British Medical Association v Chaudhary [2007] EWCA Civ 788

[2007] EWCA Civ 788Case No A2/2004/0926
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MRS JUSTICE COX PRESIDING
EAT/135/01 & EAT/0804/02
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/07/2007
Before
LORD JUSTICE MUMMERYLADY JUSTICE SMITHLORD JUSTICE MAURICE KAY
Between
The British Medical AssociationAppellantMr Rajendra ChaudharyRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr John Cavanagh QC (instructed by Director of Legal Services British Medical Association) for AppellantMr John Hendy QC, Ms Karon Monaghan and Mr Ghazan Mahmood (instructed by Linder Myers) for RespondentHearing Hearing dates: 10, 13, 14, 16, 17 and 20 November 2006
JudgementTopic Paragraphs A INTRODUCTION 1 – 9 B THE FACTUAL BACKGROUND 10 – 110 C THE LEGAL FRAMEWORK 111 – 117 D THE EMPLOYMENT TRIBUNAL DECISION 118 – 123 E THE APPEAL AND CROSS APPEAL Perversity and Inadequacy of Reasons•Submissions 124 – 136•Discussion 137 – 165 The Cross Appeal 166•Submissions 167•Discussion 168 Victimisation 169- 170•Submissions 171 – 174•Discussion 175– 177 Conclusions on the Appeal 178 F OTHER ISSUES ARGUED ON THE APPEAL 179 Indirect Discrimination 180 – 181•Submissions 182 – 198•Discussion 199 – 203 Time Limits 204 – 205 Issues on Remedies 206 Section 57(3) of the 1976 Act 207•Submissions 208 – 212•Discussion 213 – 226 The Impact of the Creed Decision 227 – 237 Loss of a chance : error of law, adequacy of reasons and perversity 238 – 250 G SUMMARY 251 - 253

INTRODUCTION

[1]This is the judgment of the court to which all members of the court have contributed. The appeal arises from two decisions of an employment tribunal (ET), chaired by Ms AFW Woolley, sitting in Manchester. In the first decision, the ET held that there was liability for indirect race discrimination contrary to section 1(1)(b), and for victimisation contrary to section 2, of the Race Relations Act 1976 (the 1976 Act). The ET dismissed the claim for direct race discrimination. The second decision was on remedies and assessed damages for discrimination and victimisation. The tribunal ordered the appellant, the British Medical Association (the BMA), a professional body which acts as a trade union for doctors, to pay £814,877.41 (inclusive of interest) to Mr Rajendra Chaudhary, who is of Asian origin and was a member of the BMA and a Fellow of the Royal College of Surgeons. We understand that this is the largest sum ever awarded in a race discrimination case.[2]The setting of Mr Chaudhary’s race discrimination claims against the BMA and others is the reform of postgraduate medical training implemented between 1989 and 1996. The discrimination alleged against the BMA was based on its perceived failure to support Mr Chaudhary in his race discrimination claims against the regulatory medical bodies and persons responsible for decisions affecting Mr Chaudhary’s progress (or rather his lack of progress) through the reformed system. Mr Chaudhary claimed that discriminatory decisions of the BMA and others seriously damaged his prospects of a career as a consultant urologist.[3]Race discrimination in any form, direct and indirect, was and is strongly denied by the BMA. Its case is that it treated Mr Chaudhary in the same way that it treated, or would treat, its other members in the same or similar circumstances; it investigated the merits of his discrimination claims against the regulatory medical bodies and persons; it concluded that there was no real prospect of successfully challenging the lawfulness of the decisions that Mr Chaudhary alleged were racially discriminatory; and it informed him that it could take no action on his behalf, as the BMA does not support its members’ claims, unless they have a real prospect of success.[4]The appeal to this court is from an order made by the Employment Appeal Tribunal (EAT) (Mrs Justice Cox presiding) on 24 March 2004 dismissing appeals by the BMA.[5]The BMA appeals to this court with permission granted by the EAT, though on limited grounds. This court extended permission to appeal to cover the grounds refused by the EAT. At the heart of the BMA’s case is its contention that the findings of fact on which the holding of indirect discrimination was based were perverse. There is also a cross-appeal by Mr Chaudhary against the rejection of his direct race discrimination claim, only to be pursued if the BMA succeeds in its appeal against the tribunal’s rulings on indirect discrimination.[6]One of the issues argued on the appeal (whether damages are recoverable for unintentional indirect discrimination) raised a potential question on the compatibility of UK discrimination law with European Community law, which was not argued in the hearings below. On this point, the Secretary of State for Local Government and the Communities sought and was granted permission to intervene in the appeal. Written submissions were received.[7]This appeal was listed for hearing immediately after Mr Chaudhary’s application for permission to appeal in a closely-related race discrimination case (Chaudhary v. Secretary of State for Health). His claim against the Secretary of State for Health was heard by a different ET sitting in Manchester, but after the decisions of the ET and the EAT in his case against the BMA. Mr Creed was the chairman of the employment tribunal and the decision has been referred to as ‘the Creed decision’. It is so called in this judgment.[8]We announced the court’s refusal of permission to appeal from the Creed decision before we began to hear the substantive BMA appeal. Finality has been reached on the litigation against the Secretary of State, as there is no appeal from a decision of this court refusing permission to appeal to it. We also announced that the judgment of the court refusing permission to appeal against the Creed decision would be handed down at the same time as the judgments on the BMA appeal. The judgments should be read together and also against the background of the earlier judgments of this court referred to in paragraph 4 of the judgment on the permission application.[9]We say at this stage that we have determined that the appeal must be allowed and the award of compensation set aside. The essential ground is that no reasonable tribunal, properly directing itself on the law and on the evidence, could have concluded that the BMA was guilty of indirect race discrimination against Mr Chaudhary or victimisation of him. The BMA’s failure to support Mr Chaudhary’s claims for race discrimination against the medical regulatory authorities was not on the ground of his race; nor was it the result of the application to him of a discriminatory requirement or condition. The crucial point is that Mr Chaudhary’s allegations of race discrimination against him by the regulatory medical bodies were not well-founded in fact or law. On a proper understanding of all the evidence and the correct application of discrimination law, that fact, rather than any treatment tainted by race discrimination, was the explanation for the impugned decisions of the BMA relating to its advice, assistance and support. The result is that the BMA’s appeal on liability for indirect discrimination will be allowed and that all other issues on liability and damages in the appeal and the cross-appeal will fall with the setting aside of the ET’s decision.

