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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Chaudhary v Specialist Training Authority Appeal Panel & Ors  EWCA Civ 282 (16 March 2005)
Cite as:  EWCA Civ 282,  ICR 1086
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE D PUGSLEY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE NEUBERGER
| RAJENDRA CHAUDHARY
|- and -
|SPECIALIST TRAINING AUTHORITY APPEAL PANEL & ORS
Smith Bernal WordwaveLimited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr P Havers QC & Mr P Mead (instructed by Messrs. Stone, King, London) for the Respondents
Crown Copyright ©
Lord Justice Pill :
"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."
Section 54 provides:
"(1) A complaint by any person ("the complainant") that another person ("the respondent")-
(a) committed an act…against the complainant which is unlawful by virtue of Part II [which includes section 12], section 76ZA or, in relation to discrimination on grounds of race or ethnic or national origins, or harassment, sections 26A, 26B or 76; or
(b) is by virtue of section 32 or 33 to be treated as having committed such an act…against the complainant,
may be presented to an employment tribunal.
(2) Sub-section (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."
Chaudhary (No.1) and the present permission.
"This appeal concerns the extent of the jurisdiction of the employment tribunal to entertain complaints of acts of race discrimination under section 12 of the 1976 Act. Is that jurisdiction excluded under section 54(2) of the 1976 Act in view of the statutory jurisdiction of the appeal panel in respect of decisions of the specialist training authority?"
It is conceded that the Appeal Panel is a qualifying body within the meaning of section 12 of the Act.
"Mr Chaudhary's complaint is of race discrimination in the refusal of the specialist training authority to enter him on the specialist register. His case is that the criteria by which the specialist training authority assessed his application and the application of the criteria involved unlawful discrimination on the ground of race and victimisation."
a) Remedies are less comprehensive, for example, compensation for injury to feelings cannot be obtained.
b) The procedure is less favourable, for example, in not having a requirement to answer a questionnaire.
c) The ordinary courts lack the expertise of Chairman and members of employment tribunals in relation to employment matters and, in particular, discrimination issues. For example, a jurisdiction in relation to the drawing of inferences, an important aspect of discrimination cases, has been developed in employment tribunals.
d) Judicial review offers less opportunity to investigate issues of fact which may, in relation to indirect discrimination for example, be complex.
e) In an employment tribunal, an applicant is not normally vulnerable in costs; in judicial review he is.
The Appeal Panel
"(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."
"Under the STA Appeals Regulations the appeal panel consists of a legally qualified chairman and two Fellows of medical Royal Colleges and Faculties, other than the college responsible for the speciality of the appellant. The members of the panel are nominated by a legally qualified Director of Appeals, who is under a duty "to strive to maintain the impartiality of the appeal system". The Fellows volunteer for the duty. They are unpaid, though they are reimbursed by the STA for their travelling expenses. Oral hearings may take place, to which the rules of natural justice apply. The parties may be represented. Evidence may be given. The function of the appeal panel in hearing an appeal of the kind brought by Mr Chaudhary is to reconsider the decision of the STA and determine whether he is an eligible specialist. Reasons must be given for decisions and rulings."
Khan v General Medical Council and Chaudhary (No.1)
"Although they were attractively presented, I, for my part, was not persuaded by any of the arguments advanced to us on behalf of Dr Khan. It seems to me that the two-stage procedure provided for in Section 25 and Sections 28 and 29 of the Act of 1983 clearly fell within the formal procedure which is envisaged by Section 54(2) of the Act of 1976. The decision at the first stage, under Section 25, was taken by a committee which was set up for that purpose under paragraph 15 of Schedule 1. An applicant, such as Dr Khan, who was dissatisfied was then able to ask for the matter to be reviewed by the Review Board. The matter then went to the Review Board set up in the manner prescribed by Section 28. The Board made a determination and expressed an opinion. In the light of that opinion, the president made his decision. …
In my judgment, this was a two-stage decision which is aptly covered by the words of Section 54(2). It was submitted that this procedure does not enable the medical practitioner to seek an effective judicial remedy. In my judgment, that argument does less than justice to the fact that the review procedure is provided for by statute. Parliament has enacted, for the purpose of adjudicating on these medical qualifications, that the machinery set out in Part III of the Act of 1983 is the proper machinery. It is the prescribed substitute in this particular area for the machinery which in other areas is covered by the work of an industrial tribunal."
"I turn then to the argument that the relevant act of discrimination – that is the act for the purposes of Section 12 of the Act of 1976 – was the decision of the president. In my judgment, this argument, which I think it is fair to say emerged at a late stage, does not fit in with the provisions of the Act of 1976. We are dealing here with Section 12(1)(b). What is complained of is the refusal of the application. In that context, that clearly refers to the original refusal by the committee, who considered Dr Khan's application under section 25 of the Act of 1983. Section 54(2) of the Act of 1976, in my judgment, is directed to an appeal or proceedings following that first determination.
Finally, one comes to the argument that the effect of Section 54(2) is not to operate as a bar to a complaint to an industrial tribunal and that the proceedings under Section 29 of the Act of 1983 merely have to be exhausted, but once they have been exhausted then the application or complaint can be made to the industrial tribunal under Section 54(1). Mr Allen fairly described that argument as a matter of first impression. I must admit, whether one deals with it on the first or second impression, I am unable to accede to it. It seems to me quite clear that Section 54(2) provides that, where there is an alternative remedy provided by statute, that remedy excludes the remedy under Section 54(1)."
