Dr A Herane Vives v Institute of Psychiatry, Psychology, Neuroscience, Kings’ College London and others: 2303996/2018

EMPLOYMENT TRIBUNALS

Case No 2303996/2018

Between

Dr A Herane VivesClaimant

1) Institute of Psychiatry, Psychology, Neuroscience, Kings’ College London 2) Health Education England, London 3) National Institute for Health Research 4) Royal College of PsychiatristsRespondent

Before

Employment Judge Davies

Date 20 March 2023

JUDGMENT

Upon withdrawal by the Claimant, the claim against the First Respondent, Institute of Psychiatry, Psychology, Neuroscience, Kings’ College London, is dismissed For the avoidance of doubt, the claims against the other Respondents continue. Acting RESERVED JUDGMENT

[1]The Claimant’s claims against the Third and Fourth Respondent are struck out on the ground that they have no reasonable prospect of success.

REASONS

[1]This hearing was listed after a telephone preliminary hearing before Acting Regional Employment Judge Davies on 11 March 2019 to consider whether claims that the Claimant pursues against the Third and Fourth Respondent have no reasonable prospect of success and should be struck out. In the alternative whether they have little reasonable prospect of success and a deposit order should be paid as a precondition to continuing with the claim.

[2]The Tribunal had before it witness statements from the Claimant and Mr Lyddiard of the Third Respondent. Although there was a discussion about whether the Tribunal should accept a statement from the Fourth Respondent, this was not allowed in as it was disclosed late.

[3]The Tribunal also had before it written submissions from the Claimant, the Third and Fourth Respondent, two bundles of documents containing 717 pages and the Tribunal was referred to various documents in the bundle. Oral submissions were provided by all parties.

[4]By the date of this hearing the Claimant had withdrawn his claim against the First Respondent. The Outline Facts of the case.

[5]The outline facts of the case are that the Claimant is a UK resident and of Chilean Nationality. He completed what is described as his core training in Chile (CT1-3). He worked for 5 years in Chile as an Adult Psychiatrist. The Claimant then moved to London in 2011 and obtained a full scholarship to undertake post graduate studies at Kings College Hospital. He then did a Master’s degree in Psychiatric Research and a PhD in Psychological medicine.

[6]Since 2017 the Claimant has been undertaking a Clinical Development Fellowship (CDF) at the Maudsley which is administered by Kings Improvement Science which became part of the National Institute for Health Research (NIHR) in 2014. The Claimant was informed that his first year of the CDF is equivalent to Higher Level ST4 and the second year is equivalent to ST5. The Claimant’s training requires him to do three years at a higher level of training (ST4-6).

[7]The Claimant wished to become a Consultant Psychiatrist and to do this via the Integrated Clinical Academic Training (ICTT), this is a substantive role with academic training and not an academic post. The route the Claimant sought to follow was the post-doctoral ACL post.

[8]The Claimant applied to be appointed to a post-doctoral Academic Clinical Lecturer (ACL) post on the 30 July 2018 but was rejected by the Second Respondent on the 16 August 2018 on the ground that he failed to meet the necessary criteria. The criteria was that he did not have the “MRCPsych examination or [equivalent] EEA eligibility” “the criterion”, the rejection letter was on page 389.

[9]The Claimant stated that the criteria applied to him is directly or indirectly discriminatory and stated that at all material times he had obtained the same or equivalent standard qualifications outside the UK/EEA. The Claimant stated that the rejection of his application for an ACL position was discriminatory on the grounds of his Chilean/non-EEA nationality. He claimed in the alternative that the Respondents’ were qualifications bodies or employment service providers (under Sections 53 or 55) or that they instructed caused or induced contraventions under section 111 of the Equality Act.

[10]The Claimant stated that crucial facts remain in dispute in relation to who was responsible for setting and then applying the criteria. It is for this reason it was not possible to withdraw the claims against the Third and Fourth Respondent until this has been established. Submissions of the Third Respondent in support of their strike out application

[11]The headline response of the Third Respondent was that they did not have any responsibility for determining whether the Claimant should be accepted on to the ACL and on what ground. The claim has no reasonable prospect of success. The Third Respondent submitted that to the extent that anyone has discriminated against the Claimant, it must be the body that established the criterion in respect of ACL admissions or in the alternative, the body that acted on the criterion.

[12]It was not clear who established the criterion and the evidence at its highest was that “the criterion (said to be discriminatory) was administered by NIHR” (see page 18 of the bundle paragraph 57 of the ET1). It was further said that “it appears that those responsible for setting the criteria are (the Second Respondent) and NIHR who may just administer it” (paragraph 63 of the ET1). The Third Respondent accepted that there was a high degree of opacity about which organisation set the criteria or whether it was one of the Respondents.

[13]The Third Respondent submitted that the NIHR is a body established by the Department of Health and Social Care to fund commission and coordinate the research activities of the NHS. It does not have a distinct legal personality and different parts of the NIHR’s operations are hosted by distinct legal identities that are based in NHS trusts. The Tribunal has a statement from Mr Lyddiard the Chief Operating Officer of the NIHR Clinical Research Network South London, this organization did not have a distinct legal identity. The Claimant has presented his claim against the NIHR Clinical Research Network South London, which is hosted by Guy’s and St Thomas’s NHS Foundation Trust. The Clinical Research Network (CRN) South London is one of 15 CRN’s.

[14]The Third Respondent indicated that if the Claimant wished to pursue his claim, the name of the Respondent must be amended to Guy’s and St Thomas’s NHS Foundation Trust. The Third Respondent responded to the point made in the Claimant’s written submissions at paragraph 49 where it was stated that they had the power to enter into contracts, page 441 was an example of a Partner Contract Pro Forma. This document showed the agreement is made via the host organization. The Third Respondent lacks legal status as the Claimant is pursuing the local CRN and not the National Body. The Third Respondent stated that the name of the host organization must be substituted or the claim should be struck out.