THE FACTUAL BACKGROUND

[10]This exposition of the facts will necessarily be long. We take it primarily from the decision of the ET but, in places, it is supplemented by references to correspondence and BMA internal memoranda to which the ET did not expressly refer. We have inserted these references (to which we were taken in the course of argument) because they are not disputed and because they provide a more complete picture of the dealings between Mr Chaudhary and the BMA than would otherwise be available.[11]Mr Chaudhary was born in India in May 1959. He qualified as a doctor there in 1981. In 1987, he came to the United Kingdom and took work as a senior house officer. In 1988, he obtained his fellowship of the Royal College of Surgeons (FRCS) of Edinburgh. In 1989, he became an FRCS (London) and, in 1991, he obtained a diploma in urology. He held a registrar post in general surgery in Scotland from 1989 to 1991. For 7 months in 1991, he held an honorary registrar post in urology at Peterborough.[12]In 1991, he answered an advertisement, which appeared on 12 October 1991, in which the North West Regional Health Authority (NWRHA) offered a vacancy for the post of registrar in urology at North Manchester General Hospital. The advertisement stated that the post offered ‘excellent training’ in urological surgery and was ‘Royal College approved’.[13]In open competition and after an interview by a properly constituted appointments panel, which included a representative of the Royal College of Surgeons, Mr Chaudhary was offered this post. A letter of 26 November 1991 set out the conditions of appointment and the job description. From December 1991 to July 1995, Mr Chaudhary worked as a registrar in urology at North Manchester General Hospital.[14]According to successive editions of the Royal College of Surgeons’ publication “Recognised Hospitals and Appointments” between 1982 and 1994, the post of registrar in urology at North Manchester General Hospital was listed as being ‘recognised by Council as providing acceptable training’. It was Mr Chaudhary’s understandable expectation that, after a period in the Manchester post, he would progress to a senior registrar post and eventually to consultant status.[15]Changes in the training and qualification arrangements in the medical profession in the United Kingdom proposed, planned and implemented over the next few years had an impact on Mr Chaudhary’s ambitions to advance to consultant urologist status. It is necessary to provide some explanation of the position both before and after these changes.[16]Historically, the Royal College of Surgeons (one of several medical Royal Colleges) has been the body which governs the training of urologists. The Royal Colleges had the responsibility for approving the training facilities offered by hospitals throughout the country. The training of individual doctors was overseen by a postgraduate dean, appointed for a particular area by the combined medical Royal Colleges. Until 1989, there was little or no control over the number of training posts in existence and therefore little control over the number of doctors qualifying for consultant status in any particular specialty. In 1987 a report was issued called ‘Hospital Medical Staffing – Achieving a Balance – Plan for Action’. The report appears to contain proposals agreed by the UK Health Departments, the chairmen of regional health authorities and by a body known as the Joint Consultants Committee, which comprised representatives of the BMA and the Royal Colleges and some independent members. The purpose of its proposals was to control the number of doctors training to be consultants in each specialty. Each region was to be given a quota of ‘career registrar’ posts. A ‘career registrar’ was a registrar who was either a British or EU national or a doctor of overseas origin who had indefinite leave to remain in the UK and could therefore be expected to pursue a medical career in this country. On the other hand a ‘visiting registrar’ was an overseas doctor who did not have permission to remain and who would therefore be expected to return to practise in his own country when trained. The report made plain that all registrar posts (whether occupied by career or visiting registrars) had to be of comparable educational value and had to carry the approval (or recognition) of the relevant Royal College. Thus, there was to be no distinction between the ‘quality’ of the posts suitable for and open to visiting and career registrars. However, because of the quota system for career registrars, once a region had used up its quota, it could only appoint a visiting registrar to any other registrar post it wished to fill.[17]At the time of Mr Chaudhary’s appointment to the post in North Manchester, a change was taking place in the way in which the Royal College of Surgeons approved or recognised training posts. Until 1991, it had assigned the task to a committee of members of each specialty. However, in late 1991, a number of special committees (one for each specialty) were set up to undertake approval. These were called Specialty Advisory Committees (SACs). The SAC for Urology visited the North Manchester General Hospital in 1994 and declined to approve the post occupied by Mr Chaudhary as suitable for higher specialist training. It appears that Mr Chaudhary did not appreciate the implications of that refusal, although he was later to acknowledge that he was aware of it.[18]In April 1993, the Chief Medical Officer, Sir Kenneth Calman, issued a report outlining a new training regime designed to bring the UK into line with the European Community. As from April 1997, any doctor who was to practise as a consultant had to obtain a Certificate of Completion of Specialist Training (CCST) at which time his name would be entered onto the relevant specialist register kept by the General Medical Council. Existing consultants were to be automatically entered on the register.[19]For doctors wishing to undertake specialist training, a new specialist registrar grade was introduced as from 1 December 1995 to replace the previous grades of registrar and senior registrar. There was to be a transitional period for each specialty, during which doctors in training who were eligible for entry to the new grade would be transferred into it, would be advised how much more training they would be expected to undertake, would be placed in a training position and would be giving a national training number (NTN).[20]In March 1996, ‘A Guide to Specialist Registrar Training’ (known as the Orange Book or Orange Guide) was published by the Department of Health. It explained the new arrangements and laid down the criteria for transition from the old training regime to the new specialist registrar grade. For example it provided that existing occupants of career registrar and senior registrar posts would be automatically transferred into the new grade. Of direct relevance to the present case was the provision (found at Paragraph 8c of the Guide) relating to doctors who had previously held a career registrar post. There was eligibility for ‘doctors who have previously held a substantive career registrar appointment with staffing and educational approval (by the Royal College or Faculty) recognised by the postgraduate dean and are currently conducting research or other activity recognised by the appropriate education authority’. Paragraph 8e provided that overseas doctors who, before or during the transitional period had acquired the right of indefinite residence in the UK would be eligible provided they satisfied the criteria set out in Part Three of the Guide. The provision relevant to Mr Chaudhary was to be found at paragraph 42. The requirements were(a) that the doctor should hold the minimum entry requirements (which in Mr Chaudhary’s case was the FRCS) and(b) that ‘they can be assessed by the postgraduate dean, with appropriate advice from the College or Faculty, as having become visiting registrars through an appointment process which conformed to the criteria and conditions then in force for appointment to an NHS career registrar post’.[21]There was to be a period of transition during which the postgraduate dean for each region was to decide whether a doctor met the Orange Guide criteria and was entitled to be ‘transited’ (as it came to be called) into the new specialist registrar grade. Doctors who were not eligible for automatic transfer had to apply and compete for the limited number of available training posts.[22]As we have said, the usual method of gaining entry to the specialist register was to be the completion of the training programme and the grant of the CCST. However, for a transitional period, there was to be an alternative method of securing entry to the specialist register. This was known as ‘Transitional Mediated Entry’, in which the training and qualifications of a doctor were assessed by the Specialist Training Authority (STA) to see if he had complied with the training regulations in force before inception of the specialist registrar grade and to see if he had attained a level of training equivalent to that obtained by completion of the new specialist registrar training programme. If he had, the STA could enter his name onto the specialist register.[23]On 1 April 1996, transition to the specialist registrar training grade began for trainee urologists. The transition period was to last until January 1997. By this time, Mr Chaudhary had left North Manchester General Hospital. From August 1995 to February 1996 he carried out 6 months’ research at the Christie Hospital in Manchester. On 4 January 1996, his immigration position was secured by the grant of the right of indefinite leave to remain in the UK. On 18 February 1996, he obtained employment as a locum senior registrar in urology in Portsmouth, where he remained until 21 January 1997.[24]While in post at Portsmouth, Mr Chaudhary took steps to gain transition to the new specialist registrar grade. In about March 1996, he consulted the BMA. Then on 12 April 1996, he wrote to the Regional Postgraduate Dean for Wessex, Dr Hugh Platt, applying for transition. His claim was that, at the commencement of the transitional period on 1 April 1996, he satisfied the minimum entry requirement (FRCS) and the relevant conditions laid down in the Orange Guide. In particular he could comply with paragraph 42 of Part Three. He had been an overseas doctor but now had the right of indefinite residence in the UK; and he had occupied an NHS career registrar post at North Manchester General Hospital, to which he had been appointed in open competition by a properly constituted appointments committee and which was expressly stated to be ‘Royal College approved’.[25]Dr Platt made enquiries about Mr Chaudhary’s eligibility for transition. On 13 May 1996, Mr FJ Bramble, the Regional Adviser in Urology for Wessex, expressed the view to Dr Platt that Mr Chaudhary had not occupied an ‘approved’ registrar post at North Manchester General Hospital, as it was not approved by the Royal College of Surgeons’ SAC in Urology. Mr Bramble also expressed doubt about whether Mr Chaudhary had been appointed to the post by a properly constituted appointments committee. In the event, it was found that he had been and that factor ceased to be a problem. However, the ‘approved’ status of the post remained contentious.[26]In his capacity as Dr Platt’s Regional Adviser, Mr Bramble had consulted Professor AR Mundy about Mr Chaudhary’s application. Professor Mundy was then the Chairman of the SAC in Urology, which advised the Royal College in relation to that specialty. The consultant urologists at North Manchester General Hospital (Mr JB Garland FRCS and Mr CB Costello FRCS) were also consulted about the status of the registrar post which Mr Chaudhary had occupied. All three reported to Dr Platt that the North Manchester post did not have the necessary SAC approval for higher specialist training in urology.[27]On 23 July 1996, Dr Platt rejected Mr Chaudhary’s application for transition and an NTN on the ground that the post that he had held at North Manchester did not have SAC approval. He informed him that he would have to compete for specialist registrar posts as and when they were advertised. He expressed understanding and sympathy for Mr Chaudhary’s situation and said that he would be having discussions as to how he could progress the situation and sort it out as soon as possible.[28]During the period between Mr Chaudhary’s application and its rejection, Mr Chaudhary had been taking advice from Ms Tessa Margrie, the Regional Officer of the BMA based in Winchester. She was taking advice about his situation from Dr Alison Powell, co-secretary of the Junior Doctors’ Committee (JDC) of the BMA. Soon after Dr Platt had rejected Mr Chaudhary’s application, on 1 August 1996, Ms Margrie wrote to Dr Platt seeking to persuade him that Mr Chaudhary ought to be given transition. There had, she said, been some confusion regarding the role of the SAC in recognising or approving posts.[29]In a letter of 27 August 1996, Professor Mundy stated that, in his opinion, there was no question of Mr Chaudhary being entitled to an NTN, because he had not held ‘a substantive career registrar appointment with staffing and educational approval by the Royal College’. This was a quotation from Paragraph 8 of the Orange Guide. Professor Mundy claimed that the urology unit at North Manchester had first applied for SAC approval in 1984 but had been refused. The unit had applied again in 1994 and had been refused again. It seems likely that he was wrong about the first application having been made and refused in 1984, because, at that time, as the ET accepted, the Royal College of Surgeons had not yet delegated the function of approval to its SACs. However, it may be that the urology unit had applied and been refused approval for higher specialist training albeit that the decision was not at that time made by the SAC.[30]In his evidence to the ET, Mr Chaudhary said that he had learned in 1994 that the SAC had refused to approve his post. He accepted that posts could be recognised for basic training or higher specialist training, but said that, in the surgical specialities, registrar and senior registrar posts had, traditionally, been recognised for higher specialist training and that his post appeared to him to have been recognised for that purpose.[31]Dr Platt’s decision on Mr Chaudhary’s application led Mr Chaudhary later to allege that Dr Platt had directly discriminated against him on racial grounds in refusing his application and that the Secretary of State for Health was vicariously liable for Dr Platt’s direct race discrimination.[32]After this rejection, Mr Chaudhary enlisted the support of the BMA in challenging the decision. Dr Powell sought the advice of the Legal Department. She also wrote to Ms Margrie explaining her views. She discussed the requirements of the Orange Guide, expressing the view that Mr Chaudhary appeared to comply with the requirements for transition. She noted that, in the advertisement, his post in North Manchester had been described as ‘Royal College approved’. Also the post was listed by the Royal College of Surgeons as providing acceptable training. She expressed doubt about the accuracy of Professor Mundy’s claim that the North Manchester urology unit had been refused SAC approval as early as 1984. On 20 September 1996, Ms Margrie wrote to Dr Platt making these points in support of Mr Chaudhary’s claim for transition.[33]In early October 1996, Mr Chaudhary requested a review or reconsideration of Dr Platt’s decision. This was to be supported by the BMA and Dr Powell continued to make enquiries. However, these did not provide any further useful information and, on 22nd October, Dr Powell wrote to Mr Tony Coley, the BMA’s Industrial Relations Officer in Winchester, explaining that only approved posts (whether by the Royal College or the SAC) could be counted for the purpose of entry into the specialist registrar grade. She also reported upon her enquiries as to whether the rules on transition were being applied in other specialties in the same way as they had been applied to Mr Chaudhary. She said that, although some postgraduate deans were taking a slightly more flexible approach on some issues, there appeared to have been no departure from the rule that, in order to qualify for transition, a registrar had to have been in an approved training post.[34]On 4th December 1996, Ms Angela Anstey, a lawyer in the BMA Legal Department wrote to Dr Powell in response to the queries she had raised about Mr Chaudhary’s position. In particular, she expressed the view that Mr Chaudhary was unlikely to be granted transition as his North Manchester post had not been recognised. The fact that he believed that it was recognised might, she thought, give rise to a possible claim for misrepresentation against the NWRHA. She suggested that that authority be asked for its explanation of the advertisement.[35]On 14 January 1997, Mr Coley accompanied Mr Chaudhary to a hearing where a panel reconsidered Dr Platt’s refusal of his application. The panel consisted of Dr Platt, two regional specialty advisers and two representatives of the SAC in urology.[36]Dr Platt, who appears throughout to have been sympathetic to Mr Chaudhary’s predicament, advised the panel that a requirement that a doctor had occupied a SAC approved post could be viewed as ‘racially discriminatory’. He also pointed out that the Orange Guide did not mention that converted posts must have had SAC approval.[37]On 7 February 1997, Dr Platt informed Mr Chaudhary that his ‘appeal’ against the refusal of the NTN had failed. He accepted that Mr Chaudhary held the minimum entry requirement for the grade of Specialist Registrar (FRCS) but explained the position as follows:
“I found that the appointment process to your Registrar post in North Manchester did not conform to the criteria and conditions then in force for an NHS Career Registrar post. This is because the post was not recognised by the SAC in Urology for Higher Specialist Training.”
[38]Mr Chaudhary was told that he must acquire a specialist registrar position in open competition and that, once he had obtained one, the SAC would recommend that he be placed on level 3 of the new training programme, which would take account of 1 year of his training in North Manchester and the year he had spent at Portsmouth.[39]Mr Chaudhary expressed his disappointment to Dr Powell in an undated letter apparently sent on 15 February. He was not at this stage in any way critical of the assistance he had received from the BMA; indeed he said that he had been ‘ably supported by the team in Winchester’. He said that he had reason to believe that the criteria for transition were not being applied uniformly throughout the country and in the different specialties. He asked her if she could find out what had been happening, for example, in urology in the North West Deanery.[40]At about the same time (19 February 1997), Mr Coley wrote to Ms Anstey, to tell her about the appeal. He said that the result was disastrous for Mr Chaudhary. He had been applying for specialist registrar posts for some time without success; he felt that it was hopeless as he was competing against much younger candidates. Mr Coley said that Mr Chaudhary would like advice as to whether he had any legal remedy.[41]On 13 March 1997, Mr Coley wrote to Mr Roger Dowsett of the BMA Legal Department, telling him Mr Chaudhary’s story and expressing the view that Mr Chaudhary had been seriously misled in 1991 about the status of his post. For the first time, the question of racial discrimination was mentioned by Mr Chaudhary. Mr Foley said that Mr Chaudhary thought that there had been indirect racial discrimination and that he had been appointed to the post on the assumption that he was not going to stay in this country, when the opposite was true. He wanted legal advice as he felt inclined to pursue a racial discrimination claim against the North West Deanery.[42]On 26 March 1997, Miss Anstey replied to Mr Coley’s letter of 13 March. She repeated what she had said earlier about the possibility of misrepresentation in 1991 by the NWRHA and also by the Royal College of Surgeons who had listed the post as approved. She also wanted to know when Mr Chaudhary had first discovered that the post was not recognised. As to racial discrimination she said this:
“With regard to the point about racial discrimination, I would state that there used to be a number of listed registrar posts which were filled by doctors from overseas. These were always different from other registrar posts and I do not believe that this system was of itself discriminatory and I believe that if we were trying to say that the way Mr Chaudhary was treated back in 1994 (sic –she must have meant 1991) was as a result of discrimination, we would first of all face the fact that we are out of time and secondly do not have very good arguments.”
[43]Ms Anstey wrote to Mr Coley again on 15 April 1997, noting that Mr Chaudhary had still not given clear information about exactly what had been said to him in 1991 about the recognition of his post. This information was vital if she were to advise on a possible claim for misrepresentation. She repeated her view that the arguments on racial discrimination did not seem strong; in any event a claim in respect of the events of 1991 was out of time.[44]Mr Chaudhary dealt with Ms Anstey’s queries in a letter to Mr Coley on 21 May 1997. His eventual position was that he had understood that he was to receive training in urology. Registrar posts in surgical specialties usually had recognition for higher training. He had not been told anything to the contrary. However, nothing specific had been said about recognition at the interview. In the letter of 21 May, he added that he did not wish to ‘play the race card’ but he felt that he was being treated unjustly. He asked Mr Coley if it would be a good idea for him to communicate directly with the Legal Department. The following day, Mr Coley reported to Mr Chaudhary that he had received advice about limitation periods. For misrepresentation, the period was 6 years. For racial discrimination it was ‘the usual’ period (he must have meant 3 months) but it was possible to go back longer if there was a continuing act. That, he said, did not seem to apply to this case.[45]In the ensuing weeks, Mr Coley continued his efforts to assist Mr Chaudhary. In particular he raised the case in a discussion with Dr Platt, who expressed sympathy and a desire to help Mr Chaudhary to obtain an appointment to a specialist registrar post.[46]On 21 April 1997, Ms Gail Norcliffe, co-secretary of the BMA JDC, wrote to Professor Temple at the NHS Executive. He was Special Adviser to the Chief Medical Officer and Chairman of the Calman Implementation Steering Group on Higher Specialist Training. Ms Norcliffe asked Professor Temple for his advice and help in respect of Mr Chaudhary’s position on automatic transition to the Specialist Registrar grade following his unsuccessful appeal. The status of the North Manchester registrar post and its lack of SAC approval for higher specialist training were specifically raised in the letter, as was the possibility that Mr Chaudhary had been misled about the status of the North Manchester post by the terms of the advertisement. Ms Norcliffe expressed concern that injustice had been done.[47]In his reply dated 1 August 1997, Professor Temple advised Ms Norcliffe that Mr Chaudhary was not entitled to an NTN under the transition arrangements, because his post in Manchester had not been approved by ‘the appropriate Education Authority’ (the SAC in Urology), and his post in Portsmouth, at the time of the transition, was that of locum registrar; it was not a substantive post. The efforts of the JDC to lobby Professor Temple continued until late November 1997 when Mr Andrew Hobart, deputy secretary of the JDC, discussed Mr Chaudhary’s case with him. Professor Temple maintained that it was not possible to allow transition due to the lack of approval of the North Manchester post.[48]On 27th September 1997, Mr Chaudhary wrote to Dr EM Armstrong, the Secretary of the BMA. He said that he had been waiting for three months for definite advice from the Legal Department about his position; this had not been provided. Also, the Department had ignored his request for a face to face meeting. He observed that the deadline for any legal redress was approaching and he sought Dr Armstrong’s help in getting the Legal Department to act. The reference to a deadline must have been to the expiry of the 6 year limitation period which would apply to a claim for misrepresentation. Dr Armstrong appointed Mr John Deval, the regional manager for the South West, to look into Mr Chaudhary’s complaint.[49]On 28 October 1997, Mr Deval wrote to Mr Chaudhary apologising for the unacceptable delay that had occurred in the provision of advice. (We note that in about September 1997, Ms Anstey who had been handling his file in the Legal Department had gone off on maternity leave and Mr John Quigley had taken over responsibility for it). Mr Deval discussed the possibility of a claim for misrepresentation and explained that the Legal Department had concluded that there was no evidence that Mr Chaudhary had been misled in 1991. There was no other legal remedy available to him. Mr Deval also explained that it was not possible for the BMA to offer direct legal services to its members. Accordingly he supported the view of the Legal Department that there should not be a meeting. The ET was later to form the view that the BMA did not want a meeting with Mr Chaudhary.[50]Mr Chaudhary was not satisfied with Mr Deval’s response and, on 30October 1997, he wrote to Dr Armstrong again. He said that Mr Deval’s reply was ‘a bundle of red tape’. He complained again that the BMA had refused to meet him. He also said that he had independent legal advice which contradicted the BMA’s view that he had no legal remedy. He did not say what the advice was. However, he did say that he was not going to let matters rest. He was going to consult the Commission for Racial Equality (CRE). This was the first hint that he was thinking in terms of racial discrimination specifically in respect of the Postgraduate Dean’s decision. He said that if he won his case with their help, it would not be good publicity for the BMA. He suggested that the BMA could still change its mind but he could not wait long. Dr Armstrong replied drawing attention to the BMA booklet in which were set out the terms on which legal assistance was offered to members.[51]On 28 November 1997, Mr Chaudhary asked the BMA to reconsider its decision. In his letter to Dr Armstrong, he said that he had the advice of three sets of independent legal advisers, all of whom were of the opinion that there was evidence of direct and indirect race discrimination by the NHS Executive and the Royal College. Mr Chaudhary did not at that time say who had provided these legal opinions but it emerged in cross-examination at the ET hearing that Mr Chaudhary had taken advice from a solicitor who offered advice at a free oral consultation, a legal helpline and a Mr Malkan, a member of the BMA who had a diploma in law. Nor did Mr Chaudhary make it plain that he was in fact alleging racial discrimination in respect of Dr Platt’s refusal to give him transition.[52]Dr Armstrong thought that the BMA should review its decision not to provide legal support by referring the question to a ‘Cases Committee’. Mr Chris Hughes, the Head of the Legal Department, persuaded him that this was not a good idea. There was, in his view, no merit in Mr Chaudhary’s case. The Legal Department had considered and rejected misrepresentation. As for race discrimination, any claim for discrimination in 1991 was long out of time. We note that this opinion related only to the possibility of a claim arising from the events of 1991. As we have said, Mr Chaudhary’s letter of 28 November did not make it plain that he was now asking for support for a race discrimination in respect of the refusal of transition. In the event, on 4December 1997, Dr Armstrong wrote to Mr Chaudhary to say that there was nothing further the BMA could do by way of legal assistance. However, he drew attention to the fact that there had been a change to the regulations relating to the Specialist Register and it might now be possible for him to gain entry. Mr Coley would be happy to advise how to apply.[53]Meanwhile, on 2 December 1997, Mr Chaudhary presented an originating application in the Southampton employment tribunal against 7 respondents, including the Postgraduate Dean, the Royal College of Surgeons, the National Health Service Executive and the Department of Health. He alleged that the decision denying him automatic transition to the Specialist Registrar grade was racially discriminatory. It should be noted that Dr Platt’s initial decision had been communicated to Mr Chaudhary on 23 July 1996 and the appeal decision on 7 February 1997. Both decisions had been made well over three months before the originating application was presented, so, on the face of it, any claim for racial discrimination in respect of either decision was out of time.[54]On 12 December 1997, Mr Chaudhary wrote to Dr Armstrong to tell him that he had commenced proceedings for racial discrimination. He explained that his contention was that the requirement that he should have been in a post approved by the SAC was not a proper requirement and had been imposed unfairly to prevent him from completing his specialist training. This was an act of racial discrimination. He asked the BMA to reconsider its refusal to provide legal support in the light of this information and, if it maintained its position, to provide reasons, which would be shown to the CRE. His position was now clear; he wanted support for a racial discrimination claim in respect of the refusal of transition.[55]On 8 January 1998, Mr Coley wrote to the Secretary of the JDC to explain that Mr Chaudhary was now of the view that the Postgraduate Dean’s acceptance of the SAC opinion (that SAC approval of the post was necessary) was ‘tantamount to racial discrimination’. Mr Coley said that he had sympathy with this view, although he did not say why. However, he observed that Mr Chaudhary’s post had been ‘identical to other career registrar posts … which have subsequently attracted recognition for NTN purposes’ and had not been designated as ‘visiting registrar’. He enquired whether it would be possible to apply any political pressure to secure a change of the view of the SAC, in the light of the fact that it appeared that the SAC policy might be discriminatory.[56]On 13 January 1998, Mr Chaudhary wrote to Mr Hobart to thank him for his committee’s support so far and to seek to enlist his further help. He set out the background to his case and all relevant facts. He began by outlining the provisions of ‘Achieving a Balance – A Plan for Action (1987) much as we have set them out in paragraph 16 above. Then he explained the circumstances of his appointment to the North Manchester post and made the point that if the appointments committee had appointed a doctor who could pursue a career in the UK, he would have been described as a ‘career registrar’. He then set out the relevant provisions of the Orange Guide (much as we have done in paragraph 20 above) and demonstrated that he could comply with all of them. He then explained that he had been refused transition to the new grade because it was said that his post was not recognised by the SAC for higher specialist training. Under a heading entitled ‘Why I Disagree’, he wrote:
“It is evident that following the implementation of ‘Achieving a Balance’ it was the registrar post-holder (and not the post) who was designated as career or visiting. The process of appointment for the two types was identical and, in my case, as the post had been advertised as an open post, it certainly was. In 1991, the Registrar posts did not need to have SAC approval, and most certainly, SAC approval was not required to give training to a career registrar. As was made clear in ‘Achieving a Balance’ it was not intended that the posts should be segregated.”
[57]He then set out the steps he had taken to resolve the situation. He concluded by saying that he now felt that the Postgraduate Dean had discriminated against him by not allowing him automatic transition to the specialist registrar grade. He said that he had asked the Legal Department for help but so far it had failed to ‘see a case’.[58]We pause there to make two observations. First, there is no evidence that the Legal Department had at this stage considered a case of race discrimination alleged in respect of the application for transition; it had considered only the possibility of discrimination in 1991 and had noted that any such claim was long out of time. Mr Chaudhary had only mentioned his contention that there might have been racial discrimination in respect of his application for transition when he wrote to Dr Armstrong on 12 December 1997, although he had hinted at it in the October. The BMA was yet to consider whether to support his race discrimination case in respect of the refusal of transition. Second, it must be noted that neither the letter of 12 December 1997 nor that of 13 January 1998 explained in what respects Mr Chaudhary thought that the decision had been discriminatory. We make this point not as a criticism of Mr Chaudhary; he is not a lawyer and cannot be expected to recognise or explain a case of racial discrimination. We make the point because, as we shall see, the ET was critical of the BMA (and in particular its Legal Department) for failing to see that Mr Chaudhary had a race discrimination case that was worthy of support in respect of the decision to refuse transition. The validity of that criticism is dependent upon the information that was or should have been available to the Legal Department at that time.[59]Mr Hobart did not reply personally. Ms Norcliffe replied on his behalf on 3 February 1998 saying that he could not take the matter further. It appears that Ms Norcliffe referred Mr Chaudhary’s case back to the Legal Department where it had become the responsibility of Mr Quigley. Mr Quigley agreed to meet Ms Norcliffe and Mr Coley to discuss Mr Chaudhary’s case. Due to their other commitments, that meeting did not take place until 10 June 1998.[60]Meanwhile, on 11 March 1998, the CRE wrote to the BMA asking it to explain why it had withdrawn its assistance. Mr Quigley replied but did not answer the question. He said that there had been extensive correspondence between the BMA and Mr Chaudhary and that he was the person best placed to provide the CRE with the information needed to deal with the case against the NHS institutions. If the CRE had any specific questions, Mr Quigley would answer them. The CRE replied on 12 May 1998 setting out the factual background as it understood it to be and asking whether the BMA agreed that it was accurate. The account included the suggestion that Mr Chaudhary was able to comply with all the criteria for transition; therefore the reason for denying him entry to the new grade was unsound; therefore he had suffered a detriment. The letter continued by saying that Mr Chaudhary now believed that the refusal to admit him was an act of racial discrimination. Then it stated:
“The Commission has not received any other explanation. Do you have any information that can provide an alternative explanation?”
