United Kingdom Employment Appeal Tribunal
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URL: http://www.bailii.org/uk/cases/UKEAT/2012/0093_12_0407.html
Cite as: [2012] UKEAT 0093_12_0407, [2012] UKEAT 93_12_407, [2012] Eq LR 1048
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
Before
GENERAL MEDICAL COUNCIL AND OTHERS RESPONDENTS
Transcript of Proceedings
JUDGMENT
RULE 3(10) APPLICATION - APPELLANT ONLY
PRELIMINARY HEARING - ALL PARTIES
APPEARANCES
SUMMARY
RACE DISCRIMINATION – Indirect
PRACTICE AND PROCEDURE
Appellate jurisdiction/reasons/Burns-Barke
Costs
The Employment Judge correctly struck out the Claimant’s claims as having no prospect, and being misconceived. At a rolled up rule 3(10) and all-parties preliminary hearing, the EAT held the Employment Tribunal had no jurisdiction on the Claimant’s claims against the regulator of care homes and the GMC. He had a remedy in judicial review and so was excluded by Equality Act 2010 s120(7).
HIS HONOUR JUDGE McMULLEN QC
1. Dr Jooste is a Boer - a South African national for the purposes of his claim under the Equality Act (EqA) of race discrimination. This case is also about claims of disability discrimination and Employment Tribunal procedure. I will refer to the parties as the Claimant, and the Respondents, who are the General Medical Council, represented by Mr Ivan Hare, the Care Quality Commission (“the Commission”), represented by Mr Tariq Sadiq, the Secretary of State of Health, represented by Mr John Jolliffe, and the Secretary of State for Justice, who appears by written submissions drafted by Ms Claire Palmer of counsel. The Claimant has the advantage to be represented by Mr Vaidya, who is highly experienced in litigation and is familiar with the administration of justice in employment and in other areas as demonstrated by many orders in his own cases.
2. What is unusual about today’s proceedings is that I have conducted a rule 3(10) hearing (see below), where the Respondents were present but played no part, it being a respondent‑free zone, but at which Mr Vaidya kindly agreed that if there were a point which any of the Respondents wished to chip in on, he would have no objection; as it happens, Mr Vaidya addressed me without any intervention from them. At the conclusion of that hearing I ruled that the application would be dismissed and no further steps would be taken in the appeal, effectively dismissing it. We then moved to the preliminary hearing, as directed by Langstaff P, the terms of reference for which I shall describe shortly. At that I had full submissions from those representing the parties, and I read Ms Palmer’s written submissions.
3. The remaining Respondents in this case are the trustees of the GMC, of whom there are 25, led for the purposes of notation on the entitlement of this case by Professor Sir Peter Rubin.
4. I have also dealt with an application for a postponement of today’s hearing, which can be described in due course.
Introduction
5. The appeal itself is an appeal by the Claimant against a PHR Judgment of Employment Judge Mr J Tayler, sitting alone, given on 29 July with Reasons sent to the parties on 21 October 2011. The representation was as it is today. The purpose of the hearing was to consider the following:
“1. Whether the claims of discrimination against the 1st Respondent should be struck out on the grounds that the Tribunal does not have jurisdiction to hear them.
2. Whether all or any parts of the complaints were presented out of time, and if so, whether an extension of time should be granted.
3. Whether all or any of the complaints against the 2nd, 3rd, 4th and 5th – 29th Respondent should be struck out on the grounds that they are misconceived and/or have no reasonable prospects of success.”
6. The claim is unusual, in that the Claimant is not an employee of any of the Respondents but makes claims essentially against the regulator, the GMC, and the Commission, as a qualifications body, for the discrimination that he identified. For the purposes of today I am prepared to accept what he says in his claim form of his ethnicity, that he has a heart condition and a stammer.