[15]The Third Respondent had no responsibility for setting or applying the criterion and there was no basis for asserting that they did. It was accepted that there was a degree of opacity as to who set the criterion. Although there was some suggestion contained in the GMC’s guidance note (pages 244 and 432) that the NIHR played some role via the TCC which is part of the NIHR and based in Leeds (page 315), this was distinct from the NIHR CRN South London and was not hosted by Guy’s and St Thomas’s NHS Foundation Trust. Mr Lyddiard has explained the significance of the word host stating that the hospital would provide administrative support and would receive funding to deliver the functions of the CRN. He explained that about 65 staff worked in the CRN but they were employees of Guy’s. The purpose of the CRN was therefore to provide infrastructure support in terms of staff, dissemination of funding and running the research. The Third Respondent cannot be responsible for anything done by another part of the NIHR not hosted by Guy’s and St Thomas’s as they have their different separate legal personalities as determined by the host trust.

[16]In oral submissions the Third Respondent took the Tribunal to page 244 which was the NIHR Integrated Academic Training document dated March 2018, this was the only real documentary evidence which was produced by the TCC. At page 246 there was a reference to eligibility requirements, but it is not known if the NIHR produced them. Reference was made to page 315 where the Claimant emailed the NIHR and Ms Brown of the TCC in Leeds replied. There was no suggestion that the NIHR CRN South London had anything to do with this. Although the Claimant indicated in his statement that it was his understanding that the Local CRN was responsible for funding, that is not the case. Whether this body handles a pot of money, is beside the point. It must be the decision maker.

[17]Mr Lyddiard explained in his statement that the Third Respondent had “no responsibility for parts of the NIHR that support national research training schemes, including their administration and funding, of which the Claimant complains” (paragraph 10). In further oral submissions it was said on behalf of the Third Respondent that the documentary evidence in this case will not improve, the only witness they will call is Mr Lyddiard who is Chief Operating Officer and he will say they had nothing to do with it. The CRN and Guy’s and St Thomas’ NHS Foundation Trust were not responsible for setting or applying the criteria. The parties had got into a Mexican standoff with all parties talking about the NIHR generic entity but not talking about the Local Commissioning CRN.

[18]The Third Respondent stated the Claimant’s assumptions about local funding contained in his statement (paragraphs 51-55) are nothing to the point. Whether or not the Third Respondent is involved in funding parts of the ACL locally, the alleged discriminator must be the party who established the criterion or the party who acted on it, which is not in either case, the Third Respondent.

[19]The Third Respondent submitted that the Claimant’s claims have no reasonable prospect of success and ought to be struck out. They stated that there was no basis on which the Tribunal could find, after what is likely to be a lengthy and multi-handed trial, that the Third Respondent had any involvement in establishing the criterion. It was stated that if there was liability, it is not by the Third Respondent or anyone associated with the CRN South London or anyone within Guy’s and St Thomas’. It was suggested that it maybe someone in the TCC or some other body. It was stated that the claims against the Third Respondent were fundamentally misconceived.

[20]The Third Respondent responded to issues in the Claimant’s written skeleton saying that today they have been trying to prove a negative, but they have produced everything they have to show what the CRN does. The Claimant states that it “falls within the NIHR” but they fail to show where. It is not the duty of the Third Respondent to say where liability should fall if it does not fall with them. It is not for the Third Respondent to identify who is responsible and they do not know. There is no duty on them to investigate this matter on behalf of the Claimant. There is no good reason for the Third Respondent to remain on the record. The claims against them should be struck out.

[21]There has been a wholly new point to join the Chief Operating Officer of the Institute. The Third Respondent referred to paragraph 7 of Mr Lyddiard’s statement confirming that there are 15 CRN’s and each local CRN is hosted by a different legal entity and have a different remit, none are associated with the other. The Third Respondent is one of those 15. I cannot say what Mr Lyddiard would say if he was joined as an individual Respondent and you cannot do it as a matter of law. It is also unclear what the Claimant is asking you to do. The CRN has personality via Guy’s and St Thomas’ Hospital, we could move on, but we didn’t. If you do knock out the CRN, you do not have an application to join others and you do not have the correct legal body. If you are not with me on this point, Mr Lyddiard would have to get independent representation. I say the Claimant has abandoned the entire case.

[22]The Third Respondent added that they are not a golf club. To make good the point on unincorporated associations one looks at the case of Conservative and Unionist Central Office v Burrell WLR [1982] 522 a Court of Appeal case where it was confirmed that to be an unincorporated association there must be two or more persons, bound together for a common purpose, not being a business, by mutual undertakings, each having mutual duties and obligations. The association must have rules and the bonds between the members must be contractual. From this case you can see that this is nothing like what we are talking about here. Here there is a common purpose but there is no business, the NHS operates in a way analogous to a business environment. There is no mutuality between members, this wouldn’t arise in an employment relationship. We do not have a contractual relationship between members but a vertical hierarchy. I reject the imaginative submission that it is an unincorporated association. I say they have a legal entity via Guy’s and St Thomas’.

[23]The Claimant’s assertion that the Third Respondent should remain because they have not told the Claimant who to pursue, is not a good basis for maintaining a claim against a party that been pursued in error. The Third Respondent does not know whether a different part of the NIHR established the criterion and if so what is the legal personality of that relevant department. Although the Claimant’s error in identifying the Third Respondent is understandable, they stated the Claimant’s apparent intransigence is less so.

[24]The Third Respondent then went on to respond to the Fourth Respondent’s submissions, saying that the point about employment services under Section 111(7) deprives him of an argument against the Third and Fourth Respondent. There is no evidence of them inducing or causing and the Claimant accepted this.