The letter concluded by asking whether the BMA would be prepared to provide Mr Chaudhary with representation ‘if discrimination appears likely’.[61]In his reply, dated 26 May 1998, Mr Quigley stated the BMA’s understanding that the post occupied by Mr Chaudhary in Manchester had not in fact been approved for higher surgical training and, for that reason, Mr Chaudhary did not qualify for entry to the new grade. He gave an assurance that, if discrimination appeared likely, the BMA would consider providing Mr Chaudhary with representation. It provided representation in meritorious cases. He mentioned three such cases in which he had recently been personally involved. He then explained how the BMA saw Mr Chaudhary’s case. It was accepted that Mr Chaudhary had suffered loss as the result of spending time in a post which was not recognised. However, it did not appear that there was sufficient evidence to discharge the burden of proof in an action for breach of contract and/or misrepresentation and/or negligence. As for discrimination, he said that he did not ‘fully understand what the precise allegation’ was or what evidence there was to back it up. He mentioned that he was due to have a meeting (with Mr Coley and Ms Norcliffe) in a few weeks time at which he intended to explore that issue. He asked the CRE if they would let him know what they regarded as ‘the discrimination element’ in the case.[62]The CRE never did tell Mr Quigley what they regarded as the ‘discrimination element’. Later, in September 1998, they wrote to the BMA seeking clarification of various points in Mr Quigley’s letter of 26 May. Mr Quigley replied in September, and also repeated his request that the CRE should explain to him what the case on discrimination was. He did not receive a reply to that letter and the CRE ceased to be involved in Mr Chaudhary’s case some time later.[63]On the same day (26 May 1998) as Mr Quigley had written to the CRE asking them to explain what the case was on race discrimination, he also wrote to Mr Coley asking him if he could explain what Mr Chaudhary had in mind as the racial discrimination. On 4 June, Mr Quigley wrote to Ms Norcliffe and Mr Coley suggesting an agenda for their forthcoming meeting. As item 2, he proposed a discussion of the basis of the allegation of race discrimination currently being propounded by Mr Chaudhary. He said that he did not understand what allegation was being made. Mr Coley replied to say that he would ask Mr Chaudhary to tell him precisely why he thought he had been discriminated against. He plainly did so and Mr Chaudhary supplied him (in confidence) with a copy of an advice, dated 12 May 1998, written by Mr William Panton of counsel.[64]We will describe the advice because it was to play quite an important part in the decision of the ET. It began by setting out the relevant provisions of the Race Relations Act 1976. It cited extracts from ‘Hospital Medical Staff – Achieving a Balance’ and the relevant extracts from the Orange Guide. It set out Mr Chaudhary’s personal history and the history of his attempts to obtain transition into the new specialist registrar grade. This culminated in a reference to the letter from Professor Temple dated 20 November 1997, which counsel described as a ‘final refusal’ of Mr Chaudhary’s application for a NTN. (We interject that the ET in Southampton was later to reject that and to hold that the final refusal had been Dr Platt’s letter of 7 February 1997.) In a section headed ‘Assessment of Reasons for not awarding NTN’, Mr Panton gave his reasons for believing that the reasons for refusal were flawed. In summary, the first four reasons were that Mr Chaudhary’s Manchester post was approved by the Royal College and he could in all respects comply with the criteria in the Orange Guide. There was no requirement for SAC approval in the Orange Guide. The seventh was that there was a general consensus that Mr Chaudhary was ‘consultant material’. Those may well have been good reasons to conclude that the decision to refuse Mr Chaudhary transition was flawed, but it does not appear to us that they say anything about racial discrimination. However, the fifth and sixth reasons may have done. These were:
“Fifthly, the correspondence shows that different standards and criteria were being applied in determining who should be given a NTN during the transitional arrangements. Sixthly, the Applicant (Mr Chaudhary) will rely on the experience of white colleagues to show he was treated less favourably on racial grounds.”
[65]Mr Panton dealt with the issue of the time limit and expressed the view that Mr Chaudhary’s application had been lodged in time, only shortly after Professor Temple’s final refusal of his application. Finally, he noted that there was nothing in the correspondence to indicate that the refusal was on racial grounds and expressed the view that:
“It will therefore be for the tribunal to decide whether the explanations put forward so far for refusing the Applicant an NTN are reasonable in all the circumstances.”
[66]Mr Panton also mentioned the availability of statistical evidence to show that, in some regions, overseas doctors were treated less favourably in the implementation of the training reforms and were disadvantaged by the arrangements under the Orange Guide. It appeared, in his view, that a two tier system of recognition was being operated. He concluded “34. I am satisfied that, on the basis of the evidence in this case, in all probability the tribunal will find that the reasons given for not awarding the Applicant a NTN are not genuine and that they will infer that it was refused on racial grounds. [I] therefore advise that the application has a realistic chance of success and should be supported.”[67]Pausing there, Mr Panton had given favourable advice. He seemed in his fifth and sixth points to have been referring to evidence of white doctors being treated more favourably than Mr Chaudhary. If he had such evidence, it is surprising that he did not set it out in his advice. Towards the end, he referred to statistics which he seemed to think were helpful. However, he did not state what those statistics were or how they were going to help. Mr Quigley told the tribunal that he discussed this opinion with others in the department but they, like he, could not understand what the case was said to be on discrimination. He told the ET that he made enquiries about Mr Panton and discovered that, for some time, he had been employed by the CRE. As we will later explain, the ET was very critical of Mr Quigley for concluding at this stage that Mr Chaudhary did not have a supportable case on discrimination.[68]On 10 June 1998, Mr Coley, Ms Norcliffe and Mr Quigley met to discuss Mr Chaudhary’s case. Mr Quigley prepared an attendance note of the discussion. He was of the view that there was no merit in a claim for misrepresentation and no merit in the allegation that the medical authorities had directly discriminated against Mr Chaudhary, because the reason why he had not been given an NTN on transition was that he was not eligible.[69]Mr Coley did not agree with Mr Quigley’s view of the merits of Mr Chaudhary’s case. In a memo dated 1 July 1998, he expressed the view that there had been indirect racial discrimination. He did not say why he was of that view. He also expressed doubt about Mr Quigley’s conclusion that the Manchester post had not been ‘recognised’. He then said that ‘apparently’ some doctors in other Royal Colleges who had been in posts similar to Mr Chaudhary’s had been granted transition. He wondered whether they were all white. He did not say what, if any, information he had about these other doctors who had apparently been treated more favourably than Mr Chaudhary.[70]Mr Quigley wrote back to Mr Coley on 10 July 1998. He asked Mr Coley to agree with his statement of fact (which Ms Norcliffe agreed) that the Manchester post had not been recognised for higher specialist training. Mr Coley declined to agree, saying that, if it was ‘recognised’ it must have been recognised for higher professional training. In reply, Mr Quigley maintained that the post had not in fact been recognised and the fact that the hospital had claimed that it was recognised did not make it recognised. Mr Quigley and Mr Coley remained in disagreement. No further legal assistance or advice was offered by the BMA to Mr Chaudhary at that stage.[71]Meanwhile Mr Chaudhary had taken Dr Armstrong’s advice (see paragraph 52 above) and, on 23 December 1997, he had made an application to the Specialist Training Authority (the STA) for mediated entry to the Specialist Register under Article 12(2)(c) of the European Specialist Medical Qualifications Order 1995. This required him to satisfy the STA that he had “… been trained in the UK in such a speciality and that training complied with the requirements relating to training in that speciality current in the UK at the time he undertook it.”[72]His application was supported by a reference from Mr Costello (one of the urologists at North Manchester General Hospital) and other helpful material from Portsmouth. On 28 September 1998, the STA rejected Mr Chaudhary’s application. It advised that he must obtain a training post by open competition in order to complete his specialist training. However, it accepted two of the years spent in the Manchester post as providing approved urology training. The letter of rejection advised him of the possibility of an appeal and a review of the decision. It appears that the STA acted through the relevant Royal College and that the STA decision in Mr Chaudhary’s case had been taken by the Royal College of Surgeons.[73]On 1 November 1998, Mr Chaudhary sent the STA decision to Dr Platt, pointing out that a period of his Manchester training had been accepted by the STA. He asked him to reconsider his earlier decision. On 16 November 1998, Dr Platt wrote expressing concern at the implications arising from the STA decision. Apparently he did reconsider his decision but, on 15 December 1998, he refused to alter it. His reason was that training relevant to entry to the Specialist Register by the STA was not relevant to entry to the Specialist Registrar grade. The requirements were different. He repeated that Mr Chaudhary did not qualify for entry into the Specialist Registrar grade, as his post in Manchester was not recognised by the SAC in Urology for higher specialist training and therefore did not conform to the criteria for Specialist Registrar appointment.[74]By this time, Mr Chaudhary had moved back to live in Manchester. On 9 November 1998, he wrote to the BMA in Manchester, seeking support in respect of the STA’s rejection of his application. He said that he felt that he had been discriminated against. He said that the Royal College had recognised in full the training of his white contemporaries who had received similar training; they had progressed to consultant status. We note that he did not say who they were. That letter was dealt with by Mr Peter Forster, the Industrial Relations Officer for the North West region. He replied on 10 November 1998 providing advice about the availability of an appeal from the STA decision and explaining that the BMA would only provide representation if the appeal entailed an issue of principle of importance to the profession. The question of representation would be decided by a Screening Group set up for the purpose.[75]Mr Chaudhary’s response was that he wished to spell out that he was alleging racial discrimination against the Royal College of Surgeons and the STA. He asked Mr Forster to define exactly what the BMA regarded as a matter of principle.[76]On 25 November 1998 Mr Forster informed Mr Chaudhary that his application for assistance would be put before the BMA’s Screening Group. He advised that, if Mr Chaudhary wished to raise race discrimination, he should add this to his grounds of appeal. He also advised that, to safeguard his position, he should issue ET proceedings as well and do so promptly. He explained that the ET probably did not have jurisdiction to entertain an allegation of discrimination by the STA, but he gave detailed advice about how the application could be drafted. He said that he would arrange to meet Mr Chaudhary so that he could explain the basis of his race discrimination claim. He (Mr Forster) would then assess its merits.[77]Meanwhile, the BMA had become aware that quite a number of their members of overseas origin were alleging that the STA decisions were racially discriminatory. At its first meeting on 24 September 1998, the Screening Group had agreed to look for evidence of racial discrimination. Soon afterwards, the BMA received advice to the effect that claims for racial discrimination could probably not be brought before an ET. Thus they would have to be aired before the STA Appeal Panel. Mr Chris Hughes who was then Head of Legal Services for the BMA, advised the Group that members who wanted to pursue this course should be told ‘to produce actual evidence’. The ET was critical of Mr Hughes for saying that without giving any indication of what sort of evidence should be sought. The ET was also critical of the Screening Group for its failure proactively to assist IROs in searching for and identifying the kind of evidence that would be needed. We interpose to say that we doubt that that was the function of the Screening Group. The ET was told (by Dr Peter Hawker who became the chairman of the Screening Group) that the group decided that the BMA would not support a challenge to the criteria which the STA applied. The ET was of the view that this was what any doctor who thought the STA had discriminated against him would wish to do. In the event, it was decided that the Screening Group would not consider whether to support allegations of racial discrimination by the STA; advice on that issue would be given by the IROs in consultation with the Legal Department.[78]On 19November 1998, the BMA had a meeting with the CRE at which they discussed whether the criteria laid down by the STA were discriminatory. The BMA undertook to obtain information from the STA. Miss Ferrant of the BMA wrote to the STA asking for a statistical breakdown of its decisions, by reference to racial origin. These were provided in January 1999 and showed that doctors whose primary medical qualification had been obtained overseas were less successful in obtaining mediated entry than doctors who had qualified in the UK. For example, of those doctors who had initially qualified in India, about 60% were refused mediated entry whereas only about 35% of those who had qualified in the UK were refused.[79]Meanwhile Mr Chaudhary had decided to opt for a review of the STA decision (leaving open the possibility of an appeal later). On 7 December 1998, Mr Forster proffered further advice. He explained that the BMA had now received counsel’s advice to the effect that the ET would not have jurisdiction to hear complaints of racial discrimination by the STA. However, that did not mean that doctors who wished to make such a complaint had no remedy. They should advance their arguments before the STA Appeal Panel and if the Panel did not apply discrimination law correctly, its decision may be open to judicial review. Mr Forster also said that the Legal Department was investigating the question of indirect discrimination in the operation of the STA criteria. A questionnaire was to be sent to the STA seeking statistics.[80]Looking ahead in relation to this issue, in June 1999, the BMA had another meeting with the CRE at which the application of the criteria for mediated entry to the specialist register was discussed. The CRE said that there would have to be an assessment of the way in which the Royal Colleges (who took the original STA decisions) were applying the criteria to individual doctors. It was agreed that the CRE’s concerns would be raised with the Royal Colleges, the Joint Consultants Committee (of the BMA) and the STA. The next meeting between the CRE and the BMA was cancelled. However, Dr Hawker must have written to the STA about the CRE’s concerns because, in August 1999, Lord Patel, the Chairman of the STA replied explaining that the criteria applied by the STA (which related to the adequacy of the training the doctor had undergone) were laid down in regulations and were applied without regard either to the ethnic origin of the applicant or the country of primary medical qualification. Applicants had to satisfy the STA that they met the required standards. He expressed the view that any form of racial discrimination in assessing the evidence would not be tolerated. Although he was aware that allegations of racial bias had been made, he was not aware of any evidence that it was taking place.[81]Still dealing with the outcome of the discussions with the CRE, on 7 December 1999, the JCC had a meeting with the CRE, at which there was a discussion about the way in which the Royal Colleges were applying the STA criteria. There was concern because doctors from the Indian Subcontinent appeared to be at a disadvantage. The ET considered that the BMA had not done anything about the problem of discrimination in respect of STA decisions.[82]Meanwhile, on 23 December 1998, Mr Chaudhary issued a second application in the ET (the Manchester proceedings) alleging race discrimination against Dr Platt in respect of his decision of 15 December 1998 and against the STA and Royal College of Surgeons in respect of its decision of 28 September 1998. A number of other medical bodies were also joined as respondents, most of whom had also been joined as respondents to the Southampton proceedings. Looking ahead, the ET rejected an application by the respondents to the Manchester proceedings to strike them out as an abuse of process on the ground that they duplicated the Southampton proceedings. The EAT subsequently dismissed an appeal by the respondents and the Court of Appeal refused an application by them for permission to appeal. The Manchester proceedings eventually went to a full hearing, which did not take place until early 2004; it resulted in the Creed decision. They proceeded only in respect of a claim against the respondent Secretary of State for Health, who accepted that he would be vicariously liable for the wrongful acts of the Postgraduate Dean. Mr Chaudhary withdrew his claims against the other respondents. The Creed decision was to the effect that there had been no race discrimination (direct or indirect) against Mr Chaudhary.[83]Returning to the BMA’s consideration of whether they would represent Mr Chaudhary on his STA appeal, on 14 January 1999, Mr Forster explained his plan of action. He would wait until the outcome of the review was known. If it was unsuccessful, he would put the request for assistance to the Screening Panel. He suggested that, if Mr Chaudhary had any problems with these proposals, he should let Mr Forster know.[84]At about this time, Mr Chaudhary instructed solicitors, Russell Jones and Walker (RJW). On 1 February 1999, apparently at Mr Chaudhary’s specific request, Mr David Franey of RJW wrote to Dr Armstrong inviting the BMA to reconsider its decision not to provide legal assistance to Mr Chaudhary. He described the Southampton proceedings, saying that direct and indirect discrimination were alleged. The basis of the claim was not explained, but a copy of Mr Panton’s advice was enclosed and attention was drawn to its optimistic conclusion. Mr Franey added that it might reasonably be said that the issues in the case were of importance to the members of the BMA since, if the claim were successful, it would mean that a considerable number of doctors had been disadvantaged by an unlawful and discriminatory training system. Further, the Manchester proceedings were explained and the position on support that had been reached with Mr Forster. Finally, Mr Franey said that Mr Chaudhary had asked him to point out that his difficulties in obtaining legal assistance from the BMA might be unlawful direct or indirect discrimination contrary to section 11 of the 1976 Act. This ‘warning shot’ that Mr Chaudhary thought that the BMA was discriminating against him was later to become of importance in the context of his contention that the BMA had victimised him.[85]On 11 February 1999, Mr Quigley wrote to RJW asking them for their opinion of Mr Chaudhary’s chances of succeeding with his two claims. He also repeated to Mr Franey the policy of the BMA of supporting meritorious claims, including claims for racial discrimination. On Mr Chaudhary’s instructions, his solicitors did not respond to Mr Quigley’s request for their opinion on the merits of the claims.[86]On 8 March 1999, Mr Forster wrote to Mr Chaudhary offering what he plainly intended to be helpful advice. He knew that, in the Manchester ET proceedings, Mr Chaudhary was alleging racial discrimination against the STA. Mr Forster had received advice from the BMA Legal Department about a recent decision of an ET in which it had been held that the ET had no jurisdiction to consider complaints of discrimination against the STA/Royal College. The doctor involved in that case had been ordered to pay costs. Mr Forster said that the Legal Department had advised that anyone with such a claim outstanding should withdraw it immediately to avoid the danger of a costs order. In fact this ET decision confirmed the correctness of the advice which Mr Forster had previously given Mr Chaudhary, based on counsel’s advice. It should be noted that Mr Forster was not advising Mr Chaudhary to withdraw his complaint against the other respondents, only that in respect of the STA decision.[87]Mr Chaudhary replied on 11 March 1999 and asked Mr Forster whether he was to understand that the advice in the letter of 8 March was his considered, specific and final advice and that the BMA would not assist him with his case. Mr Forster contacted Mr Coley about this who in turn contacted Mr Quigley. On 24 March 1999, Mr Quigley wrote to Mr Coley bringing him up to date about the letter received from RJW with its request to reconsider the question of assistance. Mr Quigley continued:
“The clear position that we are taking with Chaudhary and his lawyers is that we made decisions of (sic-presumably on) his various applications for assistance in the past and we are not prepared to re-open those decisions now.”
[88]Meanwhile there was further correspondence between Mr Chaudhary and Mr Forster about the BMA advice that doctors should not pursue allegations of racial discrimination against the STA/Royal College because there was no jurisdiction and a risk on costs. Mr Chaudhary was unwilling to accept this advice. Eventually, Mr Forster wrote to Mr Quigley for advice. In his reply on 16 April 1999, Mr Quigley advised that withdrawal of the allegation against the STA was a matter for Mr Chaudhary; he had been advised and it was now a matter for him. Mr Quigley wished to inform Mr Forster about another aspect of Mr Chaudhary’s case. He enclosed a copy of RJW’s letter of 1 February 1999, requesting reconsideration of the refusal of assistance and floating the possibility that Mr Chaudhary would allege racial discrimination by the BMA. He also enclosed a copy of his letter in reply, in which he had asked RJW for their opinion on the merits of Mr Chaudhary’s discrimination claims. He told Mr Forster that no reply had been received to that request. He then explained to Mr Forster, as he had explained to Mr Coley, that the BMA line on this was to refuse to reconsider its earlier decision. Mr Quigley suggested that Mr Forster should take the same line in dealing with Mr Chaudhary.[89]On 20 May 1999, Mr Quigley wrote to Mr Chaudhary seeking to clarify the content of his letter to Mr Forster dated 3 April 1999, which had been passed to him. Also he mentioned that he had not received any reply to his letter to RJW of 11 February 1999 (asking for their opinion on the merits) and asked whether that firm was still acting for him. Mr Chaudhary replied on 25 May 1999, acknowledging that he had instructed RJW not to write to the BMA. Mr Chaudhary then said that the BMA knew all the facts and had all the necessary documents. He suggested that Mr Quigley should ‘begin by examining the facts in depth’. If, having done that, he felt that he ‘needed any clarification on a point of law’, Mr Panton might be able to help. It appears to us that Mr Chaudhary was not prepared to explain to Mr Quigley how he saw his case on race discrimination; nor would he let his solicitors explain their view of the merits.[90]On 27 May 1999, Mr Quigley replied. He said that, for reasons which had been explained some time earlier, the decision had been taken not to support the Southampton proceedings. So far as the Manchester proceedings were concerned, in so far as they related to the decision of the STA, the BMA was of the view that the ET did not have jurisdiction to entertain a complaint of racial discrimination. Mr Forster had explained this. Mr Quigley concluded by asking that, if Mr Chaudhary wanted advice on any further issues, would he please identify them. Mr Chaudhary replied explaining that the Manchester proceedings were concerned with other respondents and other issues besides the STA’s refusal to admit him to the Specialist Register. He wanted advice on the other aspects. He also observed that Mr Quigley had not commented on Mr Panton’s advice (which related to the Southampton proceedings). He wanted to know whether, in the light of Mr Panton’s opinion, the BMA remained of the view that his case had no merit. Mr Quigley did not reply until August 1999, apparently due to pressure of work. When he did, he said that he did not understand what the other issues were in the Manchester proceedings, besides the STA issues, and asked for a summary of them.[91]Meanwhile, in May 1999, the review of the STA decision was completed. The decision remained unchanged. Mr Chaudhary was not to be admitted to the Specialist Register.[92]On 25 June 1999, the Southampton proceedings were dismissed by the employment tribunal, as having been brought out of time. Mr Chaudhary was unsuccessful in his subsequent appeal to the EAT and, on 15 May 2003, the Court of Appeal dismissed Mr Chaudhary’s appeal and his application for permission to appeal: [2003] EWCA Civ 645; [2003] ICR 1510. Mr Chaudhary’s petition for leave to appeal to the House of Lords was also dismissed: [2004] ICR 736.[93]On 15 July 1999 Mr Chaudhary wrote to Mr Forster telling him that the review had been rejected and that he now intended to appeal to the STA Appeal Panel. He asked for BMA assistance. He enclosed his grounds of appeal. They did not expressly mention racial discrimination but focussed on the extent of the training he had undertaken in the specialty of urology and sought to demonstrate that he fully complied with the regulations. However, the grounds contained a heading ‘Bias or Inadequacy’. At item 4, Mr Chaudhary complained that the standard (for mediated entry) was ill-defined and he believed that his ‘training compared with that of an average UK urologist, who was accepted as fully trained’. The appeal was lodged on 16 August 1999.[94]On 2 December 1999 Mr Forster wrote to Mr Chaudhary to inform him that the BMA Screening Group would not assist him in his appeal against the STA decision. The reasons for the Screening Group’s determination were attached. The Group had concluded that the appeal could not succeed; therefore it could not recommend that the BMA support the case. One of the reasons why the Group took this view was that the original refusal by the STA had been, in part based on the fact that Mr Chaudhary had not passed or taken an examination known as the ‘Intercollegiate Examination’. It was Mr Chaudhary’s contention that this was not necessary, as he had a diploma in Urology. However, in another case, the BMA had sought judicial review of the STA’s decision to insist on this additional qualification. The application had failed; the court held that STA was entitled under the regulations to insist on this qualification.[95]Mr Chaudhary’s appeal against the STA decision was ultimately rejected on 26 April 2001. On 7 June 2001, Sullivan J dismissed Mr Chaudhary’s application for judicial review of the decision of the STA’s Appeal Panel.[96]On 25 July 2001, Mr Chaudhary issued proceedings in the Manchester ET against the STA (the STA tribunal proceedings) alleging direct and indirect race discrimination and victimisation by the STA in refusing entry to the Specialist Register and by the STA Appeal Panel in rejecting his appeal. The ET struck out the claim for want of jurisdiction. The decision of the ET was upheld by the EAT and the Court of Appeal: [2005] EWCA Civ 282. The outcome was that the STA tribunal proceedings failed.[97]On 1 March 2000 Mr Chaudhary issued ET proceedings in Manchester against the BMA (the BMA proceedings). In brief, his complaint was that he had suffered direct and/or indirect racial discrimination and/or victimisation by the BMA, which had not provided him with adequate support and assistance for the complaints that he wished to make and did make about alleged racial discrimination by the professional and regulatory bodies. These included his complaints against the Postgraduate Dean (Dr Platt), the Royal College of Surgeons and the STA.[98]Mr Chaudhary complained that he had turned to the BMA for assistance in 1996, but, despite repeated requests from him and the CRE, the BMA Legal Department had not met with him, investigated his claims or given him assistance. Instead, it had dismissed all suggestions of a possible race discrimination claim against the regulatory medical bodies.[99]His case was that he had provided the BMA with a favourable opinion from counsel and with details of allegations that white colleagues in the same post had progressed to Specialist Registrar grade; that his post at Manchester had been described as providing ‘excellent training’ and ‘Royal College approved’; that the post had appeared in Royal College publications as a hospital post providing ‘acceptable training’; that the post had the Royal College recognition stipulated for Registrar posts; that there was no requirement in the Orange Guide for a Registrar post to have distinct SAC approval, the only requirement being for a career Registrar appointment to be through open competition; and that Dr Platt had indicated that he was prepared to accept one year of Mr Chaudhary’s training.[100]The ET (chaired by Miss Woolley) gave judgment on liability in the BMA proceedings on 24 September 2001 after hearing evidence for 15 days. The tribunal rejected the claim for direct discrimination, but upheld the claim for indirect discrimination. We will come to the basis of that decision in due course.[101]On 19 June 2002 the ET gave judgment in the remedies hearing and awarded Mr Chaudhary £814,877.41.[102]On 24 March 2004, the EAT dismissed the BMA’s appeal after a four day hearing and for reasons running to 159 pages, but gave permission to appeal to this court on some grounds.[103]On 27 April 2004, the Creed decision was given by the ET in the Manchester proceedings, which had lasted 15 days. Mr Chaudhary’s claims of vicarious liability for race discrimination against the Secretary of State for Health were dismissed. In that case, Mr Chaudhary produced evidence that two doctors had been granted transition to the new training grade by the postgraduate dean for the North West region despite the fact that they had not occupied registrar posts approved by the relevant SAC. The ET held that these doctors could not be relied on as comparators because Mr Chaudhary had alleged direct discrimination by Dr Platt and he had had nothing to do with the decisions of the postgraduate dean for the North West. Mr Chaudhary had failed to show that any doctor had been treated differently by Dr Platt in the Wessex region. He had also failed to show that a white doctor would have been treated differently. So far as indirect discrimination was concerned, Mr Chaudhary had failed to show that the requirement that a doctor should show that he had occupied a registrar post approved by the SAC had had any disparate impact on doctors of his racial group. It should be noted that eventually the BMA had supported and funded the unsuccessful Manchester proceedings against Dr Platt and the Secretary of State for Health. This support and funding included the retainer of solicitors and leading and junior counsel.[104]On 6 May 2004, the BMA applied to the ET for a review of the remedies decision in the BMA proceedings in the light of the Creed decision and for an extension of time for the review. The application was made on the basis that Mr Chaudhary had now had his opportunity to bring race discrimination proceedings in respect of Dr Platt’s decision refusing entry to the Specialist Registrar grade and had lost. On 17 May 2004, the BMA asked the tribunal chairman to postpone determination of the review application until after the Court of Appeal had decided whether to grant permission to adduce fresh evidence in the BMA appeal. On 9 June 2004 the ET chairman (Miss Woolley) rejected the application for an adjournment and for a review on the ground that there was no prospect of success for the application for a review. It was her view that the failure of the claims and the findings of the Creed tribunal could not replace the necessary speculation at the remedies hearing with certainty. The decision on review contained this paragraph:
“6. The decision of the Tribunal in this case clearly was that the applicant lost the chance to have the respondents’ support at a much earlier stage of the events to seek evidence, to put arguments to the relevant authorities and take proceedings in the Tribunal within the normal time limits if applicable. We found that the applicant lost the chance of doing all those things. The existence of a mistake by the postgraduate dean in Manchester which meant that two people had been allowed transition to the Register, although not relevant or probative in a Tribunal claim, might well have been one matter which would have weighed in his favour in so far as the authorities had a discretion. We also found that the claim was not hopeless with careful preparation in 1996. That careful preparation had not been done. None of the proceedings existing at the date of the remedies hearing which have now failed could test that proposition properly or at all.”
[105]On 4 October 2005 the Employment Appeal Tribunal (HHJ Peter Clark presiding) dismissed Mr Chaudhary’s appeal against the Creed decision.[106]The BMA appeal had originally been listed for hearing by the Court of Appeal in October 2005, but the hearing was adjourned to enable the appeal against the Creed decision to catch up with the BMA appeal, so that the hearing of the two could be listed together. Some of the points on this appeal stem from the unfortunate fact that the hearings of the cases in the ET did not take place in the order that was best suited to the determination of Mr Chaudhary’s claims. It would, of course, have been preferable for his claims against the medical bodies in the Manchester proceedings to have been heard and decided before his claims in the BMA proceedings. As matters have turned out, the Court of Appeal is the first body to have heard the different proceedings together. This has placed the court in a better position than anyone else so far to gain an informed and balanced perspective of Mr Chaudhary’s long and complex litigation.[107]On 17 December 2005, Mr Chaudhary’s application for permission to appeal against the Creed decision and the BMA’s appeal in the BMA proceedings were ordered to be listed for hearing at the same time. The BMA obtained permission to appeal on the grounds which had been refused by the EAT and permission to amend the grounds of appeal in order to take points based on the Creed decision. Permission was sought by the BMA, which was opposed, to adduce “fresh evidence” or something akin to fresh evidence, in the form of the Creed decision. Mr Chaudhary was also granted permission to cross-appeal and to serve a respondent’s notice out of time.[108]As explained earlier and in the judgment of this court on the permission application, permission to appeal against the Creed decision was refused.[109]At the end of nine years of litigation the present position may be summarised in this way. Mr Chaudhary failed in the Southampton proceedings, the STA tribunal proceedings and the Manchester proceedings for race discrimination and victimisation (in which in the end he was supported by the BMA) and also in his judicial review application against the STA. He has succeeded in the ET and in the EAT in his claims against the BMA proceedings for very substantial damages for race discrimination and victimisation suffered by him in consequence of its failure to support him in the claims for race discrimination and victimisation against others which, in the event, have all failed.[110]Before embarking on the detailed grounds of appeal we emphasise that we have well in mind the importance of this case both to Mr Chaudhary and to the BMA. Their cases have been very fully presented by their legal teams. We are grateful to them for their careful and expert assistance in a difficult case. Their courtesy and objectivity served the best interests of their clients and the administration of justice.