7. He contended that he had been discriminated against by all 29 of the Respondents in various ways, some of which were by direct discrimination and some by way of secondary or auxiliary discrimination. It is common ground before me that the case runs under the EqA 2010 and not its predecessors in the Race Relations Act 1976 (RRA) and the Disability Discrimination Act 1995, although Employment Judge Tayler did set out these matters and approached it on the basis of the transitional provisions under Regulation 7 of the Equality Act 2010 (Commencement No. 4) Order 2010, as an approach to a continuing act. An adverse act commenced prior to the commencement of the 2010 Act on 1 October 2010 and continued thereafter is governed by the EqA.
8. The Employment Judge directed himself to the three issues. I say at once that I reject Mr Vaidya’s contention that the Judge failed in his duty to carry out the task set for him by an order setting up the PHR, for he did answer the three questions; he struck out the claims against all of the Respondents, having carefully considered the arguments and the scope of the hearing. The Claimant appeals against that Judgment.
EAT Directions
9. In Haritaki v South East England Development Agency [2008] IRLR 945 paragraphs 1‑13 I set out my approach to rule 3; it should be read with this Judgment. That approach has been approved by the Court of Appeal in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240. On the sift of this Notice of Appeal, in accordance with the Practice Direction, Langstaff P exercised his power under rule 3(7) of the Employment Appeal Tribunal Rules. He concluded in chambers giving two opinions, and said this:
“Most of the claims, relating as they do to the I.O.P’s decisions are subject to statutory appeal under the M.A. [Medical Act] 1983 and the Employment Tribunal did not have jurisdiction (s. 120(7) Eq A10). For myself I do not agree that proceedings by way of J.R. are ‘caught’ by s. 120(7) because the right to appeal is by common law not statute; but this point gets the appeal nowhere because all bar one of the allegations against the GMC are out of time, and there is no credible reason for supposing that handing the police a review decision on 5 or 6 January 11 forms part of the same series of events as the other matters relied on. That action, however was in time (the ET1 was issues 31 March 10. The reasoning at paragraph 36 in relation to it is arguably unclear, but a PH is appropriate because the Appellant may wish to focus on how he puts his case here as getting off the ground towards showing discrimination given that the remarks of the Employment Tribunal at paragraph 37 [sic].
All the other claims are parasitic on the claims against the first Respondent and (except for the ‘police disclosure claim’) and [sic] must therefore stand or fall with them quite apart from the impossibility of showing that trustees of the General Medical Council are legally responsible for alleged torts when there is no material to show any personal involvement with the acts complained of.”
10. Where no point of law is found section 21 of the Employment Tribunals Act 1996 deprives the EAT of jurisdiction to hear the case. The Claimant was given the opportunity to have his case heard at a fresh hearing, and that is what he has done. I am thus hearing the case on more material than was available to the President and form my own view of the appeal. The question for me on this rule 3 matter is whether there are any or no reasonable grounds in the appeal.
11. I have heard oral argument from all three counsel and Mr Vaidya directed at the single matter which, as I hold, was directed by the President to be heard by a single judge at a preliminary hearing. At the outset of today’s case Mr Vaidya made an application that it should be postponed to follow behind the reserving of Judgment by Slade J on 20 June 2012 in the cases of Uddin v General Medical Council and Ors [2012] ALL ER (D) 23 and Depner v General Medical Council and Ors [2012] All ER (D) 64. These had been the subject of a rule 3(10) application at which Langstaff P decided that the point should be determined by a High Court Judge with experience in the Administrative Court and practical experience of appeals under the MA 1983, and at that hearing there would be representation from the GMC. That case has now concluded, and I will take it from Mr Hare who represented those two appellants and who was there with Mr Vaidya, that the indication is that Dr Depner’s case will be taken no further under rule 3 but a Judgment is awaited in respect of Dr Uddin.
