THE
HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
1.
Access to work as a biomedical scientist has depended since July 2003 on
registration of the worker by the Health Professions Council (“HPC”).
2.
The HPC’s functions and process are set out in the Health Professions
Order 2001 (SI 2002 Number 254) by article 9:
“(1) A person seeking admission to a part of the
register must apply to the Council and, subject to the provisions of this
Order, and in particular paragraph (4) if he satisfies the conditions mentioned
in paragraph (2) he shall be entitled to be registered in that part.
(2) Subject to paragraph (3), the conditions are that
the application is made in the prescribed form and manner and that the
applicant –
a) satisfies the Education and Training Committee that
he holds an approved qualification awarded –
(i) within such period, not exceeding five years
ending with the date of the application, as may be prescribed, or
(ii) before the prescribed period mentioned in (i),
and he has met such requirements as to additional education, training and
experience as the Council may specify under Article 19 (3) and which applied to
him;
b) satisfies the Education and Training Committee in
accordance with the Council’s requirements mentioned in article 5 (2) that he
is capable of safe and effective practice under the part of the Register
concerned; and
(c) has paid the prescribed fee” …
“(4) Where a person who –
(a) is not registered on the date of coming into force
of an order made under Article 6 (1) which relates to his profession; but
(b) has been on a register under the 1960 Act in the 5
years immediately preceding the date mentioned in sub-paragraph (a),
applies for admission to the register in the relevant
period, the Education and Training Committee shall, if it is satisfied as to
his good character, grant the application.”
3.
An appeal is provided for by Articles 37 and 38. So far as material to
the present case they provide:
“37 (1) Where the Education and Training Committee
under this Order
(a) refuses an application for registration …
(b) in determining an application under article 9 …
imposes additional conditions which must be satisfied before the applicant may
be omitted to the Register.
(c) removes the name of a registrant from the register
… or
(d) fails within the terms of Article 9 (7) to issue a
decision,
the person aggrieved may appeal to the Council within
the prescribed period.
(2) No appeal lies to the Council where the person
aggrieved has been refused registration solely because he has failed to pay the
prescribed fee for registration or has failed to apply in the prescribed form
and manner and accordance with Article 9 or 10” ….
38 (1) An appeal from …
(b) any decision of the Council under Article 37 …
shall lie to a County Court …..
(2) In any appeal under this Article the Council shall
be the Respondent.
(3) The court … may
(a) dismiss the Appeal;
(b) allow the appeal and quash the decision appealed
against
(c) substitute for the decision appealed against any
other decision the Practice Committee concerned or the Council as the case may
be, could have made; or
(d) remit the case to the Council …
to be disposed of in accordance
with the directions of the court … .”
4.
Doctor King, the Claimant and Appellant in this appeal, complains that
she was prevented from registering by discrimination – indirect discrimination
in the case of sex and age, and both direct and indirect in the case of race.
5.
The background to those claims is that Doctor King obtained a BSc in
Life Sciences in 1978 from the Polytechnic of Central London, a BA in 1980 from
the Open University, an MSc in Immunology in 1983 from Chelsea College, University of London and a PhD in Chemistry in 1985 from the City University, London. She undertook post-doctoral research and taught, and then from 1987 - 1997
worked for the Institute of Bio-medical Sciences (“IBMS”). She became an
ordinary member of the Society for General Micro-Biology in 1978, a fellow of
the Chemical Society in 1978, a fellow of the Institute of Medical Laboratory Sciences in February 1991, and in June 2010 was awarded a First Diploma from
IBMS in recognition of her continuing professional development achievements.
6.
She took a career break (to care for her husband). By the time she
wished to return to work – in 2005 – she needed to be registered by the HPC.
Article 9 (2) (a) required her to satisfy the Education and Training Committee
that she held an “approved qualification” (see above).
7.
An “approved qualification” is dealt with by Article 12 in these terms:
“(1) For the purposes of this Order a person is to be
regarded as having an approved qualification if
a) he has a qualification awarded in the United
Kingdom which has been approved by the Council as attesting to the standard of
proficiency it requires for admission to the part of the Register in respect of
which he is applying;
b) he is an EEA national and has a qualification to which
the European Communities (Recognition of Professional Qualifications)
Regulations 1991 or, as the case may be, the European Communities (Recognition
of Professional Qualifications) (Second General System) Regulations 1996 apply;
or
c) he has elsewhere than in the United Kingdom, undergone training in one of the relevant professions and either –
i) holds a qualification which the Council is
satisfied attests to a standard of proficiency comparable to that attested to
by a qualification referred to in sub-paragraph (a), or
(ii) the Council is not so satisfied, but the
applicant has undergone in the United Kingdom or elsewhere such additional
training or experience as satisfies the Council following any test of
competence as it may require him to take, that he has the requisite standard of
proficiency for admission to the part of the Register in respect to which he is
applying ….”