THE LEGAL FRAMEWORK

[111]We now turn to the principal statutory provisions for the legal framework of Mr Chaudhary’s claims against the BMA.[112]The 1976 Act imposes liability for both direct and indirect race discrimination. We refer to the statutory provisions in their unamended form, as they were in force at the relevant time. (With effect from 26 July 2003 the 1976 Act was amended by the insertion of subsections 1(1A) to (1C) and other subsections in order to give effect to the EC Race Directive 2000/43/EC. The alleged acts of discrimination in this case took place before the amendments came into force.)[113]Section 1(1) provides:
“(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if: (a) on racial grounds he treats or would treat that other less favourably than he treats or would treat other persons; or (b) he applies to [another person] a requirement or condition which he 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 is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which is not justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it.” (a) on racial grounds he treats or would treat that other less favourably than he treats or would treat other persons; or (b) he applies to [another person] a requirement or condition which he 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 is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which is not justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it.”
[114]So far as relevant, Section 2(1) of the Act provides:
“A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably that in those circumstances he treats or would treat other persons and does so by reason that the person victimised has---” --- (d) alleged that the discriminator … has committed an act which, (whether or not the allegations so states) would amount to a contravention of this Act”
[115]Section 3(4) is also relevant to Mr Chaudhary’s claims:
“A comparison of the case of a person of a particular racial group with a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
[116]The BMA accepts that it is a body falling within section 11 of the 1976 Act.

(a) of the 1976 Act:

“(1) This section applies to an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists; (2) [not material] (3) It is unlawful for an organisation to which this section applies, in the case of a person who is a member of that organisation, to discriminate against him- (a) in the way that it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; (b) [not material] or (c) by subjecting him to any other detriment.” (2) [not material] (3) It is unlawful for an organisation to which this section applies, in the case of a person who is a member of that organisation, to discriminate against him- (a) in the way that it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; (b) [not material] or (c) by subjecting him to any other detriment.”
[117]Section 57(3) relates to the award of damages in cases of indirect discrimination. It provides :
“As regards an unlawful act of discrimination falling within section 1(1)(b), no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on racial grounds.”

THE EMPLOYMENT TRIBUNAL DECISION

[118]In outline, the tribunal reached the following conclusions.(1) Direct discrimination. The BMA did not directly discriminate against Mr Chaudhary on racial grounds by not assisting him in making his claims of race discrimination against the regulatory medical bodies. Mr Chaudhary cross-appeals this finding in the event that the BMA’s appeal on indirect discrimination succeeds.(2) Indirect discrimination. The BMA was liable for indirect discrimination. It had applied a requirement or condition that, in order to be supported in claims of race discrimination, a member of the BMA had not to be alleging race discrimination by a Royal College, a member of the SAC of a Royal College, a Postgraduate Dean, or the STA. The tribunal found that a considerably smaller number of Asian members of the BMA could comply with that requirement than others not in that group and that Mr Chaudhary could not comply. Four decisions mentioned in the above chronology were, it was held, tainted by indirect race discrimination: in December 1997 the BMA refused to support his claim; in June 1998 the BMA failed to support his claim after reconsideration of the matter in the light of counsel’s opinion; in February 1999 the BMA refused to support either of his ET cases; and on 2 December 1999 the Steering Group set up by the BMA decided not to support his appeal to the STA Appeal Panel.(3) Victimisation. The BMA had victimised Mr Chaudhary by refusing to reconsider whether his Southampton proceedings against the regulatory medical bodies were worthy of support by it. It had refused to reconsider because Mr Chaudhary had made allegations of race discrimination against the BMA for not supporting his discrimination claims against others. This refers to Mr Chaudhary’s solicitor’s letter of 1 February 1999 containing an implicit threat of proceedings for race discrimination against the BMA (see paragraph 84 above).(4) Time limits. Although all but one of the decisions complained of were outside the 3 month period preceding the issue of the proceedings on 1 March 2000, the ET held that all the decisions together constituted ‘an act extending over a period’ and were therefore in time: section 68(7)(b) of the 1976 Act.[119]The tribunal’s crucial findings on direct and indirect discrimination are in the following passages. First, at paragraph 123, there is an important passage in which the ET is critical of Mr Quigley’s consideration of Mr Chaudhary’s case. “123. Mr Quigley left the respondents’ employment in May 2000 and in giving his evidence he had been able to refresh his memory by reading through a file of documents. We gave due allowance for the lapse of time in judging his evidence, but we found his evidence about the conclusions that he came to, to be contradictory in some respects and incredible in other respects.”[120]This criticism of Mr Quigley in paragraph 123 is consistent with earlier comments it had made upon his evidence at paragraph 55 of the decision where it had discussed his attitude to Mr Chaudhary’s case in June 1998, at the time when Mr Panton’s opinion had been provided. Mr Quigley had claimed that he had discussed the opinion with other members of his department, but none of them could understand how what was being said could amount to a good claim of race discrimination. The ET said that, when Mr Quigley had been asked about this in evidence, he had merely repeated that the Manchester post had not been recognised and that therefore there could be no claim for race discrimination. The ET was critical of him because (it said) sometimes Mr Quigley said that there was no evidence of race discrimination, sometimes he said the evidence was weak and sometimes he said that it had not been produced to the legal department. The effect of the ET’s criticism of Mr Quigley was that they found it incredible that anyone who had genuinely applied his mind to Mr Chaudhary’s case would not have understood that he had a case worthy of support by the BMA.[121]The ET commented on Ms Anstey’s contribution to the process, but appeared to think that it was not of great importance. Then at paragraph 124, it continued:
“124. Once Mr Quigley took over the case the applicant had however gradually become more and more aware of the national position and the legal possibilities. He started to point the respondents to the possibility of race discrimination. He did so at a much earlier stage than Mr Quigley remembered at some stages of his evidence. He first suggested the possibility clearly in March 1997. At that time and thereafter we find there was no real consideration of that by the legal department or Mr Quigley when he came into the case. He brushed it aside. There was throughout thereafter, we find, a refusal by the respondents’ legal department to consider the strengths of the applicant’s case and no analysis of it. There was a refusal to acknowledge that there could be a claim of any sort. There was more than one opportunity to reconsider the position with a new factor. It seems to us that legal advice from another source to the contrary was something that should cause the respondents to reconsider their position. 126. It seems to us that the facts suggest something more than incompetence. A refusal to consider the merits of a claim, even in the face of Counsel’s opinion and in consultation with Mr Hughes and others, in our view point away from individual incompetence. Throughout the course of events which we have dealt with, the legal department’s response was that they did not understand what the discrimination case was or what evidence of discrimination was being put before them. They never evaluated the applicant’s evidence to decide whether it was a weak case. They merely said that there was no case. When Mr Quigley was faxed with an explanation and evaluation of a case of race discrimination by the Postgraduate Dean and/or the Royal College, he sought to discredit the giver of the opinion rather than research the evidence or evaluate the strength of the case for himself. We find that a most significant and striking fact. 127. At the CRE meeting in June 1999 it was pointed out expressly to members of the screening group, including Mr Hughes, that the way the Royal College applied their criteria should be looked at. The screening group, however, continued to apply the same principles which they had already decided to the decisions which included the principle that they could not challenge the assessment by the Royal College of the training which had been undertaken. No steps were taken to assist members to present a claim of race discrimination in their STA appeal. Allegations of race discrimination in decisions of the Royal Colleges inevitably of course, challenge the assessment of the Royal College in one sense, although it was a challenge on limited grounds. Such a challenge did not involve the expertise considered by Dr Hawker to be beyond the screening group or the respondents. 128 On the basis of those facts we draw the inference that Mr Quigley and the legal department were not prepared to contemplate a case of race discrimination against a Postgraduate Dean, the Royal College or the STA. They did recognise and support cases where race discrimination was alleged against an NHS Trust or health authority but we conclude that they were not prepared to consider a case against a Postgraduate Dean, a Royal College or the STA.”
[122]The ET then considered whether the various refusals of assistance amounted to direct discrimination on racial grounds. At paragraph 130, it concluded that they did not because it accepted that the BMA had supported many of its Asian and ethnic minority members in race discrimination claims. That was a powerful argument against drawing an inference that the refusals had been on racial grounds.[123]Then at paragraph 131, the ET set out its conclusion on indirect discrimination:
“131.The applicant submitted in the alternative (ie to the submissions on direct discrimination) that the respondent’s (the BMA) attitude was that the Postgraduate Dean, the Royal College and the STA could not be discriminating on racial grounds in making their decisions and that that was applying a requirement or condition to race claims by members that in order to achieve support the claim should not allege race discrimination against those bodies. We have concluded that the respondents refused to recognise the possibility that the Royal Colleges, the STA, the Postgraduate Dean or the SACs might discriminate on racial grounds. We do find that that attitude meant that anyone producing that sort of claim did not have it evaluated or considered in reality. We come to the conclusion that the respondents have therefore imposed a requirement or condition on claims from members that in order to be considered they should not include a claim that the Royal Colleges, Postgraduate Dean or the STA have discriminated on racial grounds in applying their criteria and making their decisions. We think it may well not be a deliberate policy but a result of the attitude of mind of those who had to make decisions on behalf of the respondents. It did persist despite indications to them by others that race discrimination could exist in that form.”
THE APPEAL AND CROSS APPEAL Perversity and Inadequacy of Reasons

