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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> British Medical Association v Chaudhary [2003] EWCA Civ 645 (15 May 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/645.html Cite as: [2003] EWCA Civ 645, [2003] ICR 1510, [2003] Lloyd's Rep Med 409 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MUMMERY
and
LORD JUSTICE LATHAM
____________________
BRITISH MEDICAL ASSOCIATION |
Appellant |
|
- and - |
||
MR R CHAUDHARY |
Respondent |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
Crown Copyright ©
TOPIC PARAGRAPH
I. INTRODUCTION
Mr Chaudhary 1-3
Discrimination disputes outlined 4-9
II. GENERAL BACKGROUND TO APPLICATIONS
New Specialist Registrar grade 10-15
Mr Chaudhary's application for NTN 16-28
Southampton tribunal proceedings 29-31
STA application 32-36
Manchester tribunal proceedings 37
STA appeal panel 38-44
Manchester tribunal proceedings (STA) 45
BMA tribunal proceedings 46-47
III. PARTICULAR PROCEEDINGS, APPEALS AND APPLICATIONS
BMA proceedings, appeals and application 48-56
Southampton proceedings, appeal and application 57-69
Manchester proceedings, appeal and application 70-83
STA proceedings, appeal and application 84-120
IV.OUTCOMES: SUMMARY. 121
Lord Justice Mummery :
INTRODUCTION
Mr Chaudhary
Discrimination disputes outlined
II. GENERAL BACKGROUND TO APPLICATIONS
New Specialist Registrar Grade
"a. senior registrars and honorary senior registrars; and
b. career registrars and honorary registrars who hold either a substantive career registrar appointment or an honorary registrar appointment (for example, lecturers) with staffing and educational approval (by the Royal College or Faculty) recognised by the postgraduate dean; this includes substantive career registrars in this category who are now occupying senior registrar posts on a locum basis."
Mr Chaudhary's application for NTN
" the appointment process to [the] Registrar post in North Manchester did not conform to the criteria and conditions then in force for an NHS Career Registrar post. This is because the post was not recognised by the SAC in Urology for Higher Specialist Training."
Southampton tribunal proceedings
The STA application
The Manchester tribunal proceedings
STA appeal panel
" 6. The principal function of the Appeal Panel is to decide the Appeal. It is not under a duty to pronounce separately on a complaint of racial discrimination, particularly where in the context of the Appeal that ground has not been substantially relied upon. The decision in R v.Department of Health ex parte Ghandi [1991] 4 All ER 547 is relevant."
Manchester tribunal proceedings (STA)
BMA tribunal proceedings
I. PARTICULAR PROCEEDINGS, APPEALS AND APPLICATIONS
A. BMA proceedings, appeals and application
B.The Southampton proceedings, appeal and application (2001/1894)
"(1) An employment tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of-
(a) the period of three months beginning when the act complained of was done; or
(b) [not material]
(6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(7) For the purposes of this section-
(a) [not material]; and
(b) any act extending over a period shall be treated as done at the end of that period; and
(c) a deliberate omission shall be treated as done when the person in question decided upon it;
and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done."
Act extending over a period
Professor Temple's Role
Refusal to extend Period
C. The Manchester proceedings and appeal (2002/0121 and 2002/0122)
" too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not."
D. The Manchester proceedings (STA) and appeal
(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 [Discrimination in the Employment Field]; or
(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the complainant,
may be presented to an employment tribunal.
(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, "
"(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-
(a) in the terms on which it is prepared to confer on him that authorisation or qualification; or
(b) by refusing, or deliberately omitting to grant, his application for it; or
(c) by withdrawing it from him or varying the terms on which he holds it.
(2) In this section
(a) "authorisation or qualification " includes recognition, registration, enrolment, approval and certification;
(b) "confer" includes renew or extend."
" (1) A person is entitled to have his name included in the specialist register if he applies to the Registrar of the GMC and satisfies him-
..
(b) that he falls within paragraph (2).
(2) A person falls within this paragraph if-
.