8.
The Claimant was told by telephone that her qualifications were not
approved by the Council. On 23 June 2009, the HPC wrote to her to say that if
she did not hold an “approved course” qualification, she would need to contact
the IBMS in order to gain their Certificate of Competence which also fulfilled
the requirement. The only other route was by way of an international application
for which (said the author of the letter) “I believe you do not qualify”.
9.
A list of approved qualifications was sent with the letter. Whatever
may have been the status of the courses the Claimant had successfully completed
earlier in her education, they were not detailed in the list then current, nor
have they been since.
10.
On 28 October 2009, Claire Harkin, Customer Services Manager in the
Registration Department, wrote to Doctor King to tell her “we cannot accept an
application unless you have successfully completed a (sic) HPC approved
programme or you hold the IBMS certificate of competence.” Doctor King found
that when she enquired of hospitals whether she could be taken on as a trainee
to achieve registration that under the circumstances and in view of the fact
that she was a Fellow of the IBMS it would not be appropriate. Accordingly,
she considered that what HPC had done was to bar her from registration by
insisting upon her having qualifications which she did not possess, and preventing
her from being assessed in the same way as she would have been had her existing
qualifications been obtained overseas. She would have qualified under
transitional arrangements had she applied in time, but had taken a career break.
She contended that since more women were likely to be affected by career
breaks, that overseas applicants would be advantaged in comparison to her by
the provisions criteria and practices of, and applied by, the HPC, and that she
would not have been in the position she was had she been a younger trainee, she
had a viable case in respect of sex, race and age discrimination.
The Discrimination Provisions
11.
The Sex Discrimination Act 1975 applies to this claim. By
Section 13 (headed “Qualifying Bodies”) is provided: -
“(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 woman
–
(a) in the terms on which it is prepared to confer on
her that authorisation or qualification, or
(b) by refusing or deliberately omitting to grant her
application for it or
(c) by withdrawing it from her or varying the terms
on which she holds it …
(3)
(a) “authorisation or qualification” includes
recognition, registration, enrolment, approval and certification.”
Section 12 (1) and (2) contain identical wording in respect of
the Race Relations Act 1976. The Employment Equality (Age)
Regulations 2006 “The Age Regulations”) provides:
“(1) It is unlawful for a qualifications body to
discriminate against a person –
a) in the terms on which it is prepared to confer a
professional or trade qualification on him;
b) by refusing or deliberately not granting any
application by him for such a qualification; or
c) by withdrawing such a qualification from him or
varying the terms on which he holds it
(3) In this regulation – ‘qualifications body’ means
any authority or body which can confer a professional or trade qualification …
“professional or trade qualification” means any authorisation, qualification,
recognition, registration, enrolment approval or certification which is needed
for, or facilitates engagement in, a particular profession or trade.”
12.
No party takes any point on the subtle differences between the Age
Regulations on the one hand and the 1975 and the 1976 Acts on the other
13.
Each legislative provision has a similar section or regulation
restricting the jurisdiction of an Employment Tribunal. Thus section 63 of the
Sex Discrimination Act 1975 provides, under the heading, ‘Jurisdiction
of Employment Tribunals’: -
“(1) A complaint by any person (‘the Complainant’)
that another person (‘the Respondent’) –
a) has committed an act of discrimination … against
the complainant which is unlawful by virtue of part ii … may be presented to an
Employment Tribunal.
(2) Sub-section (1) does not apply to a complaint
under Section 13(1) of an act in respect of which an appeal, or proceedings in
the nature of an appeal, may be brought under any enactment.”
Part II of the Act deals with discrimination in the Employment
field.
14.
There are cognate provisions in the Race Relations Act 1976
(Section 54) and the Age Regulations (Regulation 36 (1) and (2) (a)).
Proceedings before the Employment Tribunal
15.
On 8 June 2010 Employment Judge Tayler in a conspicuously careful and
clear set of reasons ordered that issues of jurisdiction arising out of these
provisions, and the question whether the complaints were out of time, should be
considered at a pre-hearing review. That pre-hearing review came before
Employment Judge Stewart. He concluded that there had been no application for
registration made by the Claimant to the HPC. (She had written in 2009 to the
Privy Council, which is responsible for some of the affairs of the HPC, saying
that she could not proceed through the usual appeal route as she had not been
able officially to apply for state registration as there was no pathway open to
her – she sought to appeal, but did not contend she had made any application).