"For my part, I do not see why it should not be regarded as an effective remedy against sex or race discrimination in the kind of case with which Section 12(1) of the Race Relations Act 1976 deals. That 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 proving 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 Section 12 of the Act of 1976: see per Taylor LJ in Reg v Department of Health, ex parte Gandhi  ICR 805, 814. This seems to me a perfectly legitimate view for Parliament to have taken. Furthermore, Section 54(2) makes it clear that decisions of the review board would themselves be open to judicial review on the ground that the board failed to have proper regards to the provisions of the Race Relations Act 1976. In my view, it cannot be said that the Medical Act 1983 does not provide the effective remedy required by Community Law.
I can deal more shortly with Mr Allen's alternative submission which was that the matter about which his client was making complaint under Section 12(1) of the Act of 1976 was not the original decision not to register him, but the decision of the Review Board, against which there was no appeal and which, therefore, did not come within Section 54(2) of the Act of 1976. Section 54(2) distinguishes between an act under Section 12(1), in respect of which complaint is made, and an appeal in respect of that act. In my judgment, if follows that for these purposes the appeal cannot itself be the act in respect of which complaint is made."
"On a purposive approach the "act" in Section 54(2) of which complaint is made under Section 12 is, in this case, that of the STA in refusing Mr Chaudhary's application for registration: it is not the act of the Appeal Panel in rejecting the appeal, against which there is no appeal".
"In my judgment, "enactment" in the context of Section 54(2) is unambiguous. On this point I agree with the decision of both the employment tribunal and of the appeal tribunal. "Enactment" includes the subordinate legislation under which the appeal is brought (i.e. the 1995 Order). It is not confined to appeals brought under primary legislation. I cannot detect any sensible or rational purpose in restricting the operation of the section to appeals brought under primary legislation and in excluding appeals brought under subordinate legislation. The wider construction is more consistent with the rationale of Section 54(2) expounded by Hoffmann LJ in Khan."
a) Whereas under the Medical Act, a review board can only "review" the earlier decision, the Appeal Panel may "reconsider" the question and "determine" it.
b) The present complaint is that the Appeal Panel itself acted in a discriminatory manner whereas in Khan and in Chaudhary (No.1) the complaint was of racial discrimination at a earlier stage in the procedure. On the concession that the Appeal Panel is "a qualifying body" within the meaning of Section 12 of the 1976 Act, the Panel's conduct involves a fresh "act" within the meaning of Section 54(2) (paragraph 9 above).
c) The limitations upon a remedy by way of judicial review (paragraph 11 above) require further consideration.
d) The conclusions in the earlier decisions as to the meaning of Section 54(2) require review now that the 1998 Act is in force (paragraph 10 above). Mummery LJ considered points arising from Article 6 of the Convention in Chaudhary (No.1) but did not determine them.
"The basic principle underlying Article 6(1) is that "civil claims must be capable of being submitted to a judge for adjudication": see Fayed v United Kingdom  18 EHRR 393, 429, para 65. Thus a typical case within Article 6(1) is where a person enjoys under national law what is arguably a civil right but the only forum for deciding a dispute over the existence or enforcement of the right is a tribunal which is not independent and impartial. So procedural bars on bringing claims to court may fall within Article 6(1). So also may procedural bars having the effect of preventing claims being decided on their merits. Tinnelly & Sons Ltd v United Kingdom  27 EHRR 249, 288-292, paras 72 to 79, is an example of the latter. The issue of a "national security" certificate had the effect of preventing complaints of religious discrimination being considered on their merits by a Fair Employment Tribunal. That was a violation of Article 6(1)."
Procedure and substance
"The distinction between the substantive content of a right and an unacceptable procedural bar to its enforcement by a court can give rise to difficulty in distinguishing the one from the other in a particular case. As a matter of drafting, a restriction on the scope of a right may be framed in several different ways. But the drafting technique chosen by the draftsman cannot be determinative of this issue. Human Rights conventions are concerned with substance, not form, with practicalities and realities, not linguistic niceties. The crucial question in the present context is whether, as a matter of substance, the relevant provision of national law has the effect of preventing an issue which ought to be decided by a court from being so decided. The touchstone in this regard is the proper role of courts in a democratic society. A right of access to a court is one of the checks on the danger of arbitrary power. In Matthews v Ministry of Defence  1 AC 1163, 1207-1208, para 142, Lord Walker of Gestingthorpe noted that Article 6 is in principle concerned with the procedural fairness and integrity of a state's judicial system. Lord Hoffmann observed, at p447, para 29, that it should not matter how the law is framed, provided one holds onto the underlying principle which is to maintain the rule of law and the separation of powers.
On my findings, there is no breach of Article 6 even if Section 54(2) and the 1995 Order are treated as a potential "procedural bar". It is not necessary on that view of the present case to attempt to resolve the question posed by Lord Nicholls and, especially as submissions on the point have been brief, I do not propose to do so.
Lord Justice Keene:
Lord Justice Neuberger: