If you found BAILII useful today, could you please make a contribution?
Your donation will help us maintain and extend our databases of legal information. No contribution is too small. If every visitor this month donates, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
United Kingdom Employment Appeal Tribunal |
||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> King v Health Professions Council (Race Discrimination : Discrimination by other bodies) [2012] UKEAT 0169_11_1307 (13 July 2012) URL: http://www.bailii.org/uk/cases/UKEAT/2012/0169_11_1307.html Cite as: [2012] UKEAT 0169_11_1307, [2012] Eq LR 852, [2013] ICR 39, [2012] UKEAT 169_11_1307 |
[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2013] ICR 39] [Help]
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At the Tribunal
Judgment handed down on 13 July 2012
Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)
HEALTH PROFESSIONS COUNCIL RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
(of Counsel) & MS MONIKA SOBIECKI Instructed by: Free Representation Unit
|
|
|
(of Counsel) Instructed by: Bircham Dyson Bell LLP 50, Broadway London SW1H OBL
|
SUMMARY
DISCRIMINATION BY QUALIFYING/QUALIFICATIONS BODY
A medical professional who had taken a career break sought to return to her work as a biomedical scientist, for which she required to be registered anew by the Health Professions Council. She was deterred from applying when it indicated in correspondence that her qualifications were not sufficient to be recognised, and wished to bring a claim alleging discrimination on the grounds of sex, race and age against the HPC, since (in particular) a doctor resident abroad who applied for registration with her qualifications would (she claimed) be acceptable, whereas she was not. When she claimed, the Employment Judge first accepted jurisdiction, then on review declined jurisdiction but on a basis the parties agreed to be erroneous. The relevant statutes all provide that for there to be a claim of discrimination against a qualifying (or qualifications) body, it must be “in the terms on which it is prepared to confer a professional or trade qualification on him”. It was held on appeal that this phrase did not cover letters to the Claimant saying that certain qualifications would not be accepted if she were to apply. Nor was there refusal of an application, since none had yet been made. Accordingly, there was no jurisdiction, since the Act did not provide for it. The Claimant was not without remedy, since it remained open to her to apply.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
“(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.”
“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 … .”
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 ….”
The Discrimination Provisions
“(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.”
“(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.
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.
“… 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
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.
Discussion
29. Sub-section 13 (3) does not affect this interpretation.
“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.
“(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”
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.
Conclusion