It was common ground between the parties (see, e.g. paragraph 51) that the
Claimant had never made an application to the HPC such as to receive a decision
on it, or for there to be a failure to make a decision, either of which would
be appealable. He took the view that sections 13 of the SDA, 12 of the RRA
and Regulation 19 of the Age Regulations did not require that there should
first be an application for registration before the action of the qualifying
body could be rendered unlawful:
“They merely required a formulation of terms on which
the qualifying body is prepared to confer registration. If those terms are
discriminatory, then the qualifying body had acted unlawfully.”
Since there had been no application, there could be no internal appeal
to the Council, hence no onward appeal to the County Court, and hence no
statutory provision to prevent a Tribunal having jurisdiction.
16.
Employment Judge Stewart was asked to review his decision. He decided
to do so, and reversed it. It is against that decision, reasons for which were
dated 29 March 2011, that this appeal is brought.
17.
He understood that he was being asked by counsel to accept that the HPC
was required by Parliament (under Article 12 of the Health Professions Order
2001) to consider and set up a list of approved qualifications. He summarised
his decision on this submission in paragraphs 10 and 11 of his Reasons:
“… The Respondent when it exercised its judgement as
to the courses to be included in the list of approved courses was implementing
the will of Parliament. If it implemented that will incorrectly, that is a
matter upon which the Claimant might seek Judicial Review: it does not fall to
an Employment Tribunal to declare that the Respondent has failed to discharge
its function correctly or has been remiss in its interpretation of its remit
from Parliament or that Parliament has failed to comply with the Directives
from Europe. That is the province of the Administrative Court.
11. On the other hand, if the Respondent has
implemented the will of Parliament correctly but the effect of that correct
implementation is that the Claimant is treated less favourably than others in
ways that might suggest unlawful discrimination on the grounds of age, gender
or nationality, then the Respondent has a complete answer in pointing out that
its actions were the embodiment of the will of Parliament and therefore must be
lawful.
12. Therefore I was wrong to ignore the source of the
Rules which the Respondent advised upon …”
Submissions
18.
Before me neither party invited me to uphold the reasoning of Employment
Judge Stewart. The Claimant has had representation from Mr Keen and Ms
Sobiecki of counsel under the auspices of the Free Representation Unit to advance
her arguments, whereas previously before the Judge she appeared in person. Mr Downs
of counsel, who did not appear before Judge Stewart, appeared for the
Respondent. Both parties produced arguments of high quality for which they are
to be commended.
19.
Each party, for its own purposes, contended there had been no actual
application for registration by Doctor King. Although at one stage I had
wondered whether what had happened, factually, might amount to an application
within the meaning of the legislation (if not within HPC’s own rules, there
potentially being a distinction as to the meaning of “application” between those
rules and the statute) neither party asked me to take this course, and I am
content to resolve this case on the basis I do not do so. The utility of this
judgment as a precedent may be limited as a result.
20.
The skeleton originally submitted by Doctor King and answered by the
Respondent was supplemented by a revised argument delivered only two days prior
to the hearing. Though Mr Downs indicated he would have wished more time to
deal with the issues raised, the case had gone on for so long (for various
reasons) that he did not invite any adjournment. Doctor King submitted that
the Judge appeared to be saying that the fact that the statutory regime
required the HPC to draw up a list of approved qualifications meant that it was
obliged by statute to indicate to the Claimant that she could not apply to it
with any prospect of success. If so, this was no basis to decline
jurisdiction. In Hampson v Department of Education and Science
[1991] 1AC 171, the House of Lords held that statutory protection for acts of
discrimination done “in pursuance of any instrument made under any enactment by
a Minister of the Crown” only extended to acts carried out in the necessary
performance of an express statutory obligation and did not extend to
discretionary acts. In General Medical Counsel v Goba [1998]
IRLR 425, the EAT had confirmed that “the act complained of in its doing and
the way it was carried out must have been one which was reasonably necessary in
order to comply with any condition or requirement of the statute or order”. The
fact that the HPC was obliged to consider qualifications under Article 12 did
not excuse it of any discrimination so as to render the Claimant’s case
unarguable.
21.
Mr Downs did not argue the contrary, and expressly accepted that he was
not relying upon the statutory scheme as excusing discrimination and
eliminating jurisdiction.