Submissions

[124]Mr Cavanagh QC for the BMA submitted that the tribunal’s finding of a requirement or condition applied by the BMA was unsupported by the evidence and was perverse. The decision was also inadequately reasoned. No reasonable tribunal, properly directing itself as to the evidence and the law, could have inferred that the BMA had applied a requirement or condition that it would not support race discrimination claims against certain regulatory medical bodies. There was no point in remitting the matter to a fresh employment tribunal for re-hearing as the only conclusion open to the tribunal would be that there had been no indirect race discrimination by the BMA.[125]The essential point made on behalf of the BMA on inadequacy of reasons was that nowhere in the tribunal’s decision did it ‘get to grips’ with the central issues in the case. Mr Chaudhary’s case against the BMA was that he had a good case which the BMA failed to recognise, investigate and support. The BMA’s case was that they did not accept that he had a case with reasonable prospects of success. Therefore they could not, consistently with their usual policy, offer support. Mr Cavanagh submitted that, reading through the whole ET decision, one never discovers what Mr Chaudhary thought his case on race discrimination was. Nor does the ET ever say what the case was and why it was good. Nor, submitted Mr Cavanagh, was there any analysis of the evidence that was available to the BMA upon which to take their decisions or what evidence would have been available if the BMA had undertaken appropriate investigations. Without that analysis, it was impossible to understand why the ET could logically reject the BMA’s explanation for its refusal to support.[126]Mr Cavanagh criticised the tribunal for not providing an adequate explanation for drawing the inference that the BMA was not prepared to contemplate support for a race discrimination claim against the regulatory bodies. It could only draw such an inference if it had sound reasons for rejecting the BMA’s reasons for refusing support. In the absence of adequate reasoning by the tribunal on these aspects of the case it was difficult to see how the tribunal could properly have concluded that the BMA’s legal department refused to consider the strengths of Mr Chaudhary’s claims for race discrimination against the named medical bodies, or refused to acknowledge that there could be such a claim, or approached the question of his claims with a closed mind.[127]In view of the conclusions that we have reached on the issue of perversity, there is no purpose in us dealing with the submissions on adequacy of reasons separately in the depth of detail with which it was argued. In saying this we do not, of course, underestimate the importance of properly and logically reasoned decisions in discrimination cases: see Anya v. University of Oxford[2001] EWCA Civ 405; [2001] ICR 847 at paragraphs 12, 14,19 and 20 to 26. However, in this case, we consider that the reasons for the decision are sufficiently clear for us to be able to deal with the submissions on perversity. We will say no more about the inadequacy of the reasons.[128]Mr Cavanagh submitted that on any proper analysis of the facts, it is immediately apparent that there was no evidence that Mr Chaudhary had a good case on race discrimination against any of the regulatory bodies or persons. Thus it was irrational for the ET to reject the BMA’s claim that they believed that the decision to refuse him transition was correct and justified and was unrelated to race. Similarly, in respect of the STA decision, if the facts were analysed, it would immediately have been seen that it was irrational for the ET to reject the BMA’s view that the STA had been justified in refusing Mr Chaudhary’s application for entry to the specialist register (at the bare minimum because he had not passed the Intercollegiate Examination). The BMA had been justified in refusing to support his appeal to the STA Appeal Panel.[129]Mr Cavanagh relied on a passage in the judgment of the EAT (paragraph 117) as a correct statement of the principles to be applied to the process of drawing inferences of indirect discrimination: there should be a sound factual basis for drawing the inference; the tribunal’s reasoning process should be adequately explained and the tribunal should not be too quick to draw an inference of indirectly discriminatory conduct when there was an obvious inference to be drawn from the facts that the treatment of the complainant was due to some other non-discriminatory reason.[130]Mr Cavanagh submitted that the BMA had advanced sufficient reasons for not supporting Mr Chaudhary’s claims of race discrimination against the Postgraduate Dean and others. The tribunal had heard oral evidence, but most of this was necessarily based on the contemporaneous documents which charted the history of events and supported the BMA’s explanation for its decisions. Mr Cavanagh said that the non-discriminatory explanation in the BMA’s evidence for refusing to give Mr Chaudhary support was a genuine and obvious explanation of its conduct and was reasonable. A reasonable tribunal would have accepted it in the absence of cogent evidence to the contrary of the existence of a racially discriminatory explanation for the refusal.[131]Mr Cavanagh took the court through the documentary evidence (which was undisputed) to lay the foundation for his submission on perversity. He submitted that this evidence showed that the BMA’s legal department had considered Mr Chaudhary’s claims that he had suffered race discrimination and considered that they had no prospect of success. That being so, there were no reasonable grounds on which the ET could have inferred that the BMA was not prepared to contemplate supporting a race discrimination claim against the relevant medical bodies.[132]He submitted also that, on its face, the requirement or condition inferred by the tribunal made little or no sense: in effect, the BMA would support race discrimination claims against some bodies, such as NHS trusts and health authorities, but not against the very bodies against which Mr Chaudhary wished to claim, namely the Royal Colleges, the STA, the SACs and the Postgraduate Dean. Such an artificial requirement or condition was not explicable by the tribunal’s inference of ‘a closed mind’ or of ‘an attitude of mind’ on the part of the BMA to supporting race discrimination claims brought by its members.[133]Mr Cavanagh accepted that, as laid down in decisions of this court, it was difficult to overturn an employment tribunal decision on the ground of perversity: Yeboah v. Crofton [2002] EWCA Civ 794; [2002] IRLR 634 at paragraph 12. However, he submitted that this case was one of those rare cases in which this court would be driven to conclude that the decision of the ET had been perverse.[134]Mr Hendy rightly emphasised that an appellate body will only overturn a tribunal’s decision on this ground in relatively rare cases. He submitted that this is not such a case. He argued that the tribunal applied the relevant legal principles and drew inferences from the totality of the evidence, having due regard to the demeanour of the witnesses who gave oral evidence.[135]Mr Hendy also took the court to the documentary and oral evidence before the tribunal and referred to in its decision, which, he submitted, demonstrated the soundness of the tribunal’s conclusions on indirect discrimination. Among other points, he drew attention to failure of the BMA Legal Department to meet Mr Chaudhary to discuss his allegation of race discrimination, the lack of consideration of the independent advice taken by Mr Chaudhary, the lack of guidance from the BMA to their Industrial Relations Officers as to what evidence should be produced for a race discrimination claim before the STA Appeal Panel, the failure of the BMA to assist other members with race discrimination claims, the substantial criticisms of the oral evidence of Mr Quigley and the extent to which Mr Chaudhary had co-operated with the BMA’s requests for clarification. He also pointed out that the BMA had not adduced any evidence that a white doctor had ever alleged race discrimination, while many Asian doctors had.[136]He drew attention to the ET’s findings that the BMA had continuously submitted “inconsistent” and “incredible” reasons for not supporting Mr Chaudhary (paras 151-2); that the facts suggested “something more than incompetence”; that “alternative explanations (for non-support) appear to have evolved as the case progressed”; that the BMA ought to have investigated matters; that its failure to do so in the circumstances of the case gave rise to the inferences of indirect discrimination that were drawn (see paras 133-144 and 151). Mr Hendy submitted that the ET had been entitled to make and act upon such findings and this court should not interfere with them.

