An employment tribunal did not have jurisdiction to hear a medical professional's sex, race and age discrimination claims in respect of the likely rejection of her application for registration with the Health Professionals Council.
The appellant (K) appealed against an employment judge's decision to decline jurisdiction in respect of her discrimination claims against the respondent Health Professions Council (HPC).
K was a medical professional who had various qualifications in biomedical science. She had taken a career break, and by the time she intended to return to work she needed to be registered with the HPC. K did not formally apply to be registered, but the HPC indicated in correspondence that her qualifications were not approved under the Health Professions Order 2001 art.9, and therefore she would not be registered if she applied. K brought proceedings against the HPC for sex, age and race discrimination. The judge initially accepted jurisdiction, but subsequently reversed his decision. The Sex Discrimination Act 1975 s.13(1) provided that it was unlawful for bodies which could confer an authorisation or qualification which was needed for or facilitated engagement in a particular trade to discriminate in the terms on which it was prepared to confer that authorisation or qualification. Section 63(2) of the 1975 Act provided that a complaint under s.13(1) in respect of which an appeal could be brought under any enactment could not be presented to an employment tribunal. There were cognate provisions in the Race Relations Act 1976 and the Employment Equality (Age) Regulations 2006.
The HPC argued that K would have a right of appeal if her application was rejected, and therefore the judge had no jurisdiction within the meaning of s.63.
HELD: (1) The judge was wrong to decline jurisdiction for the reason that he had, namely because the fact that the statutory regime required the HPC to draft a list of approved qualifications meant that it was obliged by statute to indicate to K that she could not apply to it with any prospect of success. The fact that the HPC had to draft a list of approved qualifications was prescribed by statute, but not the nature of the actual choice it had to make. There was no inconsistency between a statutory regime requiring a choice to be made and the discrimination statutes requiring that any such choice did not have a discriminatory effect (see paras 20, 22 of judgment). (2) Although the judge was wrong in his reasoning, it was still necessary to consider whether he was correct to decline jurisdiction. The wording of s.13(1) did not cover an application for registration. Neither as a matter of logic or language did the words "in the terms on which it is prepared to confer on her that authorisation" cover either facilitating or hindering the application process. The "terms" dealt with the extent of enjoyment of the authorisation or qualification once it was conferred. Linguistically, the authorisation or qualification was to be provided "on terms", and it was plain that the "terms" were those applying to the qualification once it was granted. That conclusion was supported by s.6(1) of the 1975 Act, which distinguished between "arrangements made for the purpose of determining" an offer of employment and the concept of "terms on which employment is offered". The terms and conditions of employment, once offered and accepted, were distinct from the arrangements made for determining who should receive the offer, Koskinenv Council of Professions Supplementary to Medicine  EWCA Civ 363 and British Judo Associationv Petty  I.C.R. 660 considered. If K applied for registration and was refused, she could appeal to the HPC: accordingly, the tribunal's jurisdiction was excluded by s.63. K's argument that the natural meaning of s.13(1) should be stretched to accommodate principles of equal treatment derived from European Union law was rejected. Accordingly the judge's conclusion, though erroneously reasoned, was in the result plainly and unarguably right (paras 23, 28, 30, 36, 40).
 ICR 39 (EAT)
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