22.
I agree with Mr Keen’s submissions on this point. The list of approved
qualifications was not laid down by statute. It was left to the choice of the
HPC. The fact that it had to make a choice was prescribed by statute: but not
the nature of the actual choice to be made. There is nothing inconsistent
between a statutory regime requiring a choice to be made, and the
discrimination statutes requiring that any such choice does not have a discriminatory
effect. Accordingly, the Judge was plainly wrong.
23.
However, it is necessary to consider whether, though wrong in his reasoning,
the Judge was nonetheless right in the result as Mr Downs claims he was, and Mr
Keen denies.
24.
The principal focus of Mr Downs’ argument was first that the Claimant
sought to challenge the provisions of the Order under which the HPC operated:
this was the way she had put her case as recorded by Judge Stewart. His
principal argument orally, faced with the new skeleton argument on behalf of
the Appellant, was to argue that section 63 of the 1975 Act (and cognate provisions
in the 1976 Act and Age Regulations) provided that jurisdiction did not
apply to a complaint in respect of which “an appeal … may be brought …”. Thus
the fact there could be no appeal, because there had been no application (the
Claimant having been deterred, but not prevented from making one) was not
relevant: for it was open to the Claimant to take the action which it was
necessary to take to trigger such an appeal. She could, simply by making an
application (as she had not done) provoke a response from the HPC. If the HPC
refused the application, she had an appeal to Council, and if Council did not
accept her appeal, onward to the County Court. The act of which she
complained, therefore, was potentially subject to an appeal.
25.
This was consistent with the scheme of the Act which was designed to
ensure that discrimination (if it existed) was not left unremedied. But it
also preserved the ability of a body charged with professional oversight to
take a careful look within its own procedures at what was alleged. The County Court,
on appeal to it, would have the advantage of a careful and considered approach
by the statutory body charged with overseeing registration for entry to the
profession. That was appropriate, whereas requiring the HPC to address
arguments in the forum of an Employment Tribunal without there having been
careful consideration of the issues internally within the HPC first was not.
The purpose of excluding jurisdiction because of the presence of another appeal
was because Parliament accepted that in the case of qualifying bodies another
appeal route might well be more appropriate. Great damage might be done to
this carefully established structure if parties were at liberty to proceed
against a body such as the HPC where they had made no application for registration
to it in the first place. Thus the scheme should be construed so as to provide
that a Tribunal had no jurisdiction where it lay in the Claimant’s own hands
whether there was an appeal against any substantial injustice she felt she had
suffered. The Claimant here could access an appeal merely by making an
application. Not to make an application, when it was within her power to do so
would be to side step the provisions which ensured that the appropriate route
(appeal to Council, followed by County Court) was followed.
Discussion
26.
As Mr Downs submitted, there is a point preliminary to any question
whether s. 63 of the 1975 Act, s. 54 of the 1976 Act, or Regulation 36 of the Age
Regulation applies. It is whether there has been a complaint, which comes under
section 13 (1) of the 1975 Act (or the corresponding provisions). It is trite
that the Sex Discrimination and Race Relations Acts and the Age
Regulations do not outlaw sex, race, and age discrimination in whatever
circumstances they occur. The circumstances in which such discrimination gives
rise to a claim are carefully defined. For discrimination by a qualifying (or
qualifications) body to be capable of a complaint to an Employment Tribunal it
must come within the terms of section 13 (1).
27.
Whether an indication in advance of any application such as that made by
the HPC here, to the effect that a would-be applicant’s qualifications would
not be acceptable, is such an act depends on the way in which section 13 (1) is
to be construed.
28.
Sub-sections 13 (1) (a), (b), (c), form a coherent group. All deal with
a situation where less than the benefits of full registration are conferred:
(a) deals with conditional registration; (b) with a refusal of registration;
and (c) with a withdrawal of registration. None deals with the process of
application for registration, unless the words “in the terms on which it is
prepared to confer on her that authorisation” comprehend the process of
application. Although on a casual reading of the section, I had initially
taken the words to include such a process, on any focussed consideration it is
clear this is not the case. Neither as a matter of logic or language do the
words cover either facilitating, or hindering the process of application. The
‘terms’ deal with the extent of enjoyment of the authorisation or qualification
once conferred. Linguistically, the authorisation or qualification is to be
provided “on terms”. So viewed, it is plain that (coherent with
the general pattern formed by 1(a), (b) and (c)) the “terms” are the terms
applying to the qualification once granted – effectively, qualification subject
to a condition.
