MR R CHAUDHARY v (1) THE SENATE OF THE ROYAL COLLEGE OF SURGEONS OF GREAT BRITAIN & IRELAND & OTHERS (2) NHS EXECUTIVE HEADQUARTERS (3) DEPARTMENT OF HEALTH (4) NHS EXECUTIVE NORTH WEST (5) THE POSTGRADUATE DEAN NORTH WEST DEANERY (6) NHS EXECUTIVE SOUTH & WEST [2001] UKEAT 975_99_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 975_99_1907Case No Appeal No. EAT/975/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R CHAUDHARYAPPELLANT(1) THE SENATE OF THE ROYAL COLLEGE OF SURGEONS OF GREAT BRITAIN & IRELAND & OTHERS (2) NHS EXECUTIVE HEADQUARTERS (3) DEPARTMENT OF HEALTH (4) NHS EXECUTIVE NORTH WEST (5) THE POSTGRADUATE DEAN NORTH WEST DEANERY (6) NHS EXECUTIVE SOUTH & WESTRESPONDENT
Before
MISS RECORDER ELIZABETH SLADE QCMISS C HOLROYDMR G H WRIGHT MBEDate 19 July 2001
[1]APPEARANCES For the Appellant MISS MELANIE TETHER (of Counsel) Instructed By: Messrs Russell Jones & Walker 4th Floor Brazenose House West Brazenose Street Manchester M2 5AZ For the 1st Respondent For the 2nd – 6th Respondents MR PHILIP MEAD (of Counsel) Instructed By: Messrs Paisner & Co Solicitors Bouverie House 154 Fleet Street London EC4A 2DQ MISS JANE COLLIER (of Counsel) Office of the Solicitor Department of Health Room 527 New Court 48 Carey Street London WC2A 2LS MISS RECORDER ELIZABETH SLADE QC This is an appeal by Mr Rajendra Chaudhary against the Decision of an Employment Tribunal that his complaint of race discrimination against each Respondent was presented out of time and that it was not just and equitable to consider them. Accordingly the Employment Tribunal dismissed his complaint against each Respondent.[2]Miss Tether challenges the Decision on the following grounds:(1) that the Tribunal erred in law by failing to determine when the Appellant's cause of action crystallised for the purposes of section 68(1) of the Race Relations Act 1976 ('RRA');(2) that the Tribunal erred in law in finding that there was no continuing act of discrimination within the meaning of section 68(7) RRA;(3) that the Tribunal erred in law in finding that Professor Temple did not take any decision in relation to the Appellant and that his involvement was not part of a process;(4) that the Tribunal erred in law in refusing to exercise its discretion under section 68(6) to extend the statutory time limit for presenting the complaints. The Factual Background[3]Mr Chaudhary is an experienced Medical Practitioner and a Fellow of the Royal College of Surgeons. From December 1991 to 2 July 1995 he was Registrar in Urology at North Manchester General Hospital. The post was not approved by the Specialist Advisory Committee of the Royal College of Surgeons for higher Surgical Training. Thereafter he worked as a long-term locum registrar at Portsmouth Hospital.[4]On 1 December 1995 a new specialist registrar grade was launched. As a first step in implementing the new grade, existing career and senior registrars were to be transferred into the new grade. The "Guide to Specialist Registrar Training" issued in March 1996, which was popularly known as "the Orange Guide", set out guidance on conditions for entry to the Specialist Registrar grade during the transition period.[5]The eligibility criteria for entry to the specialist registrar grade were set out in paragraph 8 of the Orange Book. Those were minimum college or faculty qualifications and in addition other criteria which included the previous holding of a "career registrar appointment with staffing and educational approval (by the Royal College or Faculty) recognised by the post-graduate dean". Doctors who wished to enter the specialist registrar grade during the transition period had to indicate this formally to the Dean. As long as they satisfied the criteria in paragraph 8 they had an automatic right of entry. They would receive a national training number ('NTN') and would be entered into the training programme at an appropriate point "following announcement by the deanery speciality training committee who will make recommendations to the dean, taking account of advice from Colleges and their Faculties and SAC's". (Orange Book paragraph 12).[6]In paragraph 5(b) of its Decision, the Employment Tribunal found that on 12 April 1996 Mr Chaudhary wrote to Dr H.S. Platt, the Postgraduate Dean for Wessex, regarding the recognition of his previous experience. On 2 July 1996 Dr Platt wrote to Mr Chaudhary:
"We are trying to establish whether the post that you held at North Manchester did, in fact, have Higher Specialist Training recognition from the SAC in Urology. Before we can give you an NTN and put you into the Specialist Registrar grade there has to be evidence that you have held a substantive Career post as a Registrar in Urology. If you have not held a recognised post, then it is going to be a question of you applying for Specialist Registrar posts when they are advertised. …"
At paragraph 5(g) of its Decision the Tribunal held that:
"On 23 July 1996 Dr Platt notified Mr Chaudhary that the post he had held at Manchester did not have SAC approval and that Professor Mundy, Chairman of the SAC had determined that only where individuals have held SAC approved posts would they get a National Training Number."
[7]Mr Chaudhary appealed against the decision not to award him an NTN in Urology. The appeal hearing took place on 14 January 1997 and on that day Mr Chaudhary was orally informed that his appeal was dismissed. The decision to dismiss the appeal was confirmed in writing on 7 February 1997.

(i) of its Decision:

"The panel were unanimously of the view that although Mr Chaudhary held the minimum entry requirement for the grade of Specialist Registrar, ie FRCS, the appointment process to his Registrar post in North Manchester did not conform to the criteria and conditions then in force for an NHS Career Registrar post because the post was not recognised by the SAC in Urology for higher specialist training. The panel advised him to apply for Specialist Registrar posts and once he obtained one, the SAC members would recommend to the full SAC Committee that he be placed on Level 3 of the training programme."
On 21 April 1997 the co-secretary of the Junior Doctors' Committee of the BMA wrote on Mr Chaudhary's behalf to seek advice from Professor J.G. Temple, Special Advisor to the Chief Medical Officer. Professor Temple replied on 30 April 1997 stating:
"I do not as a rule take up specific cases because I believe this is a Deanery problem."
Professor Temple wrote again on 1 August 1997 and expressed his view that Mr Chaudhary was not entitled to an NTN under the transition arrangement. The Tribunal accepted Mr Chaudhary's statement that:
"On 25 October 1997 I met [another doctor] Dilipkumar H Malkan for the first time. He was pursuing a claim of racial discrimination against some of the Respondents in this case. Although he was also being denied progress, the reasons were different. I learned from him that the Department of Health had conceded to him that he had been a Career Registrar during appointments similar to mine at North Manchester. I also came to know that my appointment had been through a process that fulfilled all criteria."
On 20 November 1997 Professor Temple wrote to the Deputy Chairperson of the Junior Doctors Committee of the BMA:
"I have looked carefully at these papers again and now discussed this with you in person. I do believe my letter of the 1st August 1997 to Ms Gail Norcliffe must stand."
On 2 December 1997 Mr Chaudhary presented his Originating Application claiming race discrimination against the Specialist Advisory Committee in Urology, the NHS Executive North West, the Regional Postgraduate Dean, North West Deanery, the NHS Executive South and West and the Regional Postgraduate Dean, Wessex Deanery. Dr Platt, the Postgraduate Dean Wessex Deanery, was dismissed from the proceedings by consent by order dated 9 March 1999.[8]We asked Miss Tether how Mr Chaudhary's claim was formulated against each Respondent. She told us that the complaint against the Royal College of Surgeons was brought under RRA section 12 or section 33 and section 12. She accepts that the second and fifth Respondents are part of the Department of Health, the third Respondent. She tells us that six Respondents had been joined in the proceedings as Mr Chaudhary was not in a position to know the rôle played by each in not appointing him a Specialist Registrar with an NTN. It was not made clear whether Mr Chaudhary was alleging direct or indirect race discrimination or both. The Relevant Statutory Provisions[9]RRA Section 12 provides:
"(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person - … (b)by refusing … to grant his application for it. …. (2) In this section – (a) 'authorisation or qualification' includes recognition, registration, enrolment, approval and certification. "
RRA section 33 provides:
"(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description."