[25]Under the Equality Act the Fourth Respondent (and the Claimant accepts) that there is nothing in part 5 that is relied upon for the Third Respondent. They are not said to be the Claimant’s employer or providing employee services, or an employment body and it is not said we caused or induced. That is the entirety of the Claimant’s case. Submissions by the Fourth Respondent

[26]The Fourth Respondent produced extremely comprehensive written submissions which will not be replicated in this decision but will be referred to where appropriate. The additional oral submissions were as follows:

[27]They repeated the difficulty of proving a negative, they stated that the Tribunal has one question to answer, “does the Claimant’s claim have a reasonable prospect of success?”. In order to do this the Claimant must show that the Fourth Respondent applied a PCP, we all know that the parameters are high, but the Tribunal must grasp the nettle. It does not need to be shown who set or applied the criteria all we need to show that it was not us. Looking at the evidence today at who applies the criteria, education and training, it is the GMC under the Medical Act 1983 and under secondary legislation in 2010 where a Post Graduate Board was abolished and the responsibility for education passed to the GMC. The GMC delegates the administration but not the responsibility (see the Fourth Respondent’s submissions at paragraphs 4- 20). The Fourth Respondent’s statutory function is to set standards for education training and assessment, it does not set or have influence over setting the criteria for the ACL.

[28]As an aside the MRCPsych curriculum has to be approved by the GMC, they run the qualification and they have ultimate responsibility. The Fourth Respondent stated that for the ACL programme, there were alternatives and the fastest route was for a college to advertise and in this case it was the First Respondent. Interviews were carried out by the First Respondent and perhaps by the body who was funding it but there was no involvement by the Fourth Respondent.

[29]There is a 700 page bundle but the Second Respondent put in all the disclosure. There is very little in the bundle that is relevant to your decision and the relevant documents have been referred to in the Fourth Respondent’s submissions. The Claimant’s representative states that you do not have the facts before you, it is not known who set or applied the criteria. They are facts but not disputed facts of “he said she said”. There are conclusions that can be drawn from this but they are not the right facts. The right facts are “did the Fourth Respondent set the criteria?” and “did the Fourth Respondent apply the criteria?” anything beyond that does not apply today.

[30]For the setting you need to go to the GMC. For the application of the criteria go to the Second Respondent which is where the rejection came from, not from the Fourth Respondent. The Fourth Respondent did not know that the Claimant applied for this role until after they heard about the rejection.

[31]The Claimant’s representative also said the Respondents are not all speaking with one voice. However, the Second Respondent has not applied for a strike out but the Third and Fourth Respondent have.

[32]The Fourth Respondent went on to deal with the last argument put forward by the Claimant which they described as the Micawber argument, that ‘something may turn up’. It was suggested that the Claimant could get a third party disclosure order against the GMC or include them as a party. However, they cannot pursue a claim against a party on the grounds that it “could be us”.

[33]You have to take the Claimant’s evidence at its highest and it consists entirely of two emails and a footnote. The emails are at pages 275 Mr Yuan of the Second Respondent said that the Royal College played a role in setting the criteria, but we say that that is wrong and his own organization at a higher level confirmed that it was wrong (as did other Third parties). At page 387 an email dated the 16 August 2018 from Vivienne Curtis of the Second Respondent said the ACL standard requirement was set by the GMC. The only other email referred to by the Claimant is at page 329 by Professor Everall, he says the requirement is a College requirement, it is not quite clear what he means about requirement but he also wrote on the 5 September (page 401) which the Claimant referred to in his skeleton where he stated “as we have set out above, Kings does not set the eligibility criteria. Therefore Kings cannot comment any further on these criteria and is unable to comment at all on the rationale behind them”. This is his considered view. In the Claimant’s skeleton they say they place a lot of weight on this however this letter places the liability on the Second and Third Respondent not on the Fourth. The reference to the email from Dr Stokes referring to alternative routes but that is not the ACL. This was a helpful letter explaining the Fourth Respondent’s position and offering to contact Ms Curtis (who held positions in the First and Second Respondents at the time) and Professor Young about alternative routes.

[34]There was an email from Ms Ellis from the GMC who said it was the Second Respondent. On page 405 there was an email from Ms. Bone of the GMC to the Claimant dated the 22 September 2018 saying it was not the GMC who had jurisdiction over the eligibility criteria, it was the Second Respondent or the NIHR. Again on page 408 of the bundle it was confirmed by Mr Barrowdale the Equality and Diversity Manager of the GMC that the eligibility criteria was not set by the GMC but stated that “eligibility criteria reference HEE, NIHR and the NHS” (dated the 11 October 2018). In all of the emails from the GMC none state that the Fourth Respondent has any role in setting the eligibility criteria.

[35]The Fourth Respondent went on to state that there was no reference in the Claimant’s ET1 to show that he believed it was the Fourth Respondent. They state that to include them is an abuse of process. They have been included as a party to try and find out if they are involved.

[36]The Fourth Respondent referred to a number of other documents at page 177 this is a position paper that introduces the notion of equivalence. The footnote 5 applies to paragraph 11(d) and refers to entering training at ST3 or above, it refers to doctors coming from Europe, it does not refer to Psychiatry, General Practice is a larger component of this. The Fourth Respondent has never looked at equivalence. The footnote refers to European equivalence, in any event we say it does not matter because firstly it says on page 180 FAQ where the definition of equivalent is referred to, this says the wording of ‘equivalent’ needs to be removed from the curriculum and any exam within a curriculum must be approved by the GMC. Secondly the person specification on page 422 came from the Second Respondent and is an eligibility criteria for ST4 level, the level which the Claimant was at, we have a copy of the 2018 version, which is not materially different. This document states that “letters of equivalence to MRCPsych provided by the Royal College of Psychiatrists are no longer a valid alternative to holding the MRCPsych examination and will not be accepted as equivalent to MRCPsych”. ACL applicants had to meet the criteria, in this person specification three alternatives are referred to and one which will not (the three that would be accepted were MBBS or equivalent, MRCPsych or EEA eligibility). Although the Claimant was upset by reference to the EEA eligibility this arose out of an EU Directive. This confirmed that letters of equivalence were no longer accepted. It was stated that equivalence was a red herring.