Discussion

[137]It is an unusual feature of this case that the ET was not prepared to hold that the BMA’s refusal to support Mr Chaudhary had been based on racial grounds (viz there had been no direct discrimination) but was prepared to infer indirect discrimination by the imposition of a requirement or condition that the BMA would not support race discrimination claims against certain regulatory medical bodies. It seems to us that there is an element of paradox, if not frank inconsistency, in these two holdings. For that reason, it is particularly necessary to examine the process of reasoning (or lack of it) by which the ET reached its essential conclusions.[138]At the heart of the ET’s reasoning was its rejection of the validity of the BMA’s reasons for refusing to support Mr Chaudhary’s claims. It appears to us from the passages of the decision which we have cited above that Mr Cavanagh’s main complaint is made out; that the tribunal never got to grips with the issues and never analysed the evidence to see whether the BMA’s explanation for refusing support was valid and reasonable and therefore should be accepted. At paragraphs 124 and 126 it made a number of general observations about the actions and attitudes of the BMA - not all of which are factually correct. It found that Mr Quigley and other members of the Legal Department did not take the suggestion of race discrimination seriously; they brushed it aside. However, it seems to us that the ET did not ask or answer the crucial question: did Mr Chaudhary have a case on race discrimination (against any of the proposed respondents) that was worthy of BMA support? Indeed, the ET seems to have assumed that he did have a good case, although it never says what it was, how it was to be put, what evidence there was to support it or what evidence there would have been to support it if the BMA had investigated matters as they could and should have done. In our view, without such analysis, the tribunal was not in a position to reject the BMA’s explanation for its refusal or to draw the inference that its collective mind was subconsciously closed to the possibility of bringing a race discrimination claim against the medical authorities.[139]As the ET did not carry out that analysis, we must do it. In order to do so, we begin by summarising the salient facts which appear from the ET’s decision and from the undisputed documents before the tribunal. We mention first two background facts which relate to all the claims which Mr Chaudhary wished to bring. These are first that the BMA regularly supports and brings race discrimination complaints on behalf of its members. Second, the BMA normally supports a case only if it has a ‘better than evens’ chance of success or has reasonable prospects of success (which the ET thought amounted to the same thing). The BMA will also support a case which raises issues of general importance to the profession. As we understand it, the BMA will support such cases even though they do not reach the usual threshold of having a better than evens chance of success.[140]We think that, in order to analyse the BMA’s refusal decisions, each one must be considered separately; it is not sufficient to look at the reasons globally, as the ET did. We begin with the refusal to support the Southampton proceedings. The following facts are relevant.[141]For a considerable period the BMA gave support to Mr Chaudhary’s applications for automatic transition to the Specialist Registrar grade and made representations on his behalf to the Postgraduate Dean. The BMA helped to challenge the Postgraduate Dean’s view that Mr Chaudhary could not be transferred to the new grade because his post had not been approved for higher specialist training by the SAC for urology. Mr Chaudhary’s case was taken up first by Mr Coley, the Industrial Relations Officer, and then by the BMA’s Junior Doctors’ Committee. The BMA represented Mr Chaudhary at the ‘appeal’ before the Postgraduate Dean’s panel and wrote letters on his behalf. This evidence shows that the BMA made considerable efforts to help Mr Chaudhary to obtain transition.[142]As part of that effort, the BMA sought information about whether the Postgraduate Dean had treated Mr Chaudhary in accordance with the rules as laid down in the Orange Guide. The information obtained suggested that he had been correctly treated and that the expression ‘Royal College Approved’ in the Orange Guide meant, in the case of urologists, approved by the Royal College’s SAC for urology. The BMA found that the Postgraduate Dean’s view was shared by his Regional Adviser, Mr Bramble, and by the consultants at Manchester, Mr Garland and Mr Costello. It was confirmed by Professor Mundy and, on specific inquiry by the BMA, by Professor Temple’s letter of 1 August 1997. In short, the BMA had gone ‘to the top’ in its quest to establish whether Mr Chaudhary had been treated in accordance with the rules. We mention in passing that the only additional step that could have been taken to test the ‘legality’ of his treatment was to take proceedings for judicial review, but no one has suggested that BMA ought to have done that.[143]There was never any doubt that the Manchester post had not been approved for higher specialist training by the SAC. Mr Chaudhary confirmed that he was told, 2 years into his employment in Manchester, that his post had not been recognised for that purpose. There was no doubt or dispute that the Royal College of Surgeons had decided that approval for higher specialist training for urologists meant approval by the SAC for urologists. There was some uncertainty as to whether the expression ‘Royal College Approved’ in the Orange Guide could properly be construed as meaning ‘approved for higher specialist training in the manner determined by the relevant Royal College’. It seems to us that it could not be said to be unreasonable for the BMA to believe that it could and should be so construed. After all, there does not on the face of it seem to be any good reason why a Royal College should not delegate to a specialist committee the task of granting or withholding approval.[144]The ET was plainly troubled by the fact that Mr Chaudhary had quite reasonably understood from the Manchester advertisement that his post was ‘Royal College approved’ and also that the Royal College had listed the post as providing ‘acceptable training’ in urology. What did that mean? What was the post approved for? The BMA had taken the view that Mr Chaudhary might have been misled into thinking that his post was approved for higher specialist training; that is why it investigated the possibility of bringing a claim in misrepresentation. However, Mr Quigley’s view, clearly seen from the internal correspondence, was that, what was relevant to Mr Chaudhary’s treatment was the fact of whether his registrar post had been approved for higher specialist training, not whether someone had (mistakenly) said that it was. The ET was critical of Mr Quigley for persisting in the belief that Mr Chaudhary had been treated in accordance with the rules. It did not explain why it was critical of him in that respect. It did not analyse the rules in an attempt to see whether it could be said that the requirement of SAC approval had been unlawful in the sense of ‘ultra vires’. If that analysis had been carried out, we do not think that conclusion could have been reached. We consider that the ET’s criticism of Mr Quigley for persisting in his belief that Mr Chaudhary had been treated in accordance with the rules was unfounded and perverse.[145]Mr Quigley’s belief that the Postgraduate Dean had acted in accordance with the rules was the foundation for his attitude towards Mr Chaudhary’s claim that he had been discriminated against. Mr Quigley’s viewpoint was that, if there was a perfectly reasonable explanation for the Postgraduate Dean’s decision (as there was in his view), one did not suspect racial discrimination. Although, in December 1997, Mr Chaudhary suggested for the first time that the Postgraduate Dean had discriminated against him, he did not explain why he thought that was so. Also, when Mr Chaudhary set out the basis of his complaint in his letter to Mr Hobart of the JDC in January 1998, (see paragraph 56) he did not explain why he thought that he had been discriminated against or how he was going to put his case in the Southampton proceedings, which had just been commenced. At no time did Mr Chaudhary provide to the BMA the name of any doctor who had supposedly been treated differently from him by being granted transition to the new training grade even though his registrar post had not been SAC approved. Such enquiries as the Junior Doctors’ Committee had made suggested that that rule was being applied consistently. It is now known (from the Creed proceedings) that Mr Chaudhary did discover that two doctors in the North West deanery had been given transition although their registrar posts had not been SAC approved but, if Mr Chaudhary knew of that in the period 1996 to 1999, he did not tell the BMA.[146]When in May 1998 Mr Quigley asked the CRE to say what Mr Chaudhary’s case was on race discrimination, they did not reply.[147]Although Mr Panton of counsel advised that Mr Chaudhary’s claim against the Postgraduate Dean was likely to succeed, he did not explain the basis of that advice. We note that the ET did not analyse counsel’s advice; they took it at face value. Mr Quigley, on the other hand, said that, having read the advice he still could not see that there was a good case. The ET appears to have found that incredible. We do not find it incredible. Having read the advice, we ourselves could not tell what Mr Chaudhary’s good case was or why Mr Panton thought it would succeed.[148]Accordingly, despite Mr Chaudhary’s allegation of race discrimination, Mr Quigley did not learn anything which might have dislodged his reasonable belief that Mr Chaudhary had been treated properly. In short, Mr Chaudhary’s allegation remained just that, an unsubstantiated allegation. We consider that the ET’s criticism of Mr Quigley and the BMA for supposedly having a closed mind to the merits of Mr Chaudhary’s race discrimination claim against the Postgraduate Dean was unfounded and perverse.[149]Mr Hendy had made to us the fair point that it was not for Mr Chaudhary to identify precisely what his claim was. He was not a lawyer. He was an urologist, who turned to the BMA and its legal department to establish whether there were legal arguments on which he could rely. It was for the BMA to take reasonable steps to investigate his grievance and identify whether he had a legal claim.[150]The ET criticised the BMA for not investigating the possibility of a race discrimination claim at an earlier stage. It held (wrongly) that, as early as March 1997, Mr Chaudhary had raised with the BMA the possibility that the Postgraduate Dean had discriminated against him. In fact, Mr Chaudhary first mentioned race discrimination in March 1997 but this related to the possibility that there had been race discrimination in 1991 at the time of his Manchester appointment. He did not raise race discrimination as an issue in connection with the Postgraduate Dean’s decision until 12 December 1997, by which time the potential claim was well out of time. Until the BMA received that letter, it was unaware that Mr Chaudhary wished to allege race discrimination in respect of Dr Platt’s refusal to grant him transition. It thought that he was still seeking support for a claim in respect of the events of 1991. After 12 December, the BMA realised what Mr Chaudhary wanted, but it is clear from the internal correspondence that the Legal Department thought that such a claim had no merit. They never changed that view.[151]We do not think that the ET was justified in criticising the BMA for failing to investigate a potential race discrimination claim against Dr Platt during 1996. No one had suggested that Dr Platt’s decision had been tainted by discrimination; everything pointed to the fact that Dr Platt had been sympathetic to Mr Chaudhary’s predicament and had been reluctant to refuse him transition. In any event, the ET never explained what evidence of value would have been discovered if the BMA had investigated the possibility of race discrimination as soon as Dr Platt had rejected Mr Chaudhary’s appeal There was no evidence of what, of value, would have been discovered. It is apparent that, even by the date of the remedies hearing in June 2002, the ET did not understand how Mr Chaudhary’s case against the Postgraduate Dean could be run. When speculating about the prospects of success which such a claim might have had, it was clear that they did not know how the allegation of race discrimination was going to be put in the Manchester proceedings. It is clear that no evidence of different treatment had, even then, been advanced.[152]It could now be said that the BMA had failed to discover that two doctors in the North West region had been given transition even though they had not occupied SAC approved posts. That evidence would not have assisted Mr Chaudhary in his claim against Dr Platt, although it might have led to the formulation of a different claim. However, that is speculation. Could it really be said that the fact that the BMA had not investigated the circumstances of every single grant of transition in the country demonstrated an unwillingness to support race discrimination claims against the medical authorities? We think not.[153]In our view, when the established facts are analysed, it can be clearly seen that the BMA had sound reasons for believing that Mr Chaudhary had been dealt with according to the rules and that there was no basis for suspecting that the decision had been tainted by either direct or indirect race discrimination. In the absence of any evidence of any difference in treatment between Mr Chaudhary and another doctor, that was wholly reasonable. Some difference of treatment is required before any inference of racial discrimination can arise and before any burden passes to the respondent to show that his actions had not been ‘on racial grounds’. It is not enough to say merely that it looks as though Mr Chaudhary has been treated unfairly and, as he is Asian, the explanation must be race discrimination. It is fair to say that the fact that Dr Chaudhary, an Asian doctor, appeared to have been treated unfairly might well, we accept, give rise to a duty to investigate the possibility that he has been discriminated against; but if enquiries reveal that he has been treated according to the rules which apply equally to everyone and have been applied equally to everyone, there would be no case on direct discrimination.[154]As for the suggestion that the requirement of SAC approval was indirectly discriminatory, because its application had a greater adverse impact on doctors from overseas than from the UK and that the discrimination became direct when Dr Platt applied the requirement to him, we can see no basis for that suggestion either in fact or law. The position was that, although Mr Chaudhary would have been regarded as a visiting registrar while he was working in the Manchester post, by 1996, when he was seeking transition, he fell to be treated as having been a career registrar, because he had in the meantime been granted indefinite leave to remain in the UK. He was therefore in exactly the same position as a doctor born and qualified in the UK. His problem was not that he came from overseas but was that his career registrar post had not been recognised for higher specialist training (despite his understanding to the contrary). The requirement of SAC approval was the reason for the refusal of entry to the new grade. The arguments used by Mr Chaudhary based on the advertisement for the post and the construction of the criteria in the Orange Guide may have provided grounds for challenging, for example by way of judicial review, the lawfulness of imposing the requirement of SAC approval, but there were no grounds for alleging that the requirement was either imposed on racial grounds or that it constituted indirect race discrimination of Mr Chaudhary. The requirement would have applied equally to a white doctor in the Manchester post.[155]In our view, once the facts are analysed, it is seen that the BMA’s refusal to support Mr Chaudhary in the Southampton proceedings was entirely reasonable. The claim did not have reasonable prospects of success, on the merits, quite apart from the obvious limitation problem. The fact that counsel thought the claim was good and that the limitation problem could be overcome does not mean that the BMA was obliged to accept those views, particularly as the basis for those views was not adequately explained. We consider the BMA’s refusal to support the Southampton proceedings was entirely reasonable and in accordance with the BMA’s policy of supporting on cases with reasonable prospects of success.[156]We turn to the next occasion on which the BMA refused Mr Chaudhary support. This followed the request advanced in February 1999 by RJW for the BMA to reconsider its decision about the Southampton proceedings and also to give its support to the Manchester proceedings. The BMA declined to do either. We will have to return to the BMA’s response to this letter when we come to consider Mr Chaudhary’s claim for victimisation. However, at the moment, we consider it only as part of the BMA’s supposedly closed mind towards any claim of racial discrimination against the medical authorities. The ET did not give separate consideration to the reasonableness of this decision of February 1999. We must do so.[157]In so far as RJW’s request related to a reconsideration of support for the Southampton proceedings, we consider that the BMA acted properly and reasonably in refusing to change its mind. No new information had been provided. Mr Franey did suggest that the case raised points of general importance to the profession but, if the BMA’s view was (as we think it was ) that Mr Chaudhary’s case against Dr Platt had no merit, it would be justified in refusing support even though the case might potentially raise general issues.[158]The Manchester proceedings were, in large part, based on the same facts as the Southampton proceedings, namely the Postgraduate Dean’s refusal to admit Mr Chaudhary to the new training grade. The claim of race discrimination had been given a new lease of life in that, in December 1998, Dr Platt had reconsidered his original refusal decision or 1996/97 but had refused to change his mind. Mr Chaudhary was to allege (successfully) that this was a fresh decision which started time running again for limitation purposes. However, as we have observed, the underlying merits of the case were no better; no further information had been provided to the BMA which might found a case of different treatment. When Mr Quigley asked RJW their views on the merits of the claim in the Southampton proceedings (a request which, if answered, might have been expected to contain an explanation of the basis on which the claim was to be put), Mr Chaudhary directed his solicitors not to answer. So far as the claim in relation to Dr Platt is concerned, we think that the BMA was entirely justified in declining to offer support.[159]We note that, eventually, the BMA did provide support for Mr Chaudhary’s allegation against the Postgraduate Dean in the Manchester proceedings. It appears that it may have decided to do that at some time after the conclusion of the proceedings against it. However, the ET had to consider the reasonableness of the BMA’s refusal at the time the decision was taken. As we have said, the ET did not consider this decision separately; it rolled it up in its general view that the BMA had a closed mind towards all Mr Chaudhary’s discrimination claims. On our analysis, the BMA’s refusal to support the claim against Dr Platt in the Manchester proceedings was entirely reasonable.[160]The Manchester proceedings also included an allegation of race discrimination against the STA. As we have noted, the BMA received advice from counsel that an ET did not have jurisdiction to entertain discrimination claims against the STA because the disappointed party had a right of appeal to the STA itself. That advice was later confirmed by the decision of an ET. Section 54(2) of the Race Relations Act 1976 provides that subsection 1 (which creates the right to complain of race discrimination to an ET) does not apply to a complaint about an act in respect of which ‘an appeal or proceedings in the nature of an appeal may be brought under any enactment’. The regulations governing the operation of the STA provided for an appeal. It appears to us that counsel who had advised the BMA gave correct advice. In those circumstances, it seems to us entirely reasonable that the BMA should refuse to support Mr Chaudhary’s claim against the STA in the Manchester proceedings. We note that, in the event, the claim against the STA was abandoned.[161]We turn to the decision of the STA Screening Group made in December 1999 to refuse to support Mr Chaudhary’s appeal to the STA Appeal Panel. The reasonableness of this decision was not considered separately by the ET. Consideration of it was included in the ET’s overall judgment that the BMA’s mind was closed to the possibility that any of the medical regulatory bodies might discriminate on racial grounds. This global consideration was particularly surprising in that the decision was taken by a Screening Group which consisted mainly of members of the BMA (ie doctors), assisted and advised by BMA employees, including a member of the Legal Department, whereas the other decisions about which complaint was made had been taken solely by the Legal Department.[162]Mr Chaudhary’s grounds of appeal against the STA decision, which were of his own drafting, relied mainly on the quality and extent of his previous training. It complied with the regulations; so he should be admitted to the register. The Screening Committee took the view that the STA decision had been justified and that an appeal on the merits would not succeed. For one thing, Mr Chaudhary had not taken the Intercollegiate examination. The STA regarded that as essential. The BMA had previously taken judicial review proceedings to test the legality of the STA’s insistence on that point. Having lost in those proceedings, it seems to us that the BMA was entirely reasonable in refusing to support Mr Chaudhary’s appeal on the merits. The ET did not deal with this point.[163]Mr Chaudhary also wanted to allege that the STA had discriminated against him on racial grounds. We have noted that his grounds of appeal suggested that his training was the same as that of white doctors and their training had been accepted as sufficient. He did not give any examples, at least to the BMA. The ET was critical of the BMA for its lack of enthusiasm and proactivity in investigating the possibility that the criteria applied by the STA might be indirectly discriminatory against overseas doctors. We have seen that the STA provided statistics which suggested that doctors who had initially qualified on the Indian subcontinent suffered a greater rejection rate than doctors who had qualified in the UK. That might suggest that there was a problem of discrimination, but it by no means demonstrates it. There may have been other reasons why overseas qualifiers had a higher failure rate. Also, the BMA was involved in discussions with the CRE and sought information from the STA. Lord Patel pointed out that the criteria were laid down by regulation and he forcefully denied that decisions were tainted by racial discrimination, either by reference to ethnic origin or place of initial qualification. Of course we recognise that just because a body denies discrimination does not mean that it is not in fact discriminating.[164]We can see why the ET was unimpressed by the BMA’s attitude towards the possibility of discrimination by the STA. We agree that it might have been more proactive in its investigations. However, in our view, that attitude falls a long way short of justifying a conclusion that the BMA was not prepared to support any claim of race discrimination against a collection of medical regulatory bodies which is what it found.[165]In any case, it appears that the attitude that most influenced the ET was Mr Quigley’s attitude towards the claim against the Postgraduate Dean (whether as pursued in the Southampton or Manchester proceedings). We have been driven to the conclusion that the findings of fact on which the ET concluded that the BMA had a closed mind towards those race discrimination cases were made without adequate analysis of the evidence. When the evidence is analysed, the ET’s essential findings of fact are seen to have been without foundation and therefore perverse. Those findings formed the foundation for the inference that the BMA had imposed a condition or requirement upon members that, in order to receive support, they must not allege race discrimination against one of the named medical regulatory authorities. As the findings were perverse, the inference which was drawn from them becomes unsustainable. The result is that the whole basis for the ET’s holding that the BMA had indirectly discriminated against Mr Chaudhary falls to the ground. We observed that the ET’s findings on indirect discrimination seemed contrived and paradoxical. On examination, they have proved unsustainable. The appeal on indirect discrimination must be allowed.

The Cross-Appeal

[166]It is convenient at this stage to deal with the cross-appeal because it is directly dependent upon the ET’s findings on indirect discrimination. Submissions[167]Mr Hendy accepted that Mr Chaudhary could not challenge as perverse the finding of fact that the BMA had not directly discriminated against him. However, he sought to rely on the finding that the BMA had imposed a condition or requirement on members that, in order to receive support, they must not include a claim of race discrimination against the medical regulatory authorities. This condition was not properly to be regarded as a neutral condition, which might have disparate impact on doctors from racial minorities. Rather it should be seen as a manifestation of direct racial discrimination. Only doctors from racial minorities would want to allege racial discrimination against the authorities; therefore the condition had been imposed on racial grounds. Discussion[168]There is very little we can say about this submission. We have held that the ET’s holding about the imposition of a condition or requirement was based upon perverse conclusions, unjustified by the evidence. Therefore the factual foundation on which the cross-appeal was advanced has collapsed. There is no more to be said. The cross-appeal fails.

Victimisation

[169]We turn to the only remaining live issue on liability, victimisation contrary to section 2 of the 1976 Act. We have already set out the provisions of section 2(1)(d). Mr Chaudhary submitted to the ET that, in refusing to reconsider its refusal of support for his race discrimination claims, the BMA had treated him less favourably than it would have treated another person in similar circumstances because he had alleged (in his solicitor’s letter of 1 February 1999) that the BMA might have discriminated against him on racial grounds. The ET accepted that submission. It held that someone who had not made that allegation might have had his request for support reconsidered. We note in passing that the ET did not say that someone who had not made that allegation would probably have had his claim reconsidered, which would, we think, have been the right test to apply.[170]The basis of the ET’s decision appears to have been that the true reason for the refusal to consider the request for support was that the BMA was concerned that racial discrimination proceedings might be brought against it, that it took the view that, at that time, such proceedings would be time-barred and that it set its face against reconsideration of its decision in order that time should not be set running again by a fresh decision. We say that it appears that this was the basis of the decision because the words used are not entirely clear. After saying that the BMA had refused to contemplate that they could be discriminating themselves, the decision continues at paragraph 132:
“They did not take the opportunity to consider the position anew when the applicant’s solicitors wrote to them, even though they gave the impression that they had or that they would be prepared to do so. After that letter, any refusal to support the first case (presumably the Southampton proceedings) was, in our view, by reason of the fact that the applicant complained that they might be discriminating on racial grounds because the respondents’ legal department clearly decided that they should not make a new decision in order to avoid the time limit running anew. In our view, that meant the applicant was treated less favourably in relation to his first case by the decision then made not to support it, than someone who had not alleged that the respondents might be discriminating against him. The latter person might have had his claim reconsidered. ”

Submisssions

[171]Mr Cavanagh submitted that, in the light of those findings, the ET had erred in law in holding that there had been unlawful discrimination against Mr Chaudhary by way of victimisation contrary to section 2, as interpreted by the House of Lords in West Yorkshire Police v. Khan[2001] ICR 1065.[172]In Khan, the House of Lords had held that a chief constable who had declined to provide a reference for a police officer from his force who had earlier presented a complaint of race discrimination against him had not been guilty of victimisation. The chief constable had not refused the reference because the police officer had made the complaint of racial discrimination; he had refused because he wished to preserve his position in those proceedings. At paragraph 31 of the report, Lord Nicholls of Birkenhead said:
“Employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation. This accords with the spirit and purpose of the Act. Moreover, the statute accommodates this approach without any straining of language. An employer who conducts himself in this way is not doing so because of the fact that the complaint has brought discrimination proceedings. He is doing so because, currently and temporarily, he needs to take steps to preserve his position in the outstanding proceedings. Protected act (a) (“by reason that the person victimised has – (a) brought proceedings against the discriminator under this Act) cannot have been intended to prejudice an employer’s proper conduct of his defence, so long as he acts honestly and reasonably. Acting within this limit, he cannot be regarded as discriminating by way of victimisation against the employee who brought the proceedings.”
[173]Mr Cavanagh submitted that that statement of the law, made in connection with protected act (a) was also appropriate in a case under protected act (d), where the person victimised had made an allegation of race discrimination and proceedings were therefore threatened although not yet begun. By analogy with Khan, Mr Cavanagh submitted that here, (on the ET’s findings) the BMA had refused to reconsider its decision on support not because Mr Chaudhary had alleged that the BMA might have discriminated against him but because it wished to avoid making a further decision; if it did so, time would start running again for limitation purposes. The BMA’s actions would not amount to victimisation if the decision had been taken in a bona fide attempt to preserve its position in this threatened litigation. Here, submitted Mr Cavanagh, it had been both honest and reasonable for the BMA to wish to preserve its position in the face of a possible race discrimination claim by Mr Chaudhary.[174]Mr Hendy submitted that the employment tribunal had reached a permissible conclusion based on its findings of fact. The tribunal had criticised the conduct of Mr Quigley. It found that his responses were “inconsistent and contradictory” and criticised his conduct in attempting to convince others within the BMA to take the same line as him in order to protect any time limits. Discussion[175]In our judgment, the employment tribunal erred in law in its finding of victimisation. Following the solicitors’ letter, the BMA was in the position of a potential respondent to a claim by Mr Chaudhary for race discrimination. The decision in respect of which Mr Chaudhary had intimated that he might allege racial discrimination had taken place at about 8 months earlier and, on the face of it, any complaint by Mr Chaudhary was out of time. The BMA’s refusal to reconsider its decision may well have amounted to different treatment of Mr Chaudhary, as the ET found, but that does not mean that it was an act of victimisation. The ET did not consider the report of Khan. If it had done so, it would have had to apply Lord Nicholls’ words to the facts before it. The only conclusion the ET could have come to was that it was honest and reasonable for the BMA to seek to preserve its position in the litigation threatened by Mr Chaudhary. Therefore, the ET would have been driven to the conclusion that the BMA had not refused reconsideration because of the accusation but in order to protect its position. There had been no victimisation.[176]At the hearing of the appeal counsel cited the decision of the majority in the Court of Appeal in St Helens BC v. Derbyshire[2005] EWCA 977;[2006] ICR 90. This was reversed by the House of Lords on 25 April 2007: [2007] UKHL 16. Mr Cavanagh drew this fact to the court’s attention on 1 May 2007. Mr Cavanagh submitted that the reasoning in the opinions in the House of Lords in St Helens BCdid not undermine the arguments of the BMA on its appeal against the finding of victimisation. Indeed, it supported them. Mr Hendy responded with written submissions on this point.[177]In our judgment, the speeches in St Helens BC clarify the interpretation and application of section 4 of the Sex Discrimination Act 1975 which is in similar terms to section 2 of the 1976 Act so as to put beyond question the correctness of the BMA’s original submission that the tribunal erred in law in its finding of victimisation. It is true that the House of Lords did not support Lord Nicholls’ formulation of the test as whether the employer had acted honestly and reasonably. However, it reaffirmed the essential statement of law that a person does not discriminate if he takes the impugned decision in order to protect himself in litigation. That was the basis of the ET’s finding in the present case and we are satisfied that the ET’s holding that the BMA had victimised Mr Chaudhary was wrong in law.

Conclusions on the Appeal

[178]The BMA’s appeal has been allowed on the grounds of perversity in respect of the finding of indirect discrimination and on the ground of a misdirection of law in respect of victimisation. Mr Chaudhary’s cross-appeal has been dismissed because it was based on a factual foundation which has now disappeared. The consequence is that the award of compensation must be set aside.

OTHER ISSUES ARGUED ON THE APPEAL

[179]Because it could not be known that the court would accept the BMA’s submissions on perversity, the BMA wished to attack the ET’s decisions on other grounds, on the assumption that the court would uphold the essential findings of fact and the inference that the BMA had imposed a condition or requirement on its members that, if they wished for support in a legal claim, they must not include an allegation of race discrimination against the named medical regulatory authorities. Because a great deal of energy and skill went into the preparation of those submissions and the response to them, we think that we should express our views on some of them, albeit that everything that we say will be obiter. We will deal with these submissions rather more briefly that we would have done if they had been part of our decision.

