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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Chaudhary v. The Secretary of State for Health [2005] UKEAT 0512_04_0410 (4 October 2005) URL: https://www.bailii.org/uk/cases/UKEAT/2005/0512_04_0410.html Cite as: [2005] UKEAT 512_4_410, [2005] UKEAT 0512_04_0410 |
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At the Tribunal | |
On 12-13 April 2005 and 29-30 June 2005 | |
Before
HIS HONOUR JUDGE PETER CLARK
MR R A LYONS
MR P A L PARKER CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
For the Appellant | MR JOHN HENDY QC and MR GHAZAN MAHMOOD (Of Counsel) Instructed by: Messrs Birchfields Solicitors 10 Knowsley Street Cheetham Hill Manchester M8 8GF |
For the Respondent |
MISS MONICA CARSS-FRISK QC and MR MARK VINALL (Of Counsel) Instructed by: Office of the Solicitor Department of Health Room 540A, New Court 48 Carey Street London WC2A 2LS |
Amendment – Racial Group – Fresh evidence – Perversity – Less favourable treatment by alleged discriminator – indirect discrimination, establishing a prima facie case before the burden of proof moves to the Respondent – Limitation; new decision starting time running.
HIS HONOUR JUDGE PETER CLARK
(1) 2 procedural rulings ("the comparator issue" and "Racial Group") made by a full Employment Tribunal sitting at Manchester under the Chairmanship of Mr M L Creed in January 2004, contained in a 'decision' with Extended Reasons, promulgated on 15 April 2004 (the procedural appeal) and
(2) that Employment Tribunal's substantive decision in those proceedings, dismissing his complaints of both direct and indirect race discrimination and victimisation, promulgated with Extended Reasons on 27 April 2004 (the substantive appeal).
There is also a cross-appeal against 2 findings in the substantive decision.
Background
(1) He described his ethnic origin as Indian.
(2) He is a registered medical practitioner who had trained as a urologist.
(3) He wished to achieve Consultant Status in his field.
(4) In order to do so it was first necessary for his name to be entered on the Specialist Register maintained by the General Medical Council.
(5) In March 1996 the Department of Health issued 'A Guide to Specialist Registrar Training' (The Orange Guide). It set out guidelines for (automatic) transition entry to the grade of Specialist Registrar. If the criteria for transition were satisfied in a particular case, that applicant would receive a National Training Number (NTN).
(6) Mr Chaudhary was originally refused an NTN by Dr Platt, The Regional Postgraduate Dean for Wessex by letter dated 23 July 1996. Mr Chaudhary then held a post at Portsmouth Hospital within the Wessex Region. The reason given was that the post of Registrar which he had held at Manchester General Hospital did not have SAC approval, that is approval by the Specialist Advisory Committee in Urology, a sub-committee of the Surgical Royal Colleges Joint Committee on Higher Surgical Training (JCHST). An appeal against that decision was dismissed on 14 January 1997. Mr Chaudhary persisted and by letter dated 15 December 1998 Dr Platt affirmed his view that Mr Chaudhary did not qualify for automatic entry into the Specialist Registrar Grade. It was that letter which formed the basis of Mr Chaudhary's complaint of unlawful discrimination/victimisation in these proceedings.
The Procedural Appeal
(A) The Comparator Issue
(1) that it would introduce a new claim, requiring further evidence, directed to a new 'discriminator', Mr Bramble, in addition to Dr Platt.
(2) the amendment was very late; the reason advanced for the late application was considered unsatisfactory.
(3) the new claim was well out of time, applying the reasoning of a division of this Employment Appeal Tribunal on which I sat (EAT/919/03/RN. 17 December 2003) in a Respondent's successful appeal against an order made by a Chairman, Miss Woolley, sitting in Manchester, permitting Mr Chaudhary to amend his Originating Application in these proceedings to contend that the 2nd - 6th Respondents were secondary parties, having aided and abetted Dr Platt in the alleged discriminatory act arising out of his decision letter dated 15 December 1998.
(4) the 8th Respondent (Secretary of State) would be considerably prejudiced in terms of fresh investigation and further evidence in the proceedings.
(1) that the Employment Tribunal overlooked Mr Chaudhary's position set out in a letter dated 15 December 2003, that he invited the Employment Tribunal to allow the amendment to add the 2 new comparators, Wedderburn and Hayes, in the existing cause of action and not in a fresh cause of action
(2) The Employment Tribunal stated that the reason given for the late amendment application was not satisfactory without itself giving reasons as to why it was unsatisfactory. Mr Chaudhary submitted that he was unaware of the position relating to Wedderburn and Hayes until he received certain answers from the Respondent dated 5 November 2003, in response to a Questionnaire submitted by him and dated 1 September 2003.