[37]The Fourth Respondent then went on to refer to the law. They stated that for Section 13 this would be difficult because the Fourth Respondent had no knowledge of the application and the Claimant has chosen the wrong comparator (he suggested that it was the person appointed). It was noted that the person appointed held a MRCPsych. The correct comparator would be a person of a different nationality who did not meet the eligibility criteria but who was accepted for a post and was from the UK. It should be noted that the MRCPsych is taken by UK Nationals and by Non-UK nationals.

[38]Under section 53 in relation to qualifying bodies, it is not suggested by the Claimant that the Fourth Respondent is a qualifying body (page 719 paragraph 29 of the Claimant’s replies to further particulars). On that basis the claim should be struck out.

[39]Under section 55 (see page 716), it was not alleged that the Fourth Respondent is an employment service provider. Under Section 111 only applies to part 3 of the Equality Act it does not apply to parts 1 and II. The Fourth Respondent cannot be found to have discriminated against the Claimant under this section.

[40]That leaves section 19. A PCP has been applied but where does the Fourth Respondent fit? The criteria are the ones that were in the MRCPsych examinations. The Fourth Respondent has played no part in setting the criteria, it was the GMC. We did not apply the criteria, there is nothing to show that this is anything to do with the Fourth Respondent. There is no evidence to show that the Fourth Respondent has anything to do with the ACL, there has been no disclosure that links us to the ACL. There is no PCP.

[41]The Fourth Respondent asked why they were here. The Claimant stated that no one has accepted responsibility but there is no duty on any third party to explain who is responsible. The Fourth Respondent have tried to be helpful but the case is pursued on unsustainable grounds.

[42]The Fourth Respondent referred to the strike out rule 37, they state that the grounds should be reasonable and not fanciful. The Tribunal should grasp the nettle because there is no case to answer. The PCP was set by the GMC and/or by those who applied it. There was no evidence to link it to the Fourth Respondent apart from two contradictory emails and half a footnote.

[43]The case does not stand up in law and we say there is no reasonable prospect of success. This is not a case of contested evidence. There has been disclosure and the Claimant has chosen to ignore the GMC. The Claimant cannot argue that the case should go to trial on the basis that something may turn up. The case should be struck out.

[44]The Fourth Respondent agreed with the Third Respondent that the Claimant appeared to abandon his claims. The document at page 433 was referred to (the letter from the GMC) and particularly paragraph 8 which stated that the “NIHR criteria require…” which was another example that was produced by a senior Policy Lawyer that adds to the Fourth Respondent’s case.

[45]The Claimant referred to two emails, the one at page 272 from Dr Stokes providing advice and this confirmed that he needs to apply for ACF or CT training in psychiatry. The Claimant’s representative has sought to imply that the College was involved, this was talking about allowances and followed on from the emails at the bottom of the string again from Dr Stokes on page 273, this was about allowances.

[46]The Fourth Respondent stated that the reference to page 52 (MDRS) in paragraph 21 of the ET3 of the Second Respondent; this is a subcommittee of the Second Respondent, not of the Fourth Respondent. Also, at paragraph 19 on page 52 it is confirmed by the Second Respondent that it is administered by the First to Third Respondents. It is accepted that there was an email at some point saying something different, but this is the difference, Dr Lovatt was happy to discuss allowances.

[47]The Fourth Respondent commented that the reference to page 268 from the Dean of the Fourth Respondent makes it clear that the criteria are not within their remit. The reference to Mr. Yuen showed that the overwhelming number of people refer to the Second and Third Respondent. The Claimant mentioned the bye-laws at page 350 and this related to 4(d) but he did not read out that the bye laws are as set from time to time by the Department of Health (not by the Fourth Respondent). On page 351 it stated that the College plays a role in the post graduate qualification but there is a difference between that and the ACL. The ACL is different, and it is a college administered scheme operated by Kings College, not the Fourth Respondent. The Fourth Respondent had no role to play with the ACL and did not set or apply the criteria.

[48]The Claimant’s counsel referred to their frustration which we understand. The Claimant put in an application that was rejected however the application was rejected by the Second Respondent not the Fourth. The Claimant’s response to the Third Respondent’s application.

[49]The Claimant stated that this case was not suitable for strike out due to the highly fact sensitive nature of the case. The Claimant set out the case law in relation to strike out at paragraphs 10-18 indicating that this case should not be struck out as essential facts remain in dispute and a preliminary hearing does not determine the facts. If there are core issues of fact that turn on oral evidence, they should not be determined without an oral hearing.

[50]The Claimant claims that the Third Respondent is the proper Respondent. The NIHR are responsible for the funding of the ACL at a local level (at Kings College) and they are responsible for “covering all study delivery in all therapy areas” within the areas covered in the Claimant’s ACL. It was confirmed by Dr Kate Lovett, Dean of the Fourth Respondent that “the scheme is administered by NIHR in collaboration with HEE who set the entry requirements” (for ACL) (page 268 of the bundle). She again stated this in an email dated the 6 July 2018 (page 312) but confirmed that it is HEE “who set the eligibility criteria” and the NIHR “run the scheme”. Dr Stokes of the Institute of Psychiatry Psychology and Neurology (IoPPN) also said in his email dated the 30 July 2018 (page 331) that the criteria were set by HEE and NIHR. The Claimant said that the weight of this evidence needed to be determined at trial.

[51]It was also confirmed by the GMC in a letter written by Ms O’Toole that the Third Respondent was responsible for setting the criteria (pages 431-4). The Claimant said they would call Ms O’Toole to the hearing to show that the Third Respondent was responsible for operating the Claimant’s appointment. The Claimant submitted that the Third Respondent was responsible for the operation of the NIHR Network and were going to manage the 2018 ACL (including the management, administration and recruitment for ACL posts).