Indirect Discrimination

[180]The BMA contended that the facts found by the ET could not, in law, amount to indirect discrimination contrary to section 1(1)(b) of the 1976 Act.[181]The critical findings of fact by the ET were that(a) the requirement or condition applied by the BMA to those seeking its support was that the applicant was not seeking to include race discrimination claims in its complaints against a Royal College, a member of a SAC, the Postgraduate Dean or the STA;(b) a higher proportion of Asian BMA members than non-Asian members wanted the assistance of the BMA to make such complaints; and(c) the consequence was that a considerably smaller proportion of Asian BMA members could comply with that requirement than others not in that group, and that Mr Chaudhary could not comply

Submissions

[182]The essence of Mr Cavanagh’s submission was that the requirement or condition found by the tribunal related to the non-provision of a benefit (i.e the limits on the scope or range of the advice, support and litigation services provided by the BMA to its members). The non-provision of that benefit to BMA members related to the nature of the claim that the member wished to make (race discrimination) and the identity of the person or body against whom the member wished to make it (the specified regulatory medical bodies).[183]His starting point was that the BMA was under no obligation to offer the services in question to its members. There would not, therefore, be any unlawful discrimination in simply refusing to supply the services to any of its members. Nor was there unlawful race discrimination in limiting, by reference to non-discriminatory criteria, the range of services that it offered to all of its members.[184]The requirement or condition found by the tribunal did not relate to the particular personal characteristics (racial or otherwise) of the member seeking the advice and support of the BMA in making allegations of race discrimination. All members, whatever their race, were denied access to the BMA’s service of assistance and support if it was for a claim of race discrimination against one or more of the specified regulatory medical bodies.[185]Further, the requirement or condition did not have a disproportionate adverse impact in the sense that the member of a particular racial group (e.g. Asian members) would find it more difficult to satisfy or comply with than others of a different group (e.g. white members). According to the express terms of the requirement or condition inferred by the tribunal, there was a blanket bar on support for any complaints involving race discrimination allegations against those bodies. No member of the BMA, whatever his or her race, had access to the services offered, if the claim included an allegation of race discrimination against one of the particular regulatory bodies.[186]The ET erred in law, Mr Cavanagh submitted, in concluding that the requirement or condition was disproportionately more difficult for Asian members to comply with than non-Asian members. It had reached that conclusion on the basis that a higher proportion of Asian members would wish to bring claims for racial discrimination against one of the regulatory bodies than the proportion of white members who would wish to do so. In fact, as Mr Cavanagh pointed out, there was no actual evidence that this was so; however, it seems likely to us that the assumption was factually correct and we approach the issue on the basis that the ET was justified in believing that a higher proportion of Asian members would want to allege racial discrimination against one of the regulatory bodies (and would therefore want BMA support) than of non-Asian members. Mr Cavanagh’s point was that, by focussing on the proportion of members of a group who wantedthe benefit in question, the ET had erred in law. It should have focussed on the proportion of members who could comply with the imposed condition or requirement. As to that, there could be only one answer; no member of whatever racial origin could comply; therefore there was no disparity of impact.[187]Mr Cavanagh observed that a requirement or condition, the application of which can lead to indirect race or sex discrimination, is normally expressed in neutral terms i.e. it does not expressly refer to the prohibited grounds of sex or race. Usually, in a hearing about indirect discrimination, the evidence and arguments relate to the differing extent to which different groups or pools of people can comply with the condition or requirement. Only if such evidence is considered can the ET examine the facts in the context of section 1(1)(b) and decide whether or not the condition or requirement gave rise to a disparate impact.[188]The position here was quite different; there was no discussion at the hearing about the appropriate pools for comparison. That was not surprising because Mr Chaudhary had never alleged indirect discrimination in the form in which the ET found it. As we have seen, the finding of indirect discrimination arose purely as a matter of inference from the ET’s findings of primary fact. Thus, in the ET’s decision, there was no consideration of section 1(1)(b) or analysis of what evidence was required to demonstrate disparate impact. Mr Cavanagh submitted that, had the ET undertaken that analysis, it would have concluded that the facts found by it did not fall within the provisions of section 1(1)(b).[189]At the oral hearing Mr Cavanagh developed these submissions by enlisting the support of the majority of the House of Lords in Secretary of State for Trade and Industry v Rutherford (No 2)[2006] ICR 785.This case had been decided after permission to appeal had been granted in the present case. Mr Cavanagh claimed that his original written submissions had correctly anticipated the opinions of the majority in Rutherford. He now had House of Lords authority backing his legal analysis that it was wrong in law to treat this case, as the tribunals below had done, as one of indirect race discrimination.[190]Rutherford was a claim under the Sex Discrimination Act 1975, the provisions of which are closely analogous to those of the Race Relations Act 1976. In that case, a group of men who had continued working over the age of 65 complained that the provision in the Employment Rights Act 1996, which excluded all workers over the age of 65 from the right to bring a claim for unfair dismissal or a redundancy payment, was indirectly discriminatory because a considerably greater proportion of men than women carry on working over the age of 65 and would be denied statutory protection.[191]In the ET, the claims were upheld but the EAT allowed the Secretary of State’s appeal. The claimants’ appeal was dismissed in the Court of Appeal. At all three levels of consideration, the argument had been about the effect of the statistical evidence. It had not been disputed that the pool for comparison was the whole employed workforce, whether or not the workers carried on working after the age of 65. It had not been suggested by either side that the correct pool for consideration was limited to those members of the workforce who were affected by the provision, viz those who had carried on working after 65. It appears that the possibility that that might be the correct approach was raised during the argument before the House, although it had not been raised by either side in its written case.[192]The House of Lords unanimously dismissed the appeal, but when the speeches were published it was found that three members of the Appeal Committee, Lord Scott, Lord Rodger and Baroness Hale, had reached their decisions on the basis that the correct pool for consideration was those members of the workforce who were affected by the legislative provision, namely those who continued working after 65. Lord Nicholls and Lord Walker had reached their decisions on the issues which had been fully argued, assuming that the correct pool was the entire workforce. On this approach the claim failed, because the evidence did not demonstrate that the impugned legislation had an adverse impact on a considerably greater proportion of men than women. Only 1.2% of the workforce carried on working after 65 so as to be affected by the provision. Of those, the proportion of men to women was 1.4:1. Lord Nicholls held that, in the context of a workforce of over 26 million workers, of whom only 1.2% were affected, there was an insufficient degree of disparate impact to show indirect discrimination.[193]Mr Cavanagh submitted that the reasoning in the opinions of the majority bolstered the BMA’s case. We confess that we had some difficulty in establishing exactly what the ratio of the majority was. Although Lord Scott and Lord Rodger said that they agreed with the speech of Baroness Hale, they did express themselves rather differently from her. In the end, however, it seems to us that the ratio of the case can properly be taken from the headnote of the report of the appeal in the Industrial Cases Law Reports, which reflects the reasoning in Baroness Hale’s speech. The headnote says:
“Held, dismissing the appeals, (per Lord Scott of Foscote, Lord Rodger of Earlsferry and Baroness Hale of Richmond) that article 141 EC sought to ensure that men and women in the same position in the workforce, doing equal work, received equal pay, and the appropriate group for comparison, in relation to the statutory provisions denying the right to compensation for unfair dismissal and redundancy pay to those over 65, comprised all those still in the workforce at age 65; that, as those provisions applied to the same proportions of women in that group as men, there was no indirect sex discrimination; per Lord Walker of Gestingthorpe that the pool for the purposes of comparison comprised all those employed persons on whom rights were conferred by the 1996 Act, and, making a comparison between the proportions of men and women in that group advantaged by the cut-off age, which was the appropriate approach, there was no significant disparity …”
[194]This is, in our view, an accurate distillation of the interpretation of the Sex Discrimination Act 1975 on which the majority were agreed in contrast to the basis of the opinion of Lord Walker with which Lord Nicholls agreed. As Baroness Hale (paragraph 72) and Lord Scott (paragraph 16) explained, it would not be enough to establish indirect discrimination that considerably more men than women are affected by the requirement or condition or provision in question. It has to be shown that the impact of the requirement or condition or provision works to the comparative disadvantage of one group within the pool.[195]The effect of the majority reasoning is that the pool which had to be considered in that case comprised all the over 65 workforce. In other words, the pool had to comprise all those affected by the condition (in that case that in order to be entitled to claim unfair dismissal or a redundancy payment, one had to be under 65). When it was then asked whether the imposition of that condition had a disparate effect on men and women, the answer was plain; it did not, because no one in the pool could comply with the condition because they were all over 65. No statistical evidence was necessary.[196]Mr Cavanagh submitted that, when the reasoning of the majority is applied to the facts of the present case, it is seen that the condition or requirement found by the ET could not amount to indirect race discrimination. The pool for consideration consisted of all members of the BMA affected by the requirement or condition, namely all those who wanted advice and support for a race discrimination claim against one of the specified regulatory medical authorities. However, no member of that group could comply with the condition or requirement found by the ET. So there was no comparative disadvantage or advantage to one particular group (Asian doctors) rather than another group (non-Asian or white doctors) within the pool. There was no discriminatory exclusionary barrier in operation. This was to be contrasted with the more conventional case of the members of a particular racial pool finding it more difficult than others to satisfy a condition or requirement forming a barrier to access to a particular benefit. That could be indirect discrimination.[197]Mr Hendy’s main contention flew in the face of the decision in Rutherford. He submitted that the condition or requirement inferred by the ET had had a disproportionately greater effect on Asian members of the BMA, such as Mr Chaudhary, than on the BMA’s white members, as the white members are less likely to experience race discrimination and were therefore less likely to request the BMA for assistance and support. In short, he was saying that ET had been right to take a pool of all BMA members who were seeking assistance with claims; any restriction on support for race discrimination claims would bear more on overseas members and this restriction was an example of that.[198]Mr Hendy had to dispute the applicability of Rutherfordto this case. He submitted that it was distinguishable on the facts. Second, despite what the majority said about agreeing with one another, it was not possible to extract a single principle from the three opinions of the majority. Third, the reasoning of the majority was inconsistent with binding authorities of the House of Lords and the European Court of Justice namely R v Secretary of State for Employment ex parte Equal Opportunities Commission [1994] IRLR 176 and R v Secretary of State for Employment ex parte Seymour-Smith (No 2) [2000] ICR 244 and was wrong in law. Fourth, the majority views are not binding, as the grounds stated by the majority were not argued in the hearings below or before the House.

Discussion

[199]Mr Hendy was entitled to make detailed objections to Mr Cavanagh’s reliance on Rutherford for the purposes of protecting Mr Chaudhary’s position on a further possible appeal. We mean no disrespect to Mr Hendy when we say that we do not wish to lengthen the obiter section of this judgment with an extensive account of the rival submissions on these points.[200]We say only that we do not consider that Rutherford can be distinguished on its facts; nor do we consider that the authorities relied on by Mr Hendy are in point. We consider that, even though the ratio of the majority might have been more clearly expressed and although it was unfortunate that the basis of the majority decision had not been argued, we are still bound by the ratio as we understand it. In any event, we agree with it.[201]Applying a similar interpretation to the comparable provisions on race discrimination in the 1976 Act, the position in this case is that the appropriate pool comprised all BMA members who want the advice and support of the BMA for race discrimination claims against the specific regulatory medical bodies. No member of that pool could comply with the condition or requirement imposed by the BMA. It follows that there was no comparative disadvantage or advantage for any racial group and no indirect race discrimination against members of the racial group to which Mr Chaudhary belonged.[202]Mr Hendy submitted that the pool was all the members of the BMA. This was the approach of Lord Walker and Lord Nicholls in Rutherfordin taking a pool of all those employed in the workforce. Mr Hendy argued that this was the correct pool, as all the members of the BMA may from time to time want the support and advice of the BMA in proceedings. This does not, however, conform to the reasoning of the majority that the pool should be defined by reference to the nature of the rule, condition or requirement in issue. The wider pool brings into the exercise of comparison people who have no interest in the particular advantage or actually want the particular benefit in question. In Rutherfordthe pool identified by the majority was those still in employment at 65. The fact that there were more men than women in that pool did not mean that there was indirect discrimination against men. There was no disparate impact on men, as all members of that pool (men and women) at age 65 were excluded from the benefit or advantage of protection from unfair dismissal and of redundancy pay.[203]In this case, the ET had failed to identify the correct pool for comparison or, Mr Cavanagh pointed out, any other pool. The tribunal’s approach to indirect discrimination was an error of law, which, if the ET’s findings of fact had been sustainable would have caused this court to allow the appeal. We hold that, even on the basis of the facts found, the ET erred in law in holding that those facts amounted to indirect discrimination within section 1(1)(b) of the 1976 Act.

Time limits

[204]The ET held that all the claims of discrimination by Mr Chaudhary against the BMA were in time. Its decision was based on a finding that there was an act of discrimination within the period of 3 months immediately preceding the presentation of the application on 1 March 2000 i.e the decision by the BMA’s STA Screening Group on 2 December 1999 refusing to support Mr Chaudhary’s appeal to the STA appeal body. It went on to find that this was an act in a series of acts involving the application of the requirement or condition. In the case of the claim for victimisation, the tribunal held that it was just and equitable to extend time.[205]We do not think it necessary or appropriate to set out the rival contentions. On the interpretation of the time limit provisions relating to an act extending over a period of time, the law is well settled. As regards the exercise of the tribunal’s discretion to extend time, this court will only interfere if there has been an error of principle or the decision is plainly wrong. We were not persuaded that the ET had made an error of law in applying the statutory provisions.

Issues on Remedies

[206]A number of issues were argued at the hearing arising from the ET’s decision on remedies, in which it awarded £814,877.41 including interest. As we have decided to allow the appeal, to dismiss the claim for indirect race discrimination and victimisation and to uphold the tribunal’s dismissal of the claim for direct race discrimination, all issues relating to remedies are academic. We have decided, nevertheless, to express our conclusions on some of the more important remedies issues. We have heard full legal argument on them. This case may go to a higher court. If a different view were to be taken there on the issues of liability, the availability of remedies would become relevant once more. The issues also raise some novel points of general interest on which it may be helpful to state our views.

Section 57(3) of the 1976 Act

[207]The ET rejected the BMA’s submission that it should apply the statutory exclusion of liability to pay damages for unintentional indirect race discrimination. As noted earlier in this judgment, the subsection provides that no damages shall be awarded if the case is one of indirect discrimination and “…if the respondent proves that the requirement or condition in question was not applied with the intention of treating the complainant less favourably on racial grounds.” The basis of the ET’s holding was that it was not satisfied that the BMA had proved that the requirement or condition had not been applied with the intention of treating Mr Chaudhary less favourably on racial grounds.

Submissions

[208]Mr Cavanagh submitted that, correctly applied, section 57(3) should have prevented the ET from awarding Mr Chaudhary any compensation. It was clear that, if the BMA had indirectly discriminated against Mr Chaudhary, it had done so unintentionally.[209]A new point was raised by Mr Hendy in Mr Chaudhary’s cross-appeal, namely that section 57(3) should be disapplied as being incompatible with Council Directive 2000/43 (the Race Directive) and EC law principles of equality and effectiveness. Permission to argue the point was needed but we decided that it should be given. We heard full argument. If we are to consider it in this judgment, logically it should be considered first. We recognise that this is the kind of point of general application that should normally be left for decision on a case in which the point has to be decided. However, for the reasons we gave earlier and because the Secretary of State for Communities and Local Government had been given permission to intervene, we will deal with it albeit quite briefly.[210]In fact, we consider that, in the circumstances of this case, there is a very short answer to Mr Hendy’s submission. This is that all the acts in respect of which Mr Chaudhary claimed indirect race discrimination (the last act complained of being on 2 December 1999) pre-date the coming into force of the Race Directive 2000/43/EC, which was promulgated and entered into force on 29 June 2000. We note that member states were allowed until 19 July 2003 for implementation of the Directive. The Race Directive could therefore have no application to this case. Section 57(3) should therefore have been applied by the ET.[211]However, the point was argued more generally before us. Mr Cavanagh and the Secretary of State submitted as follows. Section 57(3) had been in force for many years before the Race Directive came into force. Pursuant to the Directive, Parliament amended the 1976 Act with effect from 19 July 2003 by the Race Relations Act 1976 (Amendment) Regulations 2003. The Regulations implemented the Race Directive by (inter alia) introducing in section 1(1A) an additional category of indirect discrimination based on Article 2 of the Directive. It covers discrimination on grounds of racial or ethnic origin. Section 57(3) does not apply to unintentional acts of indirect discrimination which contravene section 1(1A). Damages for such discrimination are not subject to the statutory restriction on remedies, which continues to apply only to what may be termed “residual” acts of indirect discrimination which contravene section 1(1)(b) of the 1976 Act, but fall outside the Race Directive and section 1(1A) i.e. discrimination on the ground of colour or nationality. The restriction on damages for acts of unintentional indirect discrimination which are outside the Race Directive is not therefore incompatible with the Race Directive.[212]Further, reliance cannot be placed on the general principles of equality and effectiveness in relation to the indirect discrimination provisions of the 1976 Act. Until the Race Directive came into force, indirect race discrimination (unlike, for example, sex discrimination) fell outside the scope of EC law. The general principles of equality and effectiveness affecting the interpretation and implementation of EC law did not apply to areas then outside EC law.