(3) The initial amendment application was made on the basis that the 2 new comparators be taken together (Employment Tribunal Reasons paragraph 16(e)). In reply, Mr Gavin Millar QC, then appearing with Mr Mahmood for Mr Chaudhary, submitted that the 2 new comparators be considered separately (Reasons, paragraph 18). The Employment Tribunal was not prepared to do so (Reasons paragraph 19(j)).
(4) Prejudice to the Respondents. Mr Hendy submits that Mr Chaudhary had not contributed to the delay in making this amendment application; it was caused by the Respondents' late disclosure on 25 November 2003. The proceedings had been in abeyance for almost 6 years, mainly due to the Respondent's application to strike out on the basis of abuse of process, an application which failed at Employment Tribunal, Employment Appeal Tribunal and finally Court of Appeal level.
(B) Racial Group
Section 1 Race Relation Acts 1976 (RRA) provides, so far as is material:
"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –
…
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but –
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it considerably smaller than the proportion of persons not of that racial group who can comply with it, and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied;"
By Section 3(1):
""racial group" means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls."
For these reasons the procedural appeal fails and is dismissed.
The Employment Tribunal Substantive Decision
(1) The North Manchester post held by Mr Chaudhary was not SAC approved. Under Section 2, (Part I) paragraphs 8(b) and (c) of the Orange Guide a relevant career registrar post had to have "educational approval (by the Royal College or Faculty)" which meant approval by the SAC in urology for higher specialist training.
(2) Mr Chaudhary's application for automatic transition into the Specialist Registrar grade was dealt with by Dr Platt, within the Wessex Deanery, on advice from Mr Bramble, the Regional Advisor in urology. Based on that advice; that Mr Chaudhary could not claim automatic transition due to his not having held an SAC approved post; Dr Platt rejected Mr Chaudhary's application. Dr Platt genuinely supported Mr Chaudhary throughout. His treatment of Wedderburn and Hayes was consistent with his treatment of Mr Chaudhary.
(3) In the North West Deanery Lau and Brough were mistakenly granted automatic transition despite their not having held SAC approved posts. Dr Platt was unaware of and had no involvement in their cases. Mr George, Chairman of urology training in the North West Deanery genuinely (albeit mistakenly) believed that Braugh and Lau were entitled to automatic transition.
(4) In these circumstances Mr Chaudhary's case in direct discrimination failed because, although Lau and Brough were proper comparators within the meaning of Section 3(4) RRA (a point to which we shall return in the context of the Respondent's cross-appeal) Dr Platt did not treat Mr Chaudhary less favourably than Brough and Lau because he was not involved in their cases.
(5) The claim of indirect discrimination failed because:
(i) he had not shown disparate impact and
(ii) the requirement for educational approval was justified and
(iii) (iii) Mr Chaudhary has suffered no detriment.
(6) The victimisation claim failed because Mr Chaudhary's protected act, commencing earlier proceedings in the Southampton Employment Tribunal, was not a cause of any action taken by Dr Platt or the Respondent.
(7) The claims were not statute-barred because Dr Platt's letter of 15 December 1998 was a new decision which started time running (purportedly applying the test in Cast v Croydon College [1998] ICR 500 (CA)). This finding is also subject to challenge in the cross-appeal.
The Substantive Appeal
Fresh Evidence
(1) a solicitor's note of evidence given by Professor Temple in a claim brought by a Mr Malkan heard on 19 December 1997 in the Birmingham Employment Tribunal
(2) an affidavit sworn by Mr Malkan on 14 February 2005.
(3) a witness statement made by Mr Loveland, a witness in the Manchester 1 proceedings, dated 28 November 2003 and served on Mr Chaudhary on 4 December 2003.
Perversity and Adequacy of Reasons
Less Favourable Treatment
Burden of Proof
"Dr Platt did not treat the [Claimant] less favourably than he treated Mr Lau and Mr Brough because he did not have any involvement in or knowledge of Mr Lau's and Mr Brough's case."
Cross-appeal
(1) Proper Comparators
(2) New Decision
"I do not regard it as part of the ratio of the Rovenska decision ([1998] ICR 500 (CA)] that a decision following consideration of a repetition of an earlier request can only amount to an act of discrimination in its own right if the further request contains fresh material."
Conclusion