[52]Although the Third Respondent stated that they are not a legal entity, it was a body that was capable of entering into funding agreements and distributes funding “through or with the Third Respondent” (paragraph 49 of the Claimant’s written submissions). The Third Respondent has a web site and as a National Body claims on the web site that it is the “largest funder of health and care research and provide the people, facilities and technology that enables research to thrive”. The Claimant referred to the email in the bundle at page 270 from Dr Stokes (responsible for the Claimant’s ACL training) he is the CRN Lead for Mental Health and does not fall within that organization as a body.

[53]The Tribunal was taken to page 624 which was the Host Organisation contract updated from the 1 October 2018 showing that the National Organisation has a Chief Executive and the organization therefore has a National and local presence. The emphasis on the word ‘Host’ shows that it is a separate entity and can operate across NHS Trusts. The document at page 414 shows that within the local CRN, Mr Shennen holds a position of Clinical Director and is an employee of Kings. The Tribunal has not heard from Mr Shennen. The Tribunal cannot be sure at this stage who others from the Third Respondent have played a role and he talked of a ‘conflict’. The Claimant’s primary position is that the Third Respondent is an unincorporated association for funding the ACL and it played a role in establishing the criteria for appointing to the role.

[54]The Claimant submitted that the NIHR (South London) is the proper Third Respondent until “such time as either it provides evidence, as it has stated, that another part of the NIHR is responsible for the criteria and or it explains why given the statements by the GMC, they are wrong” (paragraph 51 of the Claimant’s written submissions). It was further stated that if the Third Respondent can provide evidence that another part of the NIHR was responsible for the management, administration and recruitment for the ACL posts at Kings, then the Claimant will co-operate with their substitution.

[55]The Claimant took the Tribunal through paragraphs of the First Respondent’s ET3 (no longer a party to these proceedings), at page 30 paragraph 4 they state that the Third Respondent (NIHR) funds health and care research, at paragraph 10 they say that the ACL is run and funded by the Third Respondent and at paragraph 27 (page 34) Dr Stokes maintained that the criteria was set by the Second and Third Respondent. The Claimant also took the Tribunal to paragraph 34 of the First Respondent’s ET3 where it stated that Professor Everall, Dean of the IoPPN and the Maudsley Training Programme that runs the 2018 ACL in General Adult Psychiatry (of the First Respondent), replied to the Claimant on behalf of Dr Stokes asking the Second and Third Respondent’s to review the criteria.

[56]The Claimant then took the Tribunal to the ET3 submitted by the Second Respondent (page 52) and stated that if the Tribunal strike out the claims against the Third and Fourth Respondent, the Second Respondent will state that they did not set the criteria. The Second Respondent submits that the ACL scheme is administered by the First to the Third Respondent inclusively.

[57]The Third Respondent’s ET3 (page 65 paragraph 6-7) states that the CRN (South London) has no involvement and they are not aware of which, if any part of the NIHR would have responsibility for setting the criteria for entrance to, and funding of the ACL training. The Third Respondent says that other parts of the organization administered the scheme, but they have failed to establish if someone else is responsible. The Claimant states that the local body dealt with the Claimant’s application but accepted that it could be both the National and Local body.

[58]The Claimant took the Tribunal to page 315-6 which was an email from Emma Brown of the NIHR who replied to the Claimant on behalf of the Training Coordinating Centre “TCC”, there was reference to a “team” who looked after the NIHR. The document at pages 244 was the NIHR Integrated and Academic Training document issued by the TCC (published by the NIHR). The Tribunal was then taken to page 246 which referred to the eligibility criteria, this submits the Claimant places them “front and centre” of the recruitment to the ACL role.

[59]The Claimant took the Tribunal to pages 395 and 405 which were emails from Megan Bone of the GMC stating that they did not have jurisdiction over eligibility criteria. There was also a detailed letter from the GMC in the bundle at pages 431-4 dated the 6 March 2019 confirming they had no role in setting the criteria. At paragraph 8 of this letter at page 433, they stated that “in order to be eligible for entry onto an ACL, the NIHR criteria require that an applicant must also meet the entry requirements for clinical training at the appropriate level. In this case it appears that the requirements for clinical training in question are those for entry into ST4 General Adult Psychiatry, which is higher level training..”

[60]The Claimant took the Tribunal to a PowerPoint presentation produced by Mr Lyddiard for the Third Respondent. The Claimant stated that this presentation showed at page 681 where they fitted in showing the NIHR infrastructure and programmes including the ACL programme which was included in the training and education section.

[61]The Claimant’s final submissions were that this was a difficult case. In the full hearing the Claimant suggested that the evidence would improve as they will produce witnesses from the GMC via a witness order. The Claimant stated that they would like a single person to explain why they did what they did. In summary it was stated that the Third Respondent appears to be involved in setting the criteria but accepted that it was not clear. The Claimant’s response to the Fourth Respondent’s application is follows:

[62]It is submitted that the Fourth Respondent was responsible for determining the equivalence of non-UK training and this was confirmed by the GMC (pages 175-182). The Claimant stated that the Fourth Respondent has to determine the equivalence of non-UK exams for the purpose of granting a Certificate of Eligibility for Specialist Registration (CESR). In oral submissions the Claimant took the Tribunal to the First Respondent’s ET3 at page 33 (paragraph 21) where they asked the Fourth Respondent to revisit the Claimant’s application. In the Second Respondent’s ET3 at page 52 (paragraph 21) they bring in the Fourth Respondent. Now today the Fourth Respondent accepts they have a statutory function in education and training.

[63]The Second Respondent should not have set an eligibility criterion based on the nationality of the doctor, rather than in the quality of his or her core training and examinations. The Claimant is not clear whether the criterion was set by the Second Respondent or another, but it has been applied by the Fourth Respondent.

[64]The Claimant referred to the letter written by Dr Lovatt of the Fourth Respondent dated the 30 July 2018 where she “involved” them (page 268).