RRA section 68 provides:
"68(1) An employment tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of - (a) the period of three months beginning when the act complained of was done; or … (6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time, if, in all the circumstances of the case, it considers that it is just and equitable to do so." (7) For the purposes of this section – (b) any act extending over a period shall be treated as done at the end of that period. …"
Did the Tribunal err by failing to determine when the Appellant's cause of action crystallised?[10]The Tribunal held in paragraph 16 of the Decision that the Originating Application was presented some seven months out of time. On behalf of Mr Chaudhary, Miss Tether contends that the Tribunal was bound to find that his cause of action did not crystallise until 25 October 1997. Mr Chaudhary gave evidence, recorded in paragraph 12 of the Decision, that it was only on and after 25 October 1997 when he met Mr Malkan that he came to the conclusion that the refusal to recognise his training was on grounds of race. Miss Tether relies upon Clarke v Hampshire Electro-Plating Co Ltd [1992] ICR 312 in support of the proposition that, in deciding when the act complained of was done, the Tribunal must determine the date at which the complainant's cause of action would properly be said to be complete. She also relies on Aniagwu v London Borough of Hackney and Owens [1999] IRLR 303 in which the Employment Appeal Tribunal held that the applicant in that case had not been subjected to a detriment under RRA until he had been notified that his grievance had been rejected (see p.304, paragraph 11).[11]Miss Collier, counsel for the 2 nd to 6 th Respondents contends that time for the purposes of RRA section 68(1) runs from the date of the act of discrimination not from the date of knowledge. She relies upon Mensah v Royal College of Midwives EAT 17 th November 1995 (Unreported) in which Mummery P held at p.11 G-H:
"It is not correct to say that the time under Section 68(1) only runs from the date when knowledge is acquired, for example, of a comparable person of a different race or colour who has received more favourable treatment. On that aspect of the case we were referred by Miss Eady to Clarke v Hampshire Electro-Plating Co Ltd [1991] IRLR 490. We do not think that that case decides that the date on which a discriminatory act occurs is dependent on the knowledge of the complainant or facts or on the circumstances which would enable the complainant to prove discrimination. An act occurs when it is done, not when you acquire knowledge of the means of proving that the act done was discriminatory. Knowledge is a factor relevant to the discretion to extend time. It is not a pre-condition of the commission of an act which is relied on as an act of discrimination."
Mr Meade for the First Respondent adopts Miss Collier's submissions.[12]Time for the purposes of section 68(1) runs from the date the act complained of was done. In Clarke Wood P observed at page 315E:
"So the first question in this case is, did the employee have a cause of action on 25 April 1989? It was not, (sic) did he feel that he had suffered discrimination on 25 April 1989?"