12. I sought to know what overlap there was in respect of the two cases. After all, why would the President not take the same care to refer this appeal to the judge if the issue overlapped? I am assured that the specific question that arises in relation to the construction point before me is different. Concessions had been made by Mr Hare on behalf of his clients, and that indicates what the territory is to be. I am assured that the decision I make in this case does not overlap the decision to be made by Slade J, but I make clear that if it transpires that there is such overlap, I would be prepared to consider an application for a review of my Judgment in the light of that, but only if the understanding I have of the scope of today’s hearing turns out to be incorrect. It has to be said that an unusual practice was adopted by Slade J, because she heard submissions about the scope of the appeal she was hearing in Dr Uddin’s case, and in order to resolve it she invited the President to sit in her court and to explain the precise scope of his order under his Judgment in Uddin (UKEATPA/1155/11). So, although there appeared to be differences between Mr Vaidya and Mr Hare about what the scope was, I, with respect, accept what Mr Hare has put to me and that I will not be trespassing on Slade J’s territory.
13. For that reason, I declined to accept the submission that I should postpone the proceedings; in short, the answer in Uddin will not solve this case. Further, the Respondents in my case are different from those in Dr Uddin’s case, and there is a specific issue of fact relevant only to Dr Jooste. No formal notice was given of today’s application, and so for all those reasons, including substantial issues of costs and expense, I decided that this case should be heard today.
The legislation
14. The relevant provisions of the EqA are as follow:
“53 Qualifications bodies
(1) A qualifications body (A) must not discriminate against a person (B)—
(a) in the arrangements A makes for deciding upon whom to confer a relevant qualification;
(b) as to the terms on which it is prepared to confer a relevant qualification on B;
(c) by not conferring a relevant qualification on B.
(2) A qualifications body (A) must not discriminate against a person (B) upon whom A has conferred a relevant qualification—
(a) by withdrawing the qualification from B;
(b) by varying the terms on which B holds the qualification;
(c) by subjecting B to any other detriment.
(3) A qualifications body must not, in relation to conferment by it of a relevant qualification, harass—
(a) a person who holds the qualification, or
(b) a person who applies for it.
(4) A qualifications body (A) must not victimise a person (B)—
(a) in the arrangements A makes for deciding upon whom to confer a relevant qualification;
(b) as to the terms on which it is prepared to confer a relevant qualification on B;
(c) by not conferring a relevant qualification on B.
(5) A qualifications body (A) must not victimise a person (B) upon whom A has conferred a relevant qualification—
(a) by withdrawing the qualification from B;
(b) by varying the terms on which B holds the qualification;
(c) by subjecting B to any other detriment.
(6) A duty to make reasonable adjustments applies to a qualifications body.
(7) The application by a qualifications body of a competence standard to a disabled person is not disability discrimination unless it is discrimination by virtue of section 19.”
15. There is an exception to the provisions in section 53, and it is found in section 120(7), which says the following:
“(7) Subsection (1)(a) does not apply to a contravention of section 53 so far as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal.”
16. The provisions of the EqA are subject to time limits on the making of claims; these are familiar, and are as follow:
“123 Time limits
(1) Proceedings on a complaint within section 120 may not be brought after the end of—
(a) the period of 3 months starting with the date of the act to which the complaint relates, or
(b) such other period as the employment tribunal thinks just and equitable.
….
(3) For the purposes of this section—
(a) conduct extending over a period is to be treated as done at the end of the period;
(b) failure to do something is to be treated as occurring when the person in question decided on it.
(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—
(a) when P does an act inconsistent with doing it, or
(b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”
17. There is secondary liability for those who, broadly speaking, assist, aid or abet acts of discrimination (see sections 111 and 112).
18. The adjectival law for the conduct of Employment Tribunals is contained in the Employment Tribunals (Constitution and Rules of Procedure) Regulations, which give by rules 10 and 18 wide powers of case management and issue determination to an Employment Judge. At a PHR an Employment Judge can be asked to determine issues such as I have set out above. The approach to these matters is carefully circumscribed by a number of authorities, which are put before me and to which I will turn in due course.