Discussion

[213]We would accept those submissions. Even if the acts in question had occurred after promulgation of the Race Directive in 2000, we would have held that there was no basis for the disapplication of section 57(3). The Race Directive did not have direct horizontal effect during the period before its implementation into national law in 2003. It only had vertical effect. As the BMA is not an emanation of the state, the Race Directive had no direct effect against the BMA which could have been relied on by Mr Chaudhary and there could be no ground for disapplying section 57(3) as against it.[214]We return to the main point taken under section 57(3). The burden of proof on this point was on the BMA to prove that the requirement or condition found by the tribunal was not applied by it “with the intention of treating the claimant unfavourably on racial grounds.”[215]As mentioned earlier, the tribunal declined (in paragraph 130 of its liability decision) to infer that the refusal to provide assistance to Mr Chaudhary was direct discrimination on racial grounds. It continued in paragraph 131- “We come to the conclusion that the [BMA] have therefore imposed a requirement or condition on claims from members that in order to be considered they should not include a claim that the Royal Colleges, the Postgraduate Dean or the STA have discriminated on racial grounds in applying their criteria and making their decisions. We think it may well not be a deliberate policy but a result of the attitude of mind of those who had to make decisions on behalf of the [BMA].”[216]Thus the ET held that the BMA had subconsciously applied a requirement or condition that had arisen from an attitude of mind that it was not prepared to countenance an allegation of race discrimination against certain medical authorities.[217]At the remedies hearing, the BMA’s position was to deny that it had consciously applied any requirement or condition, but it had to accept the finding made at the liability hearing. Thus the BMA had to prove that, although it had (unwittingly) applied a requirement or condition to all its members, it had not thereby intended to treat Mr Chaudhary, as a member of a particular racial group, any less favourably than members of any other racial group. Indeed it contended that it had not had any intention at all.[218]The ET directed itself as to the meaning of ‘intention’ by reference to JH Walker Ltd v. Hussein[1996] IRLR 11. It directed itself that “intention is concerned with the state of mind of the respondent in relation to the consequences of the act. A respondent intends the consequences to follow if he knew when he did the act that they would and if he wanted the consequences to follow.” So, it held that there were two limbs to the test. Before there could be any damages for indirect discrimination, the ET would have to hold(i) that the BMA knew that the discriminatory consequences would follow from the imposition of the requirement or condition and(ii) that it wanted the discriminatory consequences to follow.[219]In the remedies decision, the ET said:- “24. We find that the respondents refused to contemplate the possibility of the authorities discriminating even when others suggested that they could have done and at best, they refused to consider the consequences of that state of mind. We certainly find that they did not want to support a claim of race discrimination against the authorities or see a claim brought by a member. We think that is sufficient to indicate that they wanted to bring about the state of affairs which is the discriminatory requirement.”[220]It is not clear what the tribunal meant by the last sentence in this passage. It appears that the tribunal had taken the two limbs in reverse order and to have thought that the finding in this passage sufficed to satisfy the second of the two limbs in Hussein,namely that the BMA wanted to discriminate against Mr Chaudhary or against all their Asian or overseas members. In effect, the tribunal held that, because the BMA did not want any of its members to make an allegation of race discrimination against the medical authorities, it must have wanted to discriminate on racial grounds.[221]In our view, this finding was unsustainable. The conclusion does not follow from the premise. The fact (assuming it to be so) that the BMA did not want any of its members to allege racial discrimination against the medical regulatory authorities does not have any bearing on whether the BMA wanted the imposition of its requirement not to allege race discrimination to have a racially discriminatory effect. The two are not related. It appears to us that the tribunal’s holding on the second limb of the Hussein test is logically flawed.[222]Further, the implied holding that the BMA wanted to discriminate against Mr Chaudhary by imposing its requirement does not sit easily with its earlier conclusion in the liability decision that the BMA had not directly discriminated against Mr Chaudhary on racial grounds. It is also at odds with the observation which we cited above that the BMA had not made its decisions in accordance with a deliberate policy but as the result of an attitude of mind.[223]Returning to the tribunal’s consideration of the first limb of the test, the decision (in paragraph 24) continued:- “The second limb of the requirement (it must have meant the first) is that the respondents knew that the prohibited result follows. We come to the conclusion that they did know, if they cared to consider it, that more Asian members than white would be affected by that attitude but they did not want to consider it expressly. We have come to the conclusion that the respondents have not established that they did not apply the requirement with the intention of treating the applicant unfavourably on racial grounds. The application of it was at best reckless. They did not want to know that they had discriminated.”[224]The reference to the burden of proof was correct; it lay on the BMA. In this passage, the ET equated ‘turning a blind eye’ to the consequences of its actions with knowledge of the consequences. We doubt that constructive knowledge of the discriminatory consequences would be sufficient to satisfy the first limb of the test in Hussein. We think that for the respondent to intend to treat the applicant unfavourably on racial grounds, he would have to have actual knowledge or conscious realization that the condition he had imposed would have disparate impact on one racial group and that he that positively wished it to have that effect. We draw attention to the difference between the language of section 1(1)(a) of the Act and section 57(3). Section 1(1)(a) provides that a person discriminates against another directly if he treats another person (the claimant) less favourably on racial grounds. It is now well established that ‘on racial grounds’ may include reasons that are subconscious. However, the words of section 57(3) are different; instead of ‘treating the claimant less favourably on racial grounds’ we have the application of a condition ‘with the intention of treating the claimant less favourably on racial grounds’. It seems to us that the burden on the respondent to show that he did not intend to treat the claimant less favourably on racial grounds is a lesser hurdle for him to cross than simply to show that he had not treated the claimant less favourably on racial grounds. One may act on racial grounds subconsciously but one cannot intend to discriminate subconsciously.[225]Even if the ET’s approach to constructive knowledge were permissible, its approach to the second limb (did the BMA want to discriminate?) was logically flawed and the overall conclusion is therefore unsustainable.[226]The result is that, in our view, the ET erred in holding that, because the BMA imposed the requirement on all its members it intended to discriminate against doctors from ethnic minorities. A correct application of section 57(3) to the facts of this case as found by the ET should have resulted in a refusal to award damages for indirect discrimination. Of course, if the finding on victimisation had stood, there would have been an award for the consequences of that, because section 57(3) does not apply to victimisation.

The impact of the Creed decision

[227]As we have decided(i) that there was no indirect race discrimination, and(ii) even if there was, there would have been no award of damages because of the operation of section 57(3), the questions arising on the impact of the Creed decision on the award of damages for loss of a chance of Mr Chaudhary progressing in his medical career may be described as ‘doubly academic’. We will therefore state our conclusions as briefly as possible.[228]The BMA’s essential argument was that the Creed decision threw a completely new light on the findings of the ET in the BMA case and demonstrated that the award of substantial damages to Mr Chaudhary had inflicted an injustice on the BMA. In the end, Mr Chaudhary had proceeded with the claims of race discrimination against the various medical regulatory authorities; he had his day in court with the support of the BMA. The outcome was that his claims have comprehensively failed in the ET, the EAT and this court. The ET’s (necessarily speculative) assessment of the loss of the chance of success had been shown by subsequent events to be wrong. If the award of damages for loss of a chance were to stand, there would be grave injustice. This court could and should remedy the injustice by admitting evidence of the Creed decision and taking it into account in considering the (notional as it turns out) award of damages for loss of a chance. The inevitable consequence would be that the award would have to be set aside; this court would conclude, in the light of the Creed judgment, that even if the BMA had discriminated against Mr Chaudhary, he had suffered no loss because in truth he had no chance of putting his career right.[229]Mr Hendy contended that the Creed decision was not evidence and could not be admitted as fresh evidence under CPR 52.11. It was a judgment based on evidence before the Creed tribunal. The BMA did not seek to adduce the evidence on which the Creed decision was based. If it tried to do, it could not possibly succeed on such an application, as all the evidence could have been available with reasonable diligence for use at the hearing of the BMA case. It was wrong for the BMA to seek to overturn the decision of the tribunal on the basis of an evidence-based decision, having not called that evidence in the tribunal hearing the claim against the BMA. In so far as the BMA’s problem had arisen because the remedies hearing had taken place before the hearing of the Manchester proceedings, Mr Hendy pointed out that, before the remedies hearing, the BMA could have applied to adjourn it until the outcome of the Manchester proceedings was known. The ‘fresh evidence’, if such it was, was reasonably foreseeable. The BMA was now seeking to substitute hindsight for foresight.[230]Mr Hendy also submitted that, even if the Creed decision were admitted as fresh evidence, it could not have an impact on the outcome of the BMA proceedings. This court and the EAT could only interfere with the ET’s decision on the ground that the ET had made an error of law. The Creed decision did not demonstrate that the ET had made any error of law in the instant proceedings. There was no error of legal principle, perversity or irrationality in its decision on this point. The BMA was, he said, seeking to use the Creed decision to show that the tribunal came to the wrong factual decision on loss of a chance.[231]In our judgment, on any sensible view of the matter, the Creed decision undermines the decision of the ET on the issue of the damages awarded to Mr Chaudhary for loss of a chance. This is quite apart from other grounds for appealing against the award of damages. It cannot be sound in principle or sensible in practice for this court to confine its consideration to the speculations of the tribunal on loss of a chance and to ignore what has since been established in legal proceedings brought by Mr Chaudhary and by which he is bound. Support for this general approach is found in Charles v. Hugh James Jones[2000] 1 All ER 289 and Willis v. Commonwealth(1946) 73 CLR 105 at 109. It would require a clear rule of law or legal principle to compel this court to ignore known facts and to restrict itself to the realms of speculation about the prospects of success of the discrimination claims against the regulatory medical authorities.[232]The Creed decision either is fresh evidence or it is not. If it is fresh evidence within CPR 52.11, it is undoubtedly just to admit it on the appeal on a number of grounds. First, it could not have been available for use at the remedies hearing in the tribunal, which took place in 2002 before the Creed decision was reached in 2004. The fact that the BMA could have applied to adjourn the remedies hearing until after the outcome of the Creed proceedings was known does not alter the fact that the Creed decision was not available at the time of the remedies hearing. It is not known whether such an application would have succeeded; nor was it certain then that the Manchester proceedings would ever be heard on the merits.[233]Second, the Creed decision would have an important influence on the result of the claim for damages for loss of a chance. If the tribunal had been aware at the remedies hearing that Mr Chaudhary had litigated his discrimination claim against Dr Platt with BMA support and had failed, it is inconceivable that he would have been awarded substantial damages for loss of a chance to put his career right.[234]If, however, the Creed decision is not evidence at all, permission under CPR 52.11 to use it on the appeal is not necessary and the court is not concerned with whether the relevant criteria for the admission of fresh evidence on an appeal are satisfied. It seems to us that there is no reason why the court cannot treat the Creed decision as a relevant event of which it can take judicial notice. It is a final judicial decision, which is binding on Mr Chaudhary and it is on a point which is relevant to the assessment of damages for the loss of a chance claimed by him.[235]As indicated in the summary of the BMA proceedings above, the BMA applied to the tribunal for a review of the award of damages for loss of a chance in the light of the Creed decision. The application was rejected. Mr Cavanagh contended that it ought to have been granted, but rather than appeal against it, the BMA decided to apply to this court to adduce the Creed decision on the appeal.[236]The point is now academic. However, if it had been live, our conclusion would have been that, in the unusual circumstances arising in this case, the court must, in the interests of justice, take notice of the Creed decision. The effect would have been that the award of damages would have been set aside and would have been replaced by a finding that any discrimination by the BMA had caused no loss. First, as a matter of fact, Mr Chaudhary had not lost the chance to bring his claim against the Postgraduate Dean; he had brought it and had lost. Second, he had not lost anything of value by the BMA refusing to take up his case and attempting to persuade the medical authorities to change their stance. In our view, any attempt at persuasion which is not based upon a meritorious argument would have little chance of success.[237]At this stage, we wish to add that we think it was most unfortunate that these proceedings were heard in the wrong order. In the unlikely event that such a situation ever arises again, we think that the parties and the tribunals concerned should make every effort to ensure that a tribunal does not speculate about matters which are going to be determined at a later date.

Loss of a chance: error of law, adequacy of reasons and perversity

[238]As we have said, the ET found that, if the BMA had not discriminated against Mr Chaudhary and victimised him, it would have provided support which would have resulted in him having a 50% chance of putting his career right. Quite apart from the impact of the Creed decision, Mr Cavanagh advanced other grounds for attacking this conclusion.[239]At the remedies hearing, Mr Hendy had submitted that, although the loss of career had been caused primarily by the Postgraduate Dean’s refusal to admit him to the training grade of specialist registrar, it had also been caused or contributed to by the BMA’s failure to support his claims. He submitted that the BMA’s contribution had been to the extent of 50%.[240]That submission was accepted, but Mr Cavanagh contended that it was impossible to tell why the tribunal had accepted it. It gave no explanation at all.[241]Mr Hendy defended the decision, emphasising that the chance which Mr Chaudhary had lost was of the BMA advancing his race discrimination case in order to fortify his case that the requirement of SAC approval of the Manchester post should be disapplied so as to allow his automatic transition to the new training grade. This could have been achieved with the backing of a powerful body like the BMA, either by litigation or by persuasion or the threat of litigation. Dr Platt was alive to the risk of race discrimination and might well have been persuaded to change his mind if a powerful body like the BMA had lent its support.[242]The tribunal’s conclusions on this point are contained in paragraphs 25 to 28 of the decision. We do not intend to burden this judgment by recording those paragraphs in full; we say only that, at one stage, the ET said that the Southampton proceedings had had a low chance of success due to being brought out of time; Mr Chaudhary’s other claims (presumably meaning the Manchester proceedings) were slightly stronger, but not overwhelmingly strong. However, when the ET had to say what the good case was, they found it difficult. They said:
“The nature of the applicant’s evidence was a comparison between his treatment and the treatment of others. It is true that the applicant has not produced to us great detail of which other cases he could have relied on in comparison. He did have the argument that white applicants were given the status of Consultant in the old system in circumstances where they had worked in similar posts and also the possibility that others had been treated differently in the same post although it is not clear how similar their cases would have been, as the Royal College alleged that it had been some time since recognition had been removed. This was, of course, an inference case which is never very straightforward but in our view it was by no means valueless.”
Later, the ET continued:
“He (Mr Chaudhary) certainly may have been able to show that his treatment was somehow wrongly linked to the idea of ‘visiting registrars’ which, in our view, might have caused an inference to be drawn on race. Counsel’s opinion given to the applicant on 12th May 1997 was that there was evidence on which the prospects of the claim were good. It is, of course, true that Counsel was over-optimistic about the time point and that the course of events in this case clearly indicates that Counsel’s opinion that chances are good does not always guarantee success, but the chances of success of that application have never been put to the test.”
[243]We have some sympathy with the tribunal, as estimates of the kind that the tribunal had to make contain an element of guesswork, but the finding that the effect of the BMA’s discrimination was the loss of a 50% chance of success seems either to have been plucked out of the air or more likely to have originated in Mr Hendy’s persuasive submissions at the remedies hearing. Almost everything that the tribunal said before arriving at that figure seemed to suggest that the chances of success were in the range of a low chance of possible success rather than anything as good as evens.[244]If a court or tribunal is faced with the task of assessing the effect of negligence or racial discrimination (or some other tort) on the loss of a chance, it is necessary to identify the specific shortcomings which have occurred and to consider what would probably have happened if those shortcomings had not occurred. If the chance in question is the chance of success in litigation, it has to examine the merits of the claim which has not been pursued. It has to examine how the claim would have been put and what evidence would have been available in support and in opposition. The court cannot reach a satisfactory conclusion by taking a superficial look at the merits.[245]In our judgment the tribunal failed to carry out an adequate analysis of the strengths and weaknesses of Mr Chaudhary’s legal claims for race discrimination against the Postgraduate Dean, the STA and the other medical regulatory authorities, so as to enable it properly to form a view as to the effects of the BMA’s failure to provide support. In so far as the tribunal could not do so because the material was not available to it, that failure must be laid at Mr Chaudhary’s door, since the burden was on him to prove his loss. The tribunal referred, for example, to the absence of detail about the difference between his treatment and that of the white comparators that he relied on. It referred to the possibility that others had been treated differently, but said that it was not clear how similar their cases would have been. The tribunal observed that Mr Chaudhary may have been able to show that his treatment was “somehow wrongly linked to the idea of visiting registrars.” It is clear that the tribunal did not understand how Mr Chaudhary was going to put his case against the Postgraduate Dean if he had the chance. With the benefit of hindsight, we know that Mr Chaudhary had great difficulty in putting any discrimination case against Dr Platt because there were no other doctors who had been treated more favourably than him by Dr Platt. Mr Chaudhary was never able to explain how his treatment was wrongly linked to the idea of visiting registrars. At the time of the remedies hearing, the position was wholly unclear, as the tribunal recognised.[246]The tribunal mentioned that counsel’s advice was supportive of a claim for racial discrimination. It recognised that counsel had been wrong on the question of time limits for the Southampton proceedings, but did not examine the basis of his favourable advice on the merits. Had it done so, it would have found the advice did not throw any light on the real prospects of success for Mr Chaudhary’s claim against Dr Platt if it had been supported by the BMA. In short, there was no basis on which the ET could have formed the view that Mr Chaudhary had any discernible prospect of success in the pursuit of litigation.[247]We recognise that the tribunal thought that those prospects were not the only consideration. It took the view that the BMA had failed to make appropriate representations on Mr Chaudhary’s behalf and that, if it had done all that it should have done, his chances of saving his career would have improved. The tribunal recognised that the BMA had done a good deal for him, its main shortcoming being that it would not press the point that he had been discriminated against on racial grounds.[248]It seems that the tribunal thought that by making and pressing that allegation (without there being any evidence that the allegation was valid) Mr Chaudhary’s chances of being admitted to the specialist registrar grade or to the specialist register would have been significantly advanced. We do not regard this as logical. If the claim of racial discrimination was not strong, as the tribunal appears to have thought, the arguments and persuasion that could be brought to bear would not be strong either.[249]We have been unable to find any material which would, if properly analysed, lead to the conclusion that, if the BMA had been prepared to allege race discrimination against the medical regulatory bodies, Mr Chaudhary would have had an even chance of achieving his objective, either by litigation or by persuasion and settlement. In our judgment, there is no logical connection between the tribunal’s lengthy review of the events and its conclusion that, if the BMA had done as it should, Mr Chaudhary would have had a 50% chance of progressing in his career.[250]Had the need arisen, we would have set aside the assessment of loss of a 50% chance of saving Mr Chaudhary’s career and we would have remitted the matter of quantum to another tribunal.[251]In summary our conclusions are as follows:(1) The employment tribunal did not err in law in dismissing Mr Chaudhary’s claim for direct race discrimination.(2) The finding of indirect race discrimination was one which no reasonable tribunal, properly directing itself in law, could have reached.(3) The tribunal erred in law in holding that there had been unlawful victimisation.(4) The tribunal did not err in law in finding that the claims were in time.[252]For these reasons, we allow the appeal of the BMA, set aside the decisions of the employment tribunal on liability and remedies and dismiss the proceedings against the BMA for race discrimination and victimisation. We also dismiss Mr Chaudhary’s cross-appeal.

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