The same approach was adopted by Mummery in Mensah . The dicta relied upon by Miss Tether in Aniagwu go to a different issue, namely that a detriment is only suffered when the decision of which complaint was made was communicated to the applicant. In this case Mr Chaudhary knew that his service with the North Manchester Hospital was not recognised for the purposes of acquiring specialist registrar status many months before October 1997. He asserted that he first felt that he had been discriminated against on ground of race on 25 October 1997. Applying Clarke and Mensah and the language of Section 68(1) it cannot be said that Mr Chaudhary's cause of action was not complete until 25 October 1997. The Tribunal did not err in failing to hold that time, for the purposes of section 68(1), did not start to run until that date. Did the Tribunal err in law in finding that there was no continuing act of discrimination within the meaning of section 68(7) RRA?[13]In paragraph 7 of its Decision the Tribunal considered and rejected the argument that in this case there was a continuing act of discrimination by the maintenance of a policy, rule or practice. On this issue the Tribunal referred to Rovenska v General Medical Council [1997] IRLR 367 and Owusu v London Fire and Civil Defence Authority [1995] IRLR 574[14]It is submitted on behalf of the Appellant that in refusing to grant Mr Chaudhary an NTN, the Postgraduate Dean was applying a requirement which he believed to have been imposed by the SAC, namely that training would only be accredited if or had been undertaken in posts approved by the SAC. It is contended that there was material before the Tribunal in notes prepared on behalf of Dr Platt by his administrative assistant indicating that the requirement could be viewed as racially discriminatory. It is said that so long as that requirement remained in place there was a continuing act of discrimination for the purposes of section 68(7) and that the Tribunal erred in law in failing so to hold. The Appellant relies upon Rovenska , Owusu and Cast v Croydon College [1998] ICR 500 , p.511 in which Auld LJ observed:
"Where a discriminatory policy is alleged, it may be that its continuing existence up to the time of complaint, or within three months before it, is enough to found jurisdiction in claims about access to a profession as it is in employment claims."
[15]The Respondents contend that the decision that Mr Chaudhary was not eligible to enter the Specialist Registrar grade during the transition period was a one-off decision. Further, they contend that the mere existence of a discriminatory policy without its being applied to a complainant where, for example, the individual is not an employee, or does not have an application for employment or entry to a profession under consideration, is not a continuing act within the meaning of section 68(7). Miss Collier draws attention to the case of Tyagi v BBC World Service (Unreported Court of Appeal, 8 March 2001). Mr Tyagi alleged that the BBC operated a racially discriminatory policy on selection for a post within the BBC World Service. He presented an originating application one year and three months after his application for the post was rejected and one year after his employment with the BBC came to an end. Miss Collier relies upon the conclusion of Brooke LJ in paragraph 25 in which he held:
"The way in which Section 1 bites on the actual treatment of an applicant or the actual application of a requirement or condition adverse to an applicant, in my judgment, means that it does not bite on a discriminatory practice which is not in action at all vis a vis a particular applicant if he is not employed by the employer at all so as to be denied access to the opportunities and benefits or otherwise treated disadvantageously in the ways mentioned in Section 4(2), and if he is not being treated unfavourably by not being offered a job because of a discriminatory practice because there is no job on offer."
[16]In our judgment, whether Mr Chaudhary's complaints are regarded as of direct discrimination or, as is more likely, of indirect discrimination, they are founded on the application of allegedly discriminatory rules on admission to Specialist Registrar status to his case. As Brooke LJ observed in Rovenska v General Medical Council [1998] ICR 85 at p.94 E, F:
"A complaint of either direct or indirect discrimination under that section could involve a complaint about a scheme of rules (as in the applicant's case). Direct discrimination, however, would only arise if the complainant had been treated less favourably than a person of another racial group. Unless the rules had been specifically applied to the complainant by the respondent, no such treatment could be made out. In order to establish indirect discrimination it is necessary to show both that the requirement or condition (ie the rule) was applied to the complainant and that he or she suffered a detriment as a result."
[17]The language of section 1(1)(b) requires the application of a discriminatory requirement or condition to the complainant.

(b) (ii):

"The paragraph imposes the burden of showing detriment to the individual applicant by reason of inability to comply. If one asked the question 'At what date is the detriment to be demonstrated?' there can only be one answer: namely, at the date the discriminatory conduct has operated so as to create the alleged detriment."