(c) he has satisfied the STA that-
(i) he has been trained in the United Kingdom in [a medical speciality other than general practice] and that training complied with the requirements relating to training in that speciality current in the United Kingdom at the time he undertook it, or
(ii) he has qualifications awarded in the United Kingdom in such a speciality which, together with any experience which he has in the speciality in question and any further training which he has undertaken at the recommendation of the STA under (2B), give him a level of expertise equivalent to the level of expertise he might reasonably be expected to have attained if he had a [Certificate of Completion of Specialist Training] in that speciality."
" (1) The STA shall secure that-
(a) a person to whom it refuses to award a CCST;
(b) a person who fails to satisfy the STA that he is an eligible specialist in accordance with Article 9(2) or (3); and
(c) a person who fails to satisfy the STA of the matters referred to in Article 8(4)(b) or 12(2)(c),
has the right to appeal against its decision to a panel of independent persons (in this article referred to as an "appeal panel") which shall be convened by the STA as soon as practicable to reconsider the question and determine whether or not the appellant should be awarded a CCST or should so satisfy the STA (as the case may be)."
(2) The STA shall determine and publish the procedure governing its selection of the members of appeal panels and the conduct of appeals.
(3) The STA shall secure that an appeal panel gives reasons for its determination."
" . there is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specified Treaty obligations; and if one of the meanings that can reasonably be attributed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is so consonant is to be preferred."
" it is already well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it. "
"[Section 12 (1)] concerns qualifications for professions and trades. Parliament appears to have thought that, although the industrial tribunal is often called a specialist tribunal and has undoubted expertise in matters of sex and racial discrimination, its advantages in providing an effective remedy were outweighed by the even greater specialisation in a particular field or trade or professional qualification of statutory tribunals such as the Review Board, since the Review Board undoubtedly has a duty to give effect to the provisions of s12 .This seems to me a perfectly legitimate view for Parliament to have taken. Furthermore, s54(2) makes it clear that decisions of the Review Board would themselves be open to judicial review on the ground that it failed to have proper regard to the provisions of the Race Relations Act. In my view, it cannot be said that Medical Act 1983 does not provide the effective remedy required by European law"
" It seems to me quite clear that s54 provides that where there is an alternative remedy provided by statute, that remedy excludes the remedy under s 54(1)."
" Section 54(2) distinguishes between an act under s 12(1), in respect of which complaint is made, and an appeal in respect of that act. In my judgment, it follows that for these purposes the appeal cannot itself be the act in respect of which complaint is made."
" ..in some contexts the word "enactment" may include within its meaning not only a statute but also a statutory regulation but, as it seems to me , the word does not have that meaning in the Act of 1960. On the contrary, the language used in a number of instances strongly suggests that in this particular Act the draftsman was deliberately distinguishing between an enactment and a statutory regulation."
IV. THE OUTCOMES: A SUMMARY
(1) BMA appeal (2002/1587)
I would make an order in the terms of the draft consent order agreed between the parties and approved by the court on 11 February 2003.
(2) Southampton proceedings application (2001/1894)
I would refuse Mr Chaudhary's application for permission to appeal on the ground that there is no real prospect of success in the appeal against the decision of the employment tribunal that the originating application was presented by Mr Chaudhary out of time or in their refusal to exercise its discretion to extend the time. I would grant permission to appeal on the continuing act point, but I would dismiss the appeal, as there was no error of law on that point in the decision of the employment tribunal.
(3) Manchester proceedings applications (2002/0121 and 2002/0122)
I would refuse the applications for permission to appeal by the Secretary of State and by Dr Platt on the ground that there is no real prospect of success in appealing against the ruling of the Manchester employment tribunal that the proceedings instituted by Mr Chaudhary were not an abuse of process.
(4) Manchester proceedings (STA) application (2001/2717)
I would grant permission to appeal to Mr Chaudhary, but I would dismiss the appeal on the ground that there is no error of law in the employment tribunal's interpretation of s 54(2) of the 1976 Act or in the ruling that the employment tribunal does not have jurisdiction to entertain Mr Chaudhary's originating application.
Lord Justice Latham:
Lord Justice Pill:
LORD JUSTICE MUMMERY:
Note 1 Case No A1/2002/1587 [Back] Note 2 Case No A1/2001/1894 [Back] Note 3 Case No A1/2002/0122 [Back]