19. There are other provisions that are relevant to this case. Section 40 of the MA 1983 provides for challenges to decisions made by the GMC.
20. The Senior Courts Act 1981 (SCA) makes provision for what was then the entirely newly labelled right to complain by way of judicial review against certain decisions, and section 31 provides as follows:
“(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.
(4) On an application for judicial review the High Court may award to the applicant damages, restitution or the recovery of a sum due if—
(a) the application includes a claim for such an award arising from any matter to which the application relates; and
(b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application. […]
(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant—
(a) leave for the making of the application; or
(b) any relief sought on the application,
if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”
21. I accept from Mr Hare that what occurred here was the statutory departure from the common‑law right to complain by way of prerogative writ or, more recently, prerogative order, and that the right to claim judicial review as first enacted in this statute, and the procedure enacted in this statute by reference to the now Civil Procedure Rules, were matters entirely occurring by virtue of the 1981 Act.
The facts
22. Dr Jooste has some medical qualifications, but issue was taken by the Commission with the registration of premises at 30 Dover Street, London W1, and it was thought by it that a company operating there Panther Day Ltd, was acting in breach of the MA for providing medical services without appropriate registration. The regulator of care facilities is the Commission; the GMC has authority over medical practitioners and through its fitness to practise panel may make decisions as to registration and removal from registration. A body known as the interim order panel (IOP) makes decisions, as its name implies, on an interim basis.
23. The Claimant was invited to attend an interview on 22 June 2009, but declined to do so unless he was paid what were his alleged losses of £6,000 a day. In his claim form to the Tribunal he claims £4 million against all of the Respondents based upon remuneration of about £240,000 a year. The Commission was involved in the investigation of the matters that it had discovered, and the basis of the claims against it were that the decision to put an interim order on the Claimant was an act of discrimination by the GMC instigated by the Commission; in other words, the involvement of the two corporate Respondents invoked issues of discrimination against the Claimant. The Claimant was suspended, and still is.
24. The concerns of the GMC about the practice in 30 Dover Street having been proceeded with no further, two other premises were referred to the police on 9 August 2010. The Claimant was indicted at Bournemouth Crown Court, but in July 2011 on the Crown offering no evidence the Claimant was acquitted by the Judge of a single count of fraud.
25. The Claimant challenged his suspension of registration, but Nicola Davies J on 19 August 2010 said this:
“In my judgment there was evidence before the Panel which raised concerns as to where Dr Jooste was working, what he was doing, and whether such premises were registered with the CQC. Such concerns were relevant to the issue of Dr Jooste’s fitness to practise and any risk which he might pose to members of the public. On the documentary evidence before it, it was open to the Panel to determine that an interim order of suspension was necessary. The order was an appropriate sanction to reflect such concerns. […]
On the evidence before the IOP on 9 October 2009, it was entitled to conclude that there may be impairment of Dr Jooste’s fitness to practise which poses a real risk to members of the public. It correctly identified the balance between the interests of the doctor and those of the public and concluded that an interim order was necessary to guard against the risk. There are no grounds for terminating the suspension imposed.”
26. There were further reviews, most relevantly on 24 November 2010, where the IOP decided that it was necessary for the protection of the public for the suspension to continue. That review was said to be an act of discrimination.
27. The final act in the sequence as it is put by the Claimant was an email of 5 January 2011 giving to the police a copy of the IOP report of 24 November 2010. That is said to be an act of discrimination by the GMC. Mr Vaidya accepted the way in which this was categorised by Mr Hare in that the email to the police was in response to one from the police indicating that Dr Jooste was seeking a variation of his bail conditions on the basis that the circumstances had changed. This was a request for information from another public authority, which itself arose from a request to vary bail conditions made by Dr Jooste himself, and on the basis of that, the GMC denies any liability and had no choice but to respond to the request by the police.
