the Supreme Court (Senior Courts) Act 1983. This sets out the procedure by which a person aggrieved may seek judicial review. The Medical Act shows the distinction between an appeal in its proper sense, and proceedings in the nature of an appeal.
30. An appeal may be mounted under the Medical Act against the more serious determinations; but it is apt to include as proceedings in the nature of an appeal, proceedings for judicial review. As Neill LJ pointed out: the essence is the conduct of the case by somebody different from the person against whom a complaint is made, or who has decided it at first instance, with the opportunity for a reversal of the judgment. That is precisely what the role of the court is in a judicial review. The dispute is taken away from the immediate environment of the actors - in this case the GMC and the medical practitioner - and put into the hands of a judge who has power to quash the judgment made below.
31. Thus judicial review is aptly described as proceedings in the nature of an appeal. Judges in the administrative court are familiar with dealing with cases under the Medical Act in the form of appeals proper; thus they constitute the obvious destination intended by Parliament for disputes of this nature, once a decision had been made at first instance. So if I were required to make a decision, I would uphold the submission that s54(2) ousts the jurisdiction of the ET because, in this case, proceedings can be brought by way of judicial review. They can of course be brought under the Medical Act for, to use Mr Hare's phrase, the more significant top-end disciplinary sanctions of the GMC.

Amendment of the claim

32. I then turn to the amendments point, upon which I did not need to hear submissions from Mr Chaudhary because I considered that the point being made on behalf of the GMC was a bad one. Miss Lester opened the door for an application to be made to add harassment. Harassment of course is a new concept, and she indicated that the Claimant must be prepared to give particulars of the unwanted conduct. So, subject only to his giving particulars, permission was given by her for an amendment to put the rails under a claim which was undeniably a new claim of harassment under the new statutory provision. 33. What was needed from Mr Lamb was a direction as to whether or not what had been put before him constituted sufficient compliance with Miss Lester's orders. I consider the way in which the Claimant has done this is highly simplistic and opportunistic. Essentially, he has cut and pasted his claim and argument into a form to allege that what before constituted discrimination, now, on its being rejected, constitutes harassment. It is open to the Respondent to ask for additional information on this and for more linkage. Mr Hare interpreted Miss Lester's judgment to mean that the Claimant must be prepared to set out the factual particulars. She may well have meant that but she did not say so, and I cannot say the Claimant is in breach of her order, and therefore failed in the condition which she made. It is graciously accepted on behalf of the GMC that there is nothing wrong with Mr Lamb's approach to the amendment point, if the jurisdiction is vouchsafed to him, and I hold that it is, for he was simply dealing with the application which had been put on track by Miss Lester.

The new point on s54(2)

33. That then disposes of the case, subject to Mr Hare's new point. It is this. Section 54(2) refers only to claims under s12(1). Harassment is made unlawful by s12(1A) and thus, he wants to argue, even harassment claims are subject to the same disposal as other claims under s54(2). He says this as an ambitious submission but nevertheless contends it is correct. I have decided, having heard argument from Mr Hare and a little argument from Mr Chaudhary, that I will not allow the point to be advanced. This is not an exceptional case. It is unfair for Mr Chaudhary to have to deal with it today. There have been at least nine occasions when this legally represented statutory body could have made the point. These were: before Ms Gilbert, Miss Lester, on review, before Mr Lamb, in the Notice of Appeal, in written submissions before and at the all-parties EAT preliminary hearing, and in the skeleton argument today. It is simply not fair for a lay representative, experienced as this one is, to have to deal with it. I accept that there is force behind this argument and so I will give a view about what would happen if this point were live.
34. I do not consider that the argument is correct. I have been shown the parallel provisions introduced in order to give effect to the new law of harassment in the sister legislation, that is, the Sex Discrimination Act 1975, the Disability Discrimination Act 1995 and the Employment Equality (Religion or Belief) Regulations 2003; I have researched the Employment Equality (Sexual Orientation) Regulations 2003 and also seen the Employment Equality (Age) Regulations 2006. The simple approach is that since the regulations do include harassment as being a specific measure which is caught by the equivalent of s54(2), this should be read across to the 1976 Act.
35. The statutes outlawing sex and race discrimination suffer from, as Mr Hare puts it, the same problem. It does not occur in the Disability Discrimination Act, nor in the three Regulations which were introduced in order to give effect to the European Union Framework Directive. There is thus a Treaty base for each of the three succeeding regulations and there is now a treaty base for the DDA, although the DDA preceded it. But I do not think that that is an explanation.
36. In his very limited but resourceful response, Mr Chaudhary contends that I should take a Human Rights Act 1998 approach to this argument, so that with my positive duty as a public authority under s6, and my interpretative obligation under s3, I should give effect, where possible, to legislation in a way which accords with and does not violate Convention rights. The Convention right engaged here is article 6, the right to a fair trial. It might also be subsidiary rights, such as anti-discrimination measures, in article 14. I am asked by the Respondent to insert into "a complaint under section 12(1)" in s54(2) the words "and section 12(1A)". That will have the effect of precluding the Claimant's claim before an employment tribunal, on jurisdiction, and sending him instead to the High Court. That I cannot do if I am observing my obligations under the Human Rights Act. He will get a fair trial in either forum. But the Employment Tribunal is quicker, more user-friendly, largely costs-free, has a specialist lay majority and is able to hear the Claimant's lay advocate, who has no right in the High Court. I would not add words to an anti-discrimination statute so as to take away those valuable safeguards.
37. I did say that I saw some force in Mr Hare's argument as a matter of logic, and it is very well demonstrated in this case, for the whole of the case which the GMC has thus far successfully kept out will now be reinstated under the new ground of harassment. Could Parliament have intended that to happen? It plainly did not intend it to happen in relation to the three equality Regulations and the DDA. Could it have mistaken its approach when it amended the Sex Discrimination Act and the Race Relations Act? It may have done, but I would need more persuasion. I do not regard it as simple as that and I would find that the plain construction of s54(2) does not exclude harassment. As I hope I have pointed out, that is very much my secondary position, since I did not regard it as appropriate for it to be raised before me.
38. I would very much like to thank both Mr Chaudhary and Mr Hare for their helpful submissions today. The appeal of each is dismissed. This case now goes back to the Employment Tribunal for hearing.