[65]The doctor in charge of the ACL program at the First Respondent confirmed that the Claimant was sufficiently trained to undertake higher training in General Adult Psychiatry. Both Ivan Yuen an Academic Training Officer at the Second Respondent (see page 301 of the bundle) and Professor Everall Dean of the UK Training programme for Psychiatrists confirmed that the Fourth Respondent set the eligibility criteria (the Tribunal were taken to pages 275 and 329). The Claimant took the Tribunal to the Bye-Laws of the Fourth Respondent and to page 350 which set out the criteria for membership of an affiliate. At all material times the Claimant was accepted on to the CDF but not on to the ACL; even though they do exactly the same thing.

[66]The Claimant also referred to the GMC rules at page 180 and the definition of the words “or equivalent” and it is stated that it is for each college to consider what is equivalent or similar.

[67]Again, the Claimant stated that they intend to pursue the Fourth Respondent until such time as the evidence is determined of if they identify the body responsible for the management, administration and recruitment for the ACL posts at Kings. If that is not the Fourth Respondent, then the Claimant will co-operate to substitute that body.

[68]The Claimant added in oral submissions that we do not know all the facts. It was agreed that the criteria was required and applied. Unless this can be determined today it should go to trial to determine this. A substantive trial would set this out and you cannot take one piece of paper over another. There is a clear conflict in the evidence. In terms of bringing in a charity, there are many charities that appear before Tribunals. Although the Fourth Respondent say they have no notion of this matter, the documents show that they do. You have been taken to page 177(d) where the words “Doctors entering UK training at ST3 (or above) from approved European training with a European exam considered equivalent/similar to the UK exam” and the footnote confirmed that this was “determined by the College”, my client had been training at Kings and had a doctorate therefore he had been “trained in Europe” the equivalence is a matter to be determined by the College. The Claimant takes the point about whether he has equivalent training. In response to the Fourth Respondent’s submission that the issue of equivalence was a red herring, the Claimant stated that the Fourth Respondent did consider equivalence.

[69]In terms of direct discrimination, until the Claimant knows who took the decision, we are in difficulty. It is the same with indirect. In terms of evidence they do point to the Third or Fourth Respondent. The Law Equality Act 2010 Direct discrimination Section 13 (1)A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Section 19 Indirect discrimination (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim. 53 Qualifications bodies (1) A qualifications body (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding upon whom to confer a relevant qualification; (b) as to the terms on which it is prepared to confer a relevant qualification on B; (c) by not conferring a relevant qualification on B. (2) A qualifications body (A) must not discriminate against a person (B) upon whom A has conferred a relevant qualification— (a) by withdrawing the qualification from B; (b) by varying the terms on which B holds the qualification; (c) by subjecting B to any other detriment. 55 Employment service-providers (1) A person (an “employment service-provider”) concerned with the provision of an employment service must not discriminate against a person— (a) in the arrangements the service-provider makes for selecting persons to whom to provide, or to whom to offer to provide, the service; (b) as to the terms on which the service-provider offers to provide the service to the person; (c) by not offering to provide the service to the person. (2) An employment service-provider (A) must not, in relation to the provision of an employment service, discriminate against a person (B)— (a) as to the terms on which A provides the service to B; (b) by not providing the service to B; (c) by terminating the provision of the service to B; (d) by subjecting B to any other detriment. 111 Instructing, causing or inducing contraventions (1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention). (2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention. (3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention. (4) For the purposes of subsection (3), inducement may be direct or indirect. (5) Proceedings for a contravention of this section may be brought— (a) by B, if B is subjected to a detriment as a result of A's conduct; (b) by C, if C is subjected to a detriment as a result of A's conduct; (c) by the Commission. (6) For the purposes of subsection (5), it does not matter whether— (a) the basic contravention occurs; (b) any other proceedings are, or may be, brought in relation to A's conduct. (7) This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B. (8) A reference in this section to causing or inducing a person to do something includes a reference to attempting to cause or induce the person to do it. (9) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating— (a) in a case within subsection (5)(a), to the Part of this Act which, because of the relationship between A and B, A is in a position to contravene in relation to B; (b) in a case within subsection (5)(b), to the Part of this Act which, because of the relationship between B and C, B is in a position to contravene in relation to C. Employment Tribunals (Constitution and Rules of Procedure) Regulations Rule 37 Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the Claimant or the Respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued;

(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.

The Law

[70]The Tribunal has been referred to the cases of Abertawe Bro Morgannwg University Health Board v Ferguson

[2013] ICR 1108

which stated that a strike out is not appropriate in highly fact sensitive cases. The Claimant further states that it is not appropriate to strike out as the Respondents do not ‘speak in a single voice’. The Tribunal has been reminded that only in the most obvious and exceptional cases should a discrimination case be struck out. The test set out in Balls v Downham Market High School and College

[2011] IRLR 217

was also referred to and the Tribunal was reminded that the test is whether the claim has no reasonable prospect of success not whether it is likely to fail, which is a high test. The Claimant particularly emphasised that there may be other material that is relevant to the issue and they intend to seek orders from others such as the GMC, who are not parties to this case. The Third Respondent has confirmed that their evidence will not change and they would only call the witness who attended the preliminary hearing.

[71]This was a difficult case to decide due to the complexity of the facts and the structure of the academic bodies involved in training and accreditation. As the Third Respondent stated there was a level of opacity about the evidence but there was unlikely to be any improvement in the evidence against the Third Respondent as presently identified.

[72]Having received detailed written and oral submissions from both Respondents and having considered these and the documentary evidence from the parties, it was noted that there was little disagreement on the basic facts of the case and they are outlined above. It was not a case where there was a dispute as to what happened. Everyone agreed as to the basic facts and the only disagreement is which Respondent was responsible for setting the criteria and who then applied it.