29.
Sub-section 13 (3) does not affect this interpretation.
30.
That the words are used in this sense in s.13 of the Sex
Discrimination Act 1975 is demonstrated by comparison with section 6.
Section 6 (1) provides as follows:
“it is unlawful for a person, in relation to
employment by him at an establishment in Great Britain, to discriminate against
a woman –
(a) in the arrangements he makes for purpose of
determining who should be offered that employment or
(b) in the terms in which he offers her that
employment, or
(c) by refusing or deliberately omitting to offer her
that employment.”
The words in (b) and (c) echo those in section 13 (1) (a) and (b)
with only those alterations which are made necessary by the context. But a
distinction is plainly drawn between “arrangements made for the purpose of
determining” the offer of employment, and the concept of “terms on which
employment is offered.” The terms and conditions of employment, once offered
and accepted, are distinct from the arrangements made for determining who
should receive the offer. There is no sub-section in section 13 equivalent to section
6 (1) (a).
31.
The position under the two other legislative provisions is identical.
32.
Mr Downs took me to Koskinen v Council of Professions
Supplementary to Medicine and the Privy Council [2005] EWCA Civ 363. An
Employment Tribunal held it had no jurisdiction to hear complaints of race discrimination
made against the Health Professions Council (sued in its former name). The
Employment Appeal Tribunal dismissed an appeal. On further appeal to the Court
of Appeal, the Council for Professions Supplementary to Medicine was held not
to be a qualifying body of the kind mentioned in section 12 because the Council
as such did not confer an authorisation or qualification. Though obiter (see
paragraph 89 of the Judgment of Mummery LJ, with which Maurice Kay and Keene
LJJ both agreed) the Court recognised that it was in a position to express a
view on the other grounds which had been fully argued. The second point made to
it by the Council for Professions Supplementary to Medicine had been that the
acts complained of did not fall within the terms of section 12 (1) (a) or (b):
“(Counsel for the Council) contends that the acts
complained of by Mr Koskinen do not fall within these provisions. They have
simply informed him that his UK Diploma is not recognised as a qualification.
93 They have not said anything about the terms on
which they were prepared to confer authorisation or qualification and they have
not refused or deliberately omitted to grant his application, because the
Council never actually received from him a relevant application …
95 … None of the acts of which he makes complaint are
acts which are rendered unlawful by Section 12 (1). It may be that some other
procedure was appropriate for him to follow in order to advance the complaints
which he has made in these proceedings but we are only concerned with whether he
can maintain a claim in the Tribunal under the 1976 Act.
96 In my view, (counsel for the Council) is right.
What he has alleged is not rendered unlawful by Section 12”
33.
Two matters follow. First, the natural reading of section 13 (and section
12 of the 1976 Act) as I see it is also that which appealed to Mummery LJ.
Secondly, though this court is technically not bound by the decision (being
obiter), since it is one with which the entire Court was in agreement, following
argument, it is not merely to be regarded as persuasive but as highly so.
34.
In the course of argument I referred the parties to British Judo
Association v Petty [1981] ICR 660, a decision of the Employment Appeal
Tribunal presided over by Browne-Wilkinson J (as he was). The passage at 664 D
- G makes it plain that he, too, read the provisions in the same way as have I.
35.
Given that the Claimant’s substituted skeleton argument raised points
which the Respondent wished time to consider, and given the prominence which
the argument as to the scope of section 13 (and the commensurate provisions in
the other legislation) adopted during the course of the argument, the parties
wished to consider whether to make further submissions on paper. Those further
submissions draw attention to the case of Virik v General Medical Council
(1995) EAT/919/95, in which the Appeal Tribunal presided over by Tucker J said
“.. the clear wording of the subsection..” (there the Race Relations Act,
s.12) “..relates to terms imposed upon an authorization at the point that it is
granted and does not relate to terms which are a precedent to it being granted.”.
That expresses succinctly the point I make at paragraphs 26-34 above, initially
reached in ignorance of the Virik decision.
36.
Mr Downs argues that the Claimant is in reality complaining about the
likelihood of unlawful discrimination against her if and when she
applied for registration. On that basis, an appeal (or proceedings in the
nature of an appeal) could be brought by her, in respect of the subject matter
of her claim, and the jurisdiction of the Tribunal is thereby excluded by the
statutory provision.
37.