28. There is a further incident in relation to the Commission, which is to do with an incident in March 2011 where it is said that the Commission should have responded to the Claimant’s request that it ask the GMC to cease its proceedings against the Claimant. On 17 March 2011 the Claimant commenced judicial review proceedings relating to the suspension of his practice from October 2009; those were dismissed. On 4 April 2011 this time Owen J in the High Court granted a further period of suspension for 12 months up to, I take it, 4 April 2012.
29. Employment Judge Tayler decided the central issues in accordance with the following findings. He knew that there was a power to strike out claims that have no reasonable prospect of success, or are misconceived. He noted that the Claimant accepted that the claims against the GMC must be under the EqA, and Mr Vaidya before me accepted that the claims against all 29 of the Respondents were under the EqA too. The Judge decided a jurisdictional issue in respect of whether or not the exemption in section 120(7) applied. Reassuringly, perhaps dangerously, he decided to follow a Judgment of mine, in which I had accepted a submission from Mr Hare: Tariquez‑Zaman v General Medical Council UKEAT/0292/06. I am of course open to persuasion that I am wrong, and Langstaff P’s opinion may have cast some doubt on it, but Employment Judge Tayler cited it for the proposition that there is an alternative remedy for the Claimant and his claim is excluded.
30. Nevertheless, having decided that issue, the Employment Judge went on to make it clear that the claim against the GMC could not succeed. This was on the basis that the time limit had not been complied with for the presentation of claims to an Employment Tribunal in respect of any matter prior to the 5 January 2011 email, and the Judge said this:
“36. In any event, in respect of the first Respondent, there is only one complaint that is that was submitted within three months. That is about the passing of the IOP review document to the Police on 6 [sic] January 2011. I consider that, even if jurisdiction was not ousted, it has no reasonable prospect of success. The General Medical Council was doing no more than would be an obvious requirement where the Claimant was under investigation by the Police, and where its panel had reached a conclusion on the continuation of the suspension of the Claimant, that the Police should be provided with a copy of the decision. Accordingly, there are no claims that would be within time which would have any reasonable prospect of success. Although the Respondent has raised the issue of the complaint being submitted out of time in its Response, and although directions were made for the exchange of witness statements and the production of an agreed bundle for this Tribunal, the Claimant has put forward no explanation as to the delay in submitting his Claim Form and has put forward no basis upon which it would be just and equitable to extend the time limit beyond three months. On that further ground, I consider that the claim has no reasonable prospect of success.”
31. The Judge then went on to reflect, I dare say on the basis that he were wrong on the first two points, whether or not there would be a chance of the Claimant shifting the burden of proof. As to this, the Judge made it clear that the question of why the Claimant was treated in this way was the essential issue in any discrimination case and pointed to the decision of Nicola Davies J, who had found that there was proper evidence upon which the GMC could reach the decision that the suspension of the Claimant’s practice was appropriate, and that must include rejection of the alternative arguments that there was discrimination at work.
32. Turning then to the Commission, the Employment Judge decided that the matter relating to March 2011 was not raised in the pleadings and there were no reasonable prospects of success, and even so if there were, the Second Respondent could not lean on the First Respondent.
33. The Judge then turned to the two Secretaries of State against whom claims were made of a similar nature, but as the Judge encapsulated the argument of Mr Vaidya he recorded this:
“39. In respect of the third Respondent and the fourth Respondent, essentially the same allegations are raised. It is contended that the power under Section 203 and 204 EqA under which a Minister of State may take steps to harmonise provisions to comply with the Act. At most this gives power to the minister to take such action in certain circumstances. I have found the Claimant’s argument in this regard difficult to follow. It appears to be argued that in maintaining in force the provisions of the [MA] 1983 the Secretary of State for Health and/or the Secretary of State for Justice have allowed a state of affairs to exist under which the powers under that Act could be misused by the General Medical Council. I simply do not accept that there are any provisions in the [EqA] that permit action to be brought against either Secretary of State on that basis. Even if they were, it would be an omission and would be out of time.”