[18]The continuing application of a discriminatory rule or policy to a complainant is to be distinguished from the continuing existence of a discriminatory rule or policy and its single or occasional application to a complainant. An employment policy may be continuously or constantly applied to an employee and operate to his or her detriment as in Barclays Bank plc v Kapur [1991] ICR 208 , Cast v Croydon College [1998] ICR 500 at p.515 B and Owusu v London Fire and Civil Defence Authority [1995] IRLR 574. However, the fact that the complainant is an employee cannot be determinative of the issue of whether an employer's discriminatory policy gives rise to a complaint of discrimination. For a complaint to be well founded that policy must be applied to the complainant to his or her detriment.[19]In Rovenska , the Court of Appeal considered whether a complaint of race discrimination based on an allegedly discriminatory language requirement for registration to practice as a medical practitioner was brought in time. The Employment Appeal Tribunal had allowed the applicant's appeal on the basis that the act complained of, namely the application of the requirement for limited registration so long as the language test had not been passed or exemption granted, was an act continuing for so long as the General Medical Council operated the requirement. It held that until it resolved or revised its scheme for deciding whether exemption from the language test should be granted, time would not start to run against the applicant. The Court of Appeal dismissed the appeal of the General Medical Council for different reasons from those relied upon by the Employment Appeal Tribunal. Brooke LJ held at page 94 G:
"… an individual has no complaint of discrimination unless or until the scheme of rules is actually applied to him or her and he or she is treated adversely as a result."
In Rovenska the Court of Appeal held that time ran from the refusal of the application for registration (see p.96 C).[20]In our judgment the Employment Tribunal did not err in law in concluding in paragraph 16 of its Decision that the Originating Application was presented at least seven months out of time. It was entitled to conclude that time ran for the purposes of RRA section 68(1) from the date of the dismissal of Mr Chaudhary's appeal. The Employment Tribunal did not err in law in holding in paragraph 7 of its Decision that the matters complained of were not acts extending over a period within the meaning of RRA section 68(7)(b). Even if Mr Chaudhary were to establish that the Respondents or any of them maintained a discriminatory policy extending beyond the dismissal of his appeal, there was no factual basis upon which the Tribunal would conclude that the policy was applied to Mr Chaudhary to his detriment after that event. Thus as the Court of Appeal concluded in Rovenska , time ran from the last decision taken on Mr Chaudhary's application. Did the Tribunal err in law in finding that Professor Temple did not take any decision in relation to the Appellant and that his involvement was not part of a process?[21]Miss Tether contends that the Tribunal erred in concluding in paragraph 8 of its Decision that Professor Temple did not make any decision in relation to Mr Chaudhary and that therefore his letter of 20 November 1997, which was written less than three months before the date of presentation of the Originating Application, was not an act which would give rise to a complaint of race discrimination. It is said that the finding is inconsistent with other findings of fact, correspondence before the Tribunal and the terms of the letter of 20 November 1997 itself. Miss Tether submits, correctly, that as a matter of law every refusal in accordance with a discriminatory policy starts time running again.[22]On behalf of the Respondents, it is said that the Employment Tribunal found unequivocally that Professor Temple did not make a decision on the application of Mr Chaudhary and was not in a position to alter anything (Decision paragraph 8). The notes of Professor Temple's evidence fully support such a finding. Further it is said that since no allegation of racial discrimination in relation to Professor Temple was made in the Originating Application it was not open to the Tribunal, in the absence of any amendment, to make a finding that the letter of 20 November 1997 was an act of discrimination. In support of this proposition Miss Collier relies upon Chapman v Simon [1994] IRLR 124 at p.129, paragraph 44:
"In the originating application, Ms Simon has specified the acts of discrimination of which she makes complaint … and the Tribunal should have confined itself to those matters, unless of course it allowed the originating application to be amended."
