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03/12/2009

Igboaka v. Royal College of Pathologists

Uncategorized

Employment Appeal Tribunal

 
The employment tribunal had been entitled to find that a doctor's claims of race discrimination under the Race Relations Act 1976 s.12 and s.13 against the Royal College of Pathologists had no reasonable prospect of success.

The appellant doctor (X) appealed against an employment tribunal's decision to strike out his claims of race discrimination against the respondent college. X was black and a Fellow of the college. He had alleged that the General Medical Council (GMC) had unlawfully discriminated against him on the grounds of his race by suspending his registration and erasing his name from the medical register. He also alleged that the college had aided and abetted the decision of the GMC's Fitness to Practice Panel (FTPP). The college decided to defer investigating his complaints until the GMC and employment tribunal processes had been completed. The tribunal found that the Race Relations Act 1976 s.54(2) applied and that it had no jurisdiction to hear the complaints against the GMC as X had a right of appeal to the High Court under the Medical Act 1983 s.40(1)(a). The tribunal also found that it followed that it had no jurisdiction to hear a claim of aiding an unlawful act against the college under s.33 of the 1976 Act. The college had assisted X in obtaining a training place in a hospital but the tribunal found that the college was not a body providing vocational training for the purposes of s.13 of the 1976 Act and concluded that X's claims had no reasonable prospect of success. X submitted that the tribunal had erred in (1) holding that the college was not a person concerned with the provision of training for the purposes of s.13; (2) finding that there had been no variation, for the purposes of s.12 of the 1976 Act, in the qualification of Fellowship bestowed on him by the college; (3) finding that the acts complained of were the acts of the GMC and not acts for which the college was principally liable.

HELD: (1) On the assumption that it was at least arguable that when the college assisted X in obtaining training at the hospital it was making arrangements for training which fell within s.13(1), that was not the end of the matter. Section 13(1)(a) to (d) circumscribed the nature of the actionable discrimination of which X could complain and he had not complained about that training. If he had, such a complaint would be out of time. Neither of his complaints were about training and, consequently, the claim as constituted did not even arguably fall within s.13 and was bound to fail. (2) The college was a qualifying body for the purpose of granting a Fellowship within the meaning of s.12. However, the tribunal made clear findings of fact that X had retained his Fellowship of the college and that the terms of that Fellowship were not varied. Although a variation might be implied, there was no indication that the tribunal had excluded that possibility. It simply accepted that there was no evidence to support a variation of the terms on which X held his Fellowship. X sought to link the suspension from practice by the GMC with some sort of limitation on his qualification as a Fellow of the college and sought to equate the actions of the college with the decision of the FTPP. However, his inability to practise was entirely due to the actions of the FTPP and had nothing to do with any limitation on his Fellowship, there being none, British Judo Association v Petty (1981) ICR 660 EAT considered. (3) The tribunal was entitled to find that the acts of suspension of his registration and erasure from the register were those of the GMC through its FTPP and not the college. The college could not be liable as an accessory to that act for the reasons given by the tribunal. The complaint regarding the college's deferment of the investigation into X's grievances was nothing to do with the GMC and the college's decision in that respect could not be linked to any variation of the terms on which he held his Fellowship for the purposes of s.12(1)(c), nor was it a complaint about training opportunities for the purposes of s.13. Neither of the complaints raised any cause of action under s.12 or s.13 and the tribunal was right to strike out the claims.

Appeal dismissed

Counsel For the respondent: Jonathan Davies
 

[2010] Med LR 78
igboaka.pdf

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