34. The Judge then turned to the individual Respondents, Professor Sir Peter Rubin and his fellow trustees, and here he relied upon a Judgment of Underhill P in Depner (UKEATPA/0507/11/DA), which, it will be recalled, was the case bolted onto the Uddin case going on before Slade J at a rule 3(10) hearing – that is, without any Respondent opposition. Underhill P said this:
“12. For those reasons alone, I would be entitled to not allow this appeal to proceed any further. However, I think I ought, albeit briefly, to deal with the substantive question. The essential point made by Mr Vaidya in his skeleton argument and his submissions before me is that because the General Medical Council is a charity the trustees are necessarily individually liable for every wrong done by the Council. He seeks to support that proposition by referring to literature produced by the Charity Commission about the risk of liability to charity trustees (and the desirability in some circumstances, indeed, of their being insured). With all respect to him, that is a complete misunderstanding of the position. The General Medical Council is, by section 1 of the Medical Act 1983, a body corporate. The acts of which the Appellant complains under section 12 are primarily acts of that corporation. It is true that, by virtue of section 33 of the 1976 Act, liability will also attach to individuals who are shown to have aided the corporation in doing the acts in question; but in order for section 33 to apply the individuals in question must be shown themselves to have aided in some specific way the particular acts complained of. It is no part of the Appellant’s case that they did so. Mr Vaidya on her behalf seems to think that simply by being the trustees, and, he says, by presiding over a situation in which the internal governance of the Council was unsatisfactory in various respects, they can be taken to have aided the particular acts of which he complains under section 33. That is simply wrong.”
35. Mr Vaidya says that Underhill P completely misunderstood the position, whereas Underhill P, with respect as he put it to Mr Vaidya, said that he had misunderstood it and that Mr Vaidya was simply wrong. In my judgment, Employment Judge Tayler was correct to apply that authority and to reach the same conclusion; it is a perfect analysis of the relationship between members of a board of a corporate body registered as a charity, and therefore he struck out the claims against the 25 individual trustees and with them all of the others.
36. The Judge then went on to make an order as to costs. Although the costs were extensive, the Judge paid attention under rule 41(2) to the ability to pay of Dr Jooste, and he made what must in the circumstances have been a fairly modest award of costs against Dr Jooste of £700 between the first four Respondents.
Conclusions on the Claimant’s case
37. The principal arguments addressed to me by Mr Vaidya relate first to the application under rule 3(10). For these purposes I will state my conclusion: with respect, I agree with the summary dismissal by the President of the arguments on the remaining grounds of appeal. The first ground relates to what is described as a distinction between reasonable prospects and fanciful prospects; in my judgment, the Employment Judge had the correct test in mind. Grounds 2 and 3 contend that the Judge had the wrong statute and ignored relevant parts of the EqA. The Judge plainly had regard to what are the relevant provisions, which I have cited above, and made no error in doing so. The fifth ground of appeal relates to the corporate liability of individual trustees. I will endorse what Underhill P said: Mr Vaidya misunderstands the nature of corporate liability. Had he identified any one among Professor Sir Peter Rubin and the other 24 trustees as having a hand in individuation of treatment of Dr Jooste, the matter would have been different, but it is not. The Judge made no error in his application of that provision.
38. A point is taken about costs on the grounds that the claim was misconceived, but again, in my judgment, the Employment Judge was alert to the power. It is an exceptional power, and it cannot be said that he exercised his discretion in a way that was wrong in principle or clearly paying attention to irrelevant factors or not paying attention to relevant factors. It is worth noting that these days it is very unusual for an appellate court to intervene with the award or non‑award of costs by an Employment Tribunal (see Arrowsmith v Nottingham Trent University [2012] ICR 159, where the Court of Appeal upheld my Judgment upholding a Judgment of the ET, and the same in Dean & Dean v Dionissiou‑Moussaoui [2011] EWCA Civ 1331). The only variation is Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255, where the Court of Appeal made clear the rules for intervening and did in fact intervene, reaching different conclusions from the ET and the EAT, but reasserted the principles that it would be unusual for there to be an intervention.