[23]In our judgment it cannot be said that the conclusion of the Tribunal that Professor Temple did not make any decision on the application of Mr Chaudhary was inconsistent with the evidence or with its findings of fact. The notes of evidence and correspondence referred to on behalf of the Appellant show that Professor Temple was trying to help Mr Chaudhary by looking into his case but took no decision on his application for Specialist Registrar status.[24]Further, although there is some force in the contention that the Tribunal would not have adjourned the hearing to enable Professor Temple to attend if it had not considered his evidence to be material, in our judgment, applying Chapman it would not have been open to the Tribunal to treat the letter of 20 November 1997 as an act of race discrimination without amendment to the Originating Application. Did the Tribunal err in law in refusing to exercise its discretion under section 68(6) to extend the statutory time limit?[25]In paragraphs 10 to 20 of its Decision the Tribunal considered whether, applying section 68(6) it was just and equitable in the circumstances to hear the complaints. Having regard to the length of delay in presenting the complaints, the availability of advice from Dr Platt and the BMA, the date upon which Mr Chaudhary obtained information from Mr Malkan, the absence of reference to it in the Originating Application, the difference between the cases of Mr Malkan and Mr Chaudhary and its view of the strength of Mr Chaudhary's case, the Tribunal considered, on balance, that it would not be just and equitable to extend time.[26]On behalf of Mr Chaudhary it is contended that the Tribunal erred in law in determining whether it was just and equitable to extend the time for presentation of the claim. It is said that the Tribunal should have considered whether it was reasonable for Mr Chaudhary not to realise that he had a cause of action before he met Mr Malkan. Reliance is placed upon Mr Chaudhary's answer to the following question by a member of the Tribunal:
"Is it true that until you met Dr Malkan you had not considered that you had been the subject of discrimination on the grounds of race? That is correct."
It is said that in the light of that evidence the Tribunal should have concluded that until 25 October 1997 when the meeting with Dr Malkan took place, Mr Chaudhary could not reasonably have been expected to realise that he had a potential complaint of race discrimination. Mr Chaudhary gave evidence as to the information given to him by Dr Malkan on 25 October 1997 which we have referred to and which the Tribunal accepted and set out in paragraph 10 of its Decision.[27]Further, on behalf of Mr Chaudhary, it is said that the Tribunal wrongly took into account the fact that he had the support of his union and the delay in presenting a complaint during periods when he did not realise he had a potential complaint of race discrimination. Further it is said that it was perverse to characterise the reliance on the information received from Mr Malkan as an attempt at a late stage to bring in a fresh matter. Finally it is contended that the Tribunal erred in taking into account the substantial merits of the complaint.[28]The Respondents contend that the Tribunal did not err in law or act perversely in the exercise of its discretion under section 68(6). They point out that section 68(6) gives Tribunals a wide discretion. Further, they contend that it is not an error to form some view of the merits of the complainant.[29]The Tribunal recorded the information Mr Malkan gave Mr Chaudhary and noted at paragraph 13 of its Decision:
"Under cross-examination from Ms Collier, Mr Chaudhary testified that although he was still in contract with the BMA at the time of his discussion with Mr Malkan, he did not seek advice on the matter from them. He was also still in contact with Solicitors on their advice line, but he was not able to remember exactly when he called them."
In our view it cannot be said that there was no material upon which the Tribunal could form the view at paragraph 17 of the Decision that Mr Chaudhary attempted "at a late stage to bring in a fresh matter which might be of influence in persuading the Tribunal that it would be just and equitable to extend the time to validate the complaint". Further, the Tribunal did not err in considering, to a limited extent, the prospects of success of the claims. In Hutchison v Westward Television Ltd [1977] ICR 279, Phillips J held at page 282 D:
"… it is for the tribunal to say how far they think it is necessary to look at the circumstances of the matter complained of. No doubt they will want to know what it is all about; they may want to form some fairly rough idea as to whether it is a strong complaint or a weak complaint, and so on."
Even if the Tribunal accepted that Mr Chaudhary first came to the conclusion that the adverse findings against his training were based on the grounds of his race on or about 25 October 1997 when he spoke to Mr Malkan, in our judgment the Tribunal did not err in law in its approach to exercise its discretion under RRA Section 68(6) nor was its decision perverse.[30]Accordingly the appeal is dismissed.