The Claimant seeks to meet these arguments by pointing to the fact that
in other provisions the discrimination statutes allow for anticipated or likely
discrimination (as in the provision that indirect discrimination is made out
where a “..respondent applies or would apply, any provision, criterion
or practice…” (emphasis added)). Thus the provision should be interpreted to permit
the deterred applicant to proceed as if she were a disappointed applicant. She
would interpret the phrase “terms on which (the HPC) is prepared to confer”
the qualification as including, but not limited to, the requirement that the Claimant’s
degree be included on the list of degrees devised by the HPC as a necessary
preliminary to acceptance of an application.
38.
She submitted that Petty was of no assistance in
understanding the scope of the phrase; Virik was a case in which
there was little discussion of the meaning of the word “term”, and the document
which was alleged to be discriminatory in that case was titled “advice”: it did
not contain terms as such. Moreover, the interpretation which appealed to me
(see above) did not take account of developments in Community Law, and the
general acceptance of the principle of equality. European Directives aim to
provide access to occupation and employment which is unfettered by
discrimination. The domestic statutory provisions must be interpreted so as to
permit the Claimant a remedy where otherwise her access to the labour market in
her chosen profession would be hindered by indirect discrimination: given the
proper approach to the construction of legislation (to interpret provisions to the
fullest extent possible to achieve a result in harmony with European Directives
and Regulations) the Acts and Age Regulations should be interpreted so
that a person deterred from application by discrimination should be afforded a
proper chance of a remedy.
39.
I cannot accept the Claimant’s arguments here. I reject her
interpretation of “the terms on which..” (etc). The case law is consistent, and
compelling. My reasoning, independent in origin of those authorities, is to the
same effect. Comparison of the wording of (for example) ss. 6 and 13 of the Sex
Discrimination Act 1975 confirms that the natural reading of the words was
that which Parliament had in mind. The words are not capable of the meaning, in
context, which Mr Keen and Ms Sobiecki would wish to attribute to them.
40.
As to the argument that this natural meaning can and should be stretched
to the extent necessary to accommodate principles of equal treatment derived
from European Union provisions and decisions, I reject that too. Dr King’s potential
claim is in reality one of indirect discrimination. So far as indirect
discrimination is concerned, justification of a particular provision, criterion
or practice is permissible under law. Matters of proportionality come into
play in determining justification, for the discriminatory effect of any such
PCP must be no greater than is necessary to achieve the legitimate aim,
corresponding to a real need of the undertaking, to which the PCP seeks to give
effect. Ensuring a just result and best assessment of proportionality in the
context of professional registration, where there is a public interest in
ensuring that it is not conferred too lightly, nor maintained when it would not
be desirable to do so, is better achieved by reference to the qualifications
(or qualifying) body, which by reason of its structure and membership is
ideally placed to evaluate the pros and cons of any restriction – in this case,
the appropriateness of particular qualifications - than by proceeding to an
employment tribunal without being informed what is the best assessment of the
body directly charged with promoting the public interests in these respects. The
judicial assessment of proportionality will have to balance such conclusion as
properly drawn in respect of those interests on the one hand against the
discriminatory effect of the provision, criterion or practice on the other, and
to do so needs to be properly informed as to those interests and their weight.
Accordingly, where there is an appeal provided for by legislation, as there is
where there is an application made to the HPC, issues of discrimination may be
adjudicated on in the first place by that body, and its decision (which will
indicate its view of the proportionality of any restriction) open to review in
the courts. The principle of equality is not offended by this. The Claimant,
though factually deterred, is not legally prevented from applying to the HPC.
41.
So much for section 13 (1) (a). Subsection 1(b) cannot apply, for there
has been no application to refuse or “deliberately not grant”.
42.
The argument which Mr Downs described as “his best point” when invited
just after the start of proceedings to respond to the appeal, resting on the
word “may” in section 63, does not fall for consideration in the light of my
conclusion that the act complained of (whatever one might think of its merits)
does not fall within the scope of section 13, and hence it is unnecessary to
consider the exclusion of jurisdiction, since jurisdiction has not been
established in the first place.
43.
Lest it be thought that the conclusion is a hard one against the
Claimant, in circumstances which call for sympathy, she has the option of
making an application to the HPC, which if it should refuse would give her the
right of appeal applying the same legal principles as to discrimination as
would an Employment Tribunal.
Conclusion
44.
For the reasons set out above, the Employment Judge was in error of law
in his approach. However, the conclusion to which he came, properly analysed,
depended upon a construction of the relevant sections and regulation. The
conclusion to which he came, though erroneously reasoned, was in the result
plainly and unarguably right. For those reasons, this appeal must be
dismissed.