39. As to the contention in ground 7 that the Judgment of the Tribunal did not comply with the obligation to give reasons, this of course is a frequent plea in our jurisdiction. Support is given to this contention by Langstaff P’s suggestion that part of paragraph 36’s reasoning was unclear. In my judgment, the paragraphs impugned by ground 7 – that is, paragraphs 37‑41 – do give a clear explanation of the Judge’s thinking.
40. Customarily walking wearily hand in hand with the challenge to reasons (Meek v City of Birmingham District Council [1987] IRLR 250) is of course the perversity challenge. With respect to Mr Vaidya, the perversity challenge does not reach anywhere near the overwhelming case of an error required for it to succeed; see Yeboah v Crofton [2002] IRLR 634 CA. As to the declaration of incompatibility with the Human Rights Act (ground 9 of the Notice of Appeal), in my judgment the decision was entirely correct in relation to the jurisdiction that is available to the Employment Tribunal.
41. That disposes of the matters under rule 3(10). For reasons that I have reached independently I come to the same conclusion as the President.
42. I will now turn to the one issue that was left open where he suggested there may be a possibility of an error. It is important to recognise what the purpose of this preliminary hearing was, which is to allow Mr Vaidya to focus on how his case gets off the ground in showing discrimination in the light of what the Judge found in paragraph 37 of his Judgment. It is also important to understand the sequence of the Judge’s reasoning. The first point, described as a “knockout” point by Mr Hare, is that this case is subject to section 120(7), in that the Claimant has rights by virtue of an enactment to proceedings in the nature of an appeal. It may come as no surprise that I still agree with what was put by Mr Hare and I held in Tariquez‑Zaman, although I did not hear full argument upon it because it was not necessary for my Judgment. Judicial review arises under the SCA; that establishes the right of judicial review in its modern name and form, prescribes rules for running the proceedings and the remedies that are available. In my judgment, judicial review is aptly described as arising under an enactment, originally a common‑law matter and originally subject to prerogative writs and prerogative orders but now controlled by the 1981 Act. As reinforcement, Khan v General Medical Council [1996] ICR 1032 CA points to the same conclusion; see, for example, the Judgments of Neill LJ at page 1040H and 1041C, and of Hoffmann LJ, where he said this (in respect of the old RRA provision corresponding to ours in the Equality Act 2010):
“The main question in this appeal is whether proceedings under section 29 of the Medical Act 1983 are ‘in the nature of an appeal’ within the meaning of section 54(2) of the Race Relations Act 1976.
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’.”
Hoffmann LJ made clear that there was an effective remedy by way of judicial review; see page 1043E‑G.
43. Human rights challenges were made to that approach in Chaudhary v Specialist Training Authority Appeal Panel and ors [2005] ICR 1086, but these were rejected by the Court of Appeal. Khan was followed by Pill LJ (see page 1095G‑1096C) and other members of the Court, so that approach is correct.
44. Thus the exclusion is by virtue of an enactment and it does provide for proceedings in the nature of an appeal. An appeal simply is the opportunity to have a decision considered again by a different body of people with power to overturn it.
45. The simple question is whether or not there was a continuing act in this case by the GMC by reason of its decisions. In my judgment, the rather liberal approach to continuing acts in cases relied on by Mr Vaidya (for example, Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 95) is not as appropriate for cases of continuing‑act allegations by a regulatory body. In BMA v Chaudhary [2003] EWCA Civ 645, Mummery LJ said the following:
“67. […] Cases such as Rovenska [v General Medical Council [1998] ICR 85] and the instant case, in which applications are made for registration by regulatory authorities and are rejected, are distinguishable from the cases in which an employer continuously applies a requirement or condition, in the form of a policy, rule, scheme or practice operated by him in respect of his employees throughout their employment: see Barclays Bank plc v Kapur [1991] ICR 208; Cast v Croydon College [1998] ICR 500 at 515B; Owusu v London Fire and Civil Defence Authority [1995] IRLR 574.”