[73]It was unsurprising that both Respondents seeking the strike out did not speak with one voice because the role they played in this scenario was different. The facts have evolved by the Claimant asking various people within each institution (including all four Respondents and the GMC) of their view as to who was responsible for setting the criteria and it was unsurprising that different responses were forthcoming, depending on the seniority and the knowledge of the person asked. What was clear however was that the Third and Fourth Respondent had little direct involvement in setting the criteria and none in applying the criteria to the Claimant.

[74]The Claimant referred to the case of Mecharov v Citibank [2016] 1211EAT which reminds the Tribunal that where one is considering a strike out, the Claimant’s case should be taken at its highest. It is only where the case is inexplicably inconsistent with undisputed documents that it should be appropriate for a strike out. But if there are “core issues of fact that turn on oral evidence, they should be decided at an oral hearing”.

[75]So what is the Claimant’s case against the Third Respondent at its highest? The Claimant submits that the identity of the Third Respondent is the NIHR CRN (South London) however the Third Respondent states that this is not the proper Respondent because it has no legal identity. They state that the appropriate legal identity is that of the host hospital (Guys and St Thomas’ NHS Trust). The Claimant has not made an application to change the name of the Third Respondent.

[76]The Tribunal saw the Partner Contract showing that the contracting status is via the host hospital, not via the CRN. We have also seen a statement from Mr Lyddiard who gave evidence to this effect. The Claimant submitted in oral submissions that the CRN is an unincorporated association, however having considered the ruling in the case of Conservative and Unionist Central Office v Burrell [1981] EWCA Civ 2 there was no evidence to suggest that this was the case. I referred to the words of Lawton LJ where an unincorporated association was “two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rest and upon what terms and which can be joined or left at will”. It was also confirmed that the bonds of union between the members have to be contractual. Although those working in the CRN had a common purpose there was no evidence that the bonds between those working for the CRN were contractual. There was no evidence of mutuality between members as all those working at the Local CRN were employees of Guys and St Thomas’ and were working in a vertical management structure. It for this reason that the submission that the Third Respondent is an unincorporated association is not supported on the facts.

[77]It is concluded therefore that as presently identified, the Third Respondent has no distinct legal identity. There being no applications to change the name of the Third Respondent to the host hospital, the claim against it must be struck out.

[78]Even if the Tribunal is wrong about the conclusion reached about the Third Respondent’s lack of legal personality, the Tribunal have gone on to consider whether the Claimant’s case against the Third Respondent has no reasonable prospect of success.

[79]The Claimant stated that the Third Respondent “ran the scheme” or were “managing the ACL” or that they “administered the scheme” with other Respondents but both parties accepted that their role was not clear.

[80]The Third Respondent accepted that there was some opacity about the evidence but the claim as presently before the Tribunal showed that they have no direct responsibility for the parts of the NIHR that supported national training and research; this was the evidence provided by Mr Lyddiard. The Third Respondent has also stated that the evidence against them will not improve, they will only produce Mr Lyddiard and the Tribunal has seen all the relevant documents. The Third Respondent’s role and status is entirely distinct from other parts of the NIHR, they are limited to the functions funded and carried out via the host Hospital. The Guidance Note that was seen at pages 244 and 432 was prepared not by the CRN, but by the TCC, part of the national body. The Third Respondent stated that they were not responsible for establishing or applying the criteria and they played no part in the production of this document.

[81]The Claimant’s evidence at its highest is that Dr. Lovatt of the Fourth Respondent had stated in a letter that the ACL scheme was ‘administered’ by the NIHR (in collaboration with the Second Respondent) but it was not established by the Claimant whether this was a reference to the Third Respondent (the body alleged by the Claimant to be an unincorporated association) or some other part of the NIHR, such as the TCC. The Claimant suggested in his ET1 that the Third Respondent ‘administered’ the ACL, however the administration of a course of study is not the same as the establishment of a criteria to identify those eligible to enter upon that course of study.

[82]There was no evidence that the local CRN established or applied the criteria to the Claimant. At its highest the evidence showed that some part of the NIHR was said to ‘run’ the scheme. Although there was reference in the correspondence to the NIHR being responsible for ‘setting’ criteria, this was only the view given by the GMC and it has not been suggested that this was a reference to the local CRN. The Claimant’s case at its highest was that the Third Respondent as presently identified played some role in establishing the criteria. However, there was no evidence to suggest that the Local CRN played any role in setting the criteria or in applying the criteria.

[83]The Claimant asked that the Third Respondent should remain a party to these proceedings until they can point to which part of the NIHR is responsible or to say why the GMC was wrong in their opinion. This submission shows the present weakness of the Claimant’s claim against the Third Respondent. The only evidence against the Third Respondent is referred to above, where it was accepted that some part of the NIHR had some input, but that input could not be imputed to the local CRN (and nowhere is it suggested that the local CRN had input into setting the criteria). It may be that the proper Respondent is the NIHR TCC or some other body within the NIHR but there was no evidence to suggest that it is the Third Respondent.

[84]The Tribunal considered whether the claims pursued by the Claimant against the Third Respondent have a reasonable prospect of success, firstly in relation to the claims under Section 13 and 19 of the Equality Act. There was no evidence that the Third Respondent directly discriminated against the Claimant nor that they applied a PCP. It was the Second Respondent that applied the criteria and rejected the Claimant for the ACL. The Claimant has failed to provide any evidence that suggests that the Third Respondent directly or indirectly discriminated against the Claimant in respect of his application. In the absence of any evidence to support these claims it is concluded that they have no reasonable prospect of success and are struck out.

[85]There was no suggestion that the Third Respondent has a case to answer in respect of a claim under section 53 or 55 of the Equality Act. The Local CRN is not a qualifying body and there was no evidence to suggest that they were an employment service provider. It is concluded on all the evidence therefore that these claims against the Third Respondent have no reasonable prospect of success and are therefore struck out.

