Court of Appeal
Appeals and applications for leave to appeal arising out of four sets of proceedings in the Employment Tribunal ('ET') between 1997 and 2000 taken by the claimant doctor ('C') for direct and indirect race discrimination and victimisation contrary to the Race Relations Act 1976 against the British Medical Association ('BMA'), the Royal College of Surgeons ('RCS'), the Secretary of State, the Specialist Training Authority ('STA') and a Dr Platt. In 1995 a new training grade of Specialist Registrar replaced the existing grades of Registrar of Senior Registrar. Doctors holding existing grades had to apply for entry to the new grade. Guidance on the conditions for entry were set out in a Guide to Specialist Registrar Training (the Orange Guide). C was a doctor of Indian ethnic origin. He applied for entry to the new grade confident that he had satisfied the published criteria for transition. He was refused the transfer by a Dr Platt. The reason given was that although his training at the Manchester General Hospital in Urology was, as required by the Orange Guide, 'Royal College Approved', it had not been approved by the relevant sub-committee, in this case the Specialist Advisory Committee in Urology ('SAC'). The refusal of entry in the new training grade affected C's application to be entered on the Specialist Register (maintained by the GMC) and his eligibility for appointment as a consultant. In 1997 C claimed continuing racial discrimination since 1991 both direct and indirect at an ET in Southampton. A point was taken by the respondents that the ET had no jurisdiction to hear the complaint as it was out of time and the act complained of was not 'an act extending over a period' within s.68(7) of the 1976 Act. Later in 1997 C applied unsuccessfully to the SAT for assessment for mediated entry to the Specialist Registrar. Although in their decision to refuse, the SAT did not recognise much of C's UK training, they recognised the training he had done in Manchester which had been disregarded for the purposes of his transition application. C used this information to bolster his case for a transfer and when his request was refused by a letter from Dr Platt, C maintained that the letter was a new decision on his application for entry to the new training grade, giving rise to a fresh cause of action for a discrimination claim. In 1998 C claimed race discrimination at the ET in Manchester relying on the letter. The respondents took the point that the complaint was an abuse of process as it raised matters which were the subject of the Southampton complaint. An appeal against the STA decision to an STA appeal panel was refused and they also refused to include in their considerations a claim for race discrimination. At the ET it was held that the tribunal had no jurisdiction to hear the complaint of race discrimination against the STA as an appeal to the STA was an appeal under an "enactment" within s 54(2). The result was to exclude the ET's jurisdiction to entertain a complaint of race discrimination under s.12. In 2000 C claimed direct discrimination and indirect discrimination by the BMA. An ET found in favour of C on the basis that the BMA had applied the requirement that in order to be supported in claims of discrimination, a member had not to be alleging race discrimination by a Royal College, a member of the SAC, a postgraduate Dean or the STA. The BMA appealed on the grounds that the tribunal's decision was perverse. This ground was struck out by the EAT and BMA appealed. In 2001 C claimed direct and indirect discrimination and victimisation in respect of his rejection of his appeal by the STA panel. He also joined the STA, the RCS and the SAC alleging that they were liable under s.33 of the 1976 Act for aiding acts of discrimination and victimisation by the appeal panel.
HELD: (1) The BMA's appeal from the tribunal's decision on the grounds that the tribunal's decision stating that in order to be supported in claims of discrimination, a member had not to be alleging race discrimination by a RC , a member of the SAC a postgraduate Dean or the STA, was perverse would be heard by consent in the ET. (2) The ET had been correct in their decision that all the claims of race discrimination against all the respondents in respect of the refusal of entry to the specialist registrar grade were at least 7 months out of time and that there was no act extending over a period within s.68(7) of the 1976 Act and it was not just and equitable to extend time under s68(6). (3) No question of law arose from the decision of the ET that the letter did not constitute a decision on C 's application to enter the Specialist Register grade, which would amount to a one-off discriminatory act and would mean that the proceedings were brought in time. (4) There was no real prospect of success in appealing against the ruling of the Manchester ET that the proceedings instituted by C were not an abuse of process. It would have been a disproportionate response to treat the institution of the Manchester proceedings as an abuse of process. The potential risks posed to the public interest and to the private interests of the applicants could be readily overcome by sensible case management decisions. (5) There was no error of law in the ET's interpretation of s.54(2) of the 1976 Act or in the ruling that the ET did not have jurisdiction to entertain C's claim.
 ICR 1510
William Meade (Senior Clerk)