46. What is contended for is that the decisions of the IOP represent a continuing act up until the disclosure to the police. There is no error by the Judge in deciding this did not occur. The principal issue here is whether or not the decision to send the IOP report on 5 January 2011 constituted an act of discrimination. Here the Judge’s secondary finding is entirely against the Claimant and is entirely sound. I do not consider that there is a lack of clarity about the way in which the Judge deals with this matter, and so if the Judge were wrong about the construction point, he is not wrong in respect of dealing with the matter arising out of the email.
47. Further, I agree with the Judge in his third holding that the decision as to removal of the registration for practice was appropriate, as decided by the High Court. For that reason the case against the GMC was correctly struck out as having no reasonable prospect of success. To summarise, it was a combination of the failure to present claims in time, the lack of a continuing act extending throughout the period, and I accept Mr Hare’s submission that the disclosure to the police was entirely proper. It was instigated by the Claimant himself, who sought the benefit of some change in position in order to vary his bail conditions, and it was entirely appropriate for the GMC to send its report upon which the Claimant, I assume, was relying to support a change of circumstances entitling him to reconsideration under the Bail Act.
48. The claim weighed against the Commission really relates to the new event in March 2011. This is not part of the remit of Langstaff P in letting this matter go to a preliminary hearing, but because I have heard argument upon it I will give a decision. There is no reasonable prospect against the Commission because the sole allegation relates to what happened in March 2011, and this cannot be the subject of a complaint on appeal. As Mr Sadiq correctly puts it, Mr Vaidya has not challenged the summary that the complaint had not been pleaded, it was not for the Commission to tell the GMC how to run its affairs, and, in so far as the Commission is a regulatory body, the treatment could not fall within section 53. On that basis, the Judge was entirely correct to hold that there were no reasonable prospects of success against it.
49. As to the claim against the Secretary of State for Health, there is no cause of complaint within the jurisdiction of the Employment Tribunal; it does not confer authorisation as it is not a qualifying body. The Judgment in paragraph 39 is correct; there is no way in for the Claimant after the President’s Judgment. In as much as that is relied upon it relates to paragraph 36 and not to 39, which is where the matter is disposed of, and so there is no error in the Judge’s decision to strike out the claim against the Secretary of State for Health. Similar submissions are made on behalf of the Secretary of State for Justice in writing by Ms Palmer, which I accept in full.
50. I then turn to the issue of costs. It has been weakly argued before me in the rule 3(10) hearing, it does not arise in the limited scope of the preliminary hearing, and I have already said that there appears to be no error of law in the approach of the Judge to the exceptional award of costs. I myself would not intervene in this bearing in mind the authorities I have cited above. There is no error of law.
Conclusion
51. So, for those reasons, I dismiss the application under rule 3(10), and I dismiss the appeal under the preliminary hearing.
Application for costs
52. An application has been made for costs on behalf of the Commission. I can understand some sense of grievance, but the case does not come under the condign epithet of “misconceived” in relation to rule 34A. Mr Sadiq asked for costs running to £5,491.20 including VAT to be paid. The sense of grievance he has on behalf of his client is that he says Langstaff J could have let it out, but in fact his order does not say that and the Commission remained a party to the proceedings, but it was an easy point for it to win. It could have done what the Secretary of State for Justice did and put in a written response, which would be quite short, and the worst‑case scenario for the Commission would be that it would have to come back to a full hearing; on the other hand, it might have succeeded in its written submission. Since I have adopted that, it would have been quite simple. I do not consider that, having come not by order but by a permission to attend the hearing ordered by Langstaff P, it can be said that the Claimant behaved in any of the ways set out in rule 34A, so I refuse the application for costs by the Second Respondent.