[86]Turning to the Claimant’s claim against the Fourth Respondent, the evidence in support of this claim consists of two emails and they have been referred to above. The Claimant stated that the Fourth Respondent has ‘applied the criteria’ and they submit that the College was responsible for determining the issue of equivalence. The Claimant states that the evidence points to either the Third or the Fourth Respondent.

[87]The Fourth Respondent stated that they had no involvement in either setting the criteria or applying it and that the issue in relation to determining equivalence has no relevance as it only applies to European examinations. The Fourth Respondent claimed that the responsibility lies with the GMC who applied the criteria. The Fourth Respondent stated the GMC may have delegated the administration of this task but not the responsibility. They state that the body who applied the criteria was the Second Respondent. The Fourth Respondent was not aware that the Claimant applied for the role until after they learned that he was rejected.

[88]The Fourth Respondent referred the Tribunal to a number of cases on the definition of reasonable prospect of success, firstly the case of Easyair (t/a Openair) v Opal Telecom Ltd

[2009] EWHC 339

where it was stated that the Court must consider whether the Claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect, requiring that a claim that carries some degree of conviction and is more than merely arguable. The Court must also take into account the evidence actually placed before it but also evidence “that can reasonably be expected to be available at trial”. If the Court is then satisfied that it has before it all the evidence for the proper determination of the question the Court should “grasp the nettle”. The Fourth Respondent also referred to the case of Ahir v British Airways PLC

[2017] EWCA Civ 1392

where Underhill LJ said that Tribunals should not be deterred from striking out discrimination claims if they are satisfied that there is no reasonable prospect of the facts necessary to liability being established.

[89]The Tribunal had in mind that the test for strike out is high and if it is a highly fact sensitive case a strike out would not be appropriate. This does not seem to be a fact sensitive case. All the evidence relied on by the Claimant was supported by documentary evidence and the weight of the evidence against the Fourth Respondent was limited to a small number of documents, none of which established an arguable case. In addition, the involvement of the Fourth Respondent was limited to events that occurred after the act of discrimination; they became involved in an attempt to assist the Claimant. There was no evidence that any other documents relevant to the issues in the case have yet to be disclosed that are in existence.

[90]The Tribunal looked at each head of claim in turn to see whether they had a reasonable prospect of success. Turning first to the claim under section 13, there was no evidence to suggest that the Fourth Respondent played any part in the Claimant’s application and selection process. There was no evidence that they had treated the Claimant less favourably than an actual or hypothetical comparator. The Tribunal accepted that the hypothetical comparator would have to be a person of a different nationality to the Claimant who also did not meet the criteria for acceptance on to the ACL programme but who was accepted. There was no evidence advanced to show that the Claimant would have been treated differently to the comparator by the Fourth Respondent. There was no evidence to suggest that the Fourth Respondent treated the Claimant less favourably. This head of claim has no reasonable prospect of success and is struck out.

[91]In respect of the Claimant’s claim against the Fourth Respondent under section 19, there was no evidence that they had applied a PCP to the Claimant. There was no evidence that they applied a PCP at any time for admittance on to the ACL scheme. The Fourth Respondent has clearly shown in their correspondence provided by Dr Lovatt that they had no responsibility over the clinical requirements relating to eligibility for the ACL, the entry requirements being set by the Second Respondent. The evidence showed that the Fourth Respondent was not responsible for the administration of the scheme or the acceptance or rejection of candidates wishing to pursue the ACL route.

[92]The extent of the Fourth Respondent’s role in this case was limited to exchanging a number of emails after the act complained of. It was seen that Dr Lovatt was attempting to assist the Claimant and she became involved purely out of concern for his predicament. There was nothing to suggest from the written communications that the Fourth Respondent played any role in the setting of the criteria or applying the criteria to the Claimant which led to his rejection for the ACL. It is concluded on all the evidence that the claim under section 19 has no reasonable prospect of success and is struck out.

[93]Turning to the claim under Section 53, there was no consistent evidence before the Tribunal to suggest that the Fourth Respondent was a qualification body (which was accepted by the Claimant in answers to further particulars). In the light of what appeared to be a concession by the Claimant, this claim has no reasonable prospect of success and is struck out.

[94]There was no evidence before the Tribunal to suggest that the Fourth Respondent was an employment service provider. As the Claimant has accepted in replies to further particulars that the Fourth Respondent is not alleged to be an employment service provider, it is concluded that this claim has no reasonable prospect of success and is struck out. As the claims under Section 53 and 55 have no reasonable prospect of success the claim under Section 111 must also be struck out for the same reason.

[95]This matter will now be listed for a one hour telephone preliminary hearing to consider listing the matter for a full merits hearing. The parties are asked to agree a list of issues and the length of hearing that will be required to deal with this matter (if possible, to deal with liability and remedy). The date for the preliminary hearing will be sent to the parties un due course.

[1]The Claimant’s application for a postponement of the hearing is granted.

[2]The claim is listed:a. For a pre-trial review / open preliminary hearing on 18 December 2023 at 10am, with a time estimate of 3 hours. This will be before Employment Judge Rahman sitting alone.

b. For a full merits hearing on 15, 16, 17, 18, 19 and 22 January 2024 with a time estimate of 6 days at London South. This will be before Employment Judge Rahman, Tribunal Member Boyce and Tribunal Member Harrington-Roberts.

[3]The application by the Claimant’s solicitor for permission to come off the record is granted. Employment Judge RAHMAN 20 March 2023 Case Number: 2303996 / 2018 Useful information

[1]All judgments and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents.

[2]There is information about Employment Tribunal procedures, including case management and preparation, compensation for injury to feelings, and pension loss, here: https://www.judiciary.uk/publications/employment-rules-and-legislation-practicedirections/

[3]The Employment Tribunals Rules of Procedure are here: https://www.gov.uk/government/publications/employment-tribunal-procedurerules

[4]You can appeal to the Employment Appeal Tribunal if you think a legal mistake was made in an Employment Tribunal decision. There is more information here: https://www.gov.uk/appeal-employment-appeal-tribunal