MR N I KOSKINEN v THE COUNCIL FOR PROFESSIONS SUPPLEMENTARY TO MEDICINE & OTHERS [2002] UKEAT 1447_00_1403

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1447_00_1403Case No Appeal No. EAT/1447/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N I KOSKINENAPPELLANTTHE COUNCIL FOR PROFESSIONS SUPPLEMENTARY TO MEDICINE & OTHERSRESPONDENT
Before
His Honour Judge Peter Clark Mr D A C Lambert Mr R N StrakerDate 14 March 2002
[1]APPEARANCES For the Appellant MR T KIBLING (of Counsel) Instructed By: Messrs Hodge Jones & Allen Solicitors Twyman House 31 - 39 Camden Road London NW1 9LR For the Respondents MS ELLENBOGEN AND MR TATTON BROWN (of Counsel) JUDGE PETER CLARK: By an Originating Application presented to the London (South) Employment Tribunal on 20 March 2000 the Applicant, Mr Koskinen complained of unlawful racial discrimination contrary to the Race Relations Act 1976 by(1) The Council for Professions Supplementary to Medicine (CPSM)(2) The Privy Council and(3) The Department of Trade and Industry (DTI).[2]At an interlocutory hearing before a Tribunal chairman sitting alone held on 13 June 2000 a direction was given that 3 preliminary issues should be considered. They were:
"(1) Whether having regard to the time limits set out in section 68 of the Race Relations Act 1976 (3 months) the Tribunal has jurisdiction to consider the Applicant's claim for race discrimination; (2) Whether the Applicant is entitled to bring proceedings under the Race Relations Act 1976 having regard to the terms of sections 12, 13 (immaterial) and 54 of the said Act; (3) In relation to the Applicant's complaints against the First Respondent whether the acts complained of in the Originating Application are capable of amounting to acts proscribed by the Race Relations Act 1976."
[3]Those preliminary issues came before a Tribunal chaired by Mr Lincoln Crawford on 27 July 2000. By a decision with extended reasons promulgated on 10 October 2000 that Tribunal concluded:(a) that the complaint against each Respondent was not capable of amounting to an act proscribed by the Race Relations Act(b) the Respondents were not qualifying bodies(c) the claim against each Respondent was time-barred. Accordingly the application was dismissed against that decision this appeal is brought.[4]At a preliminary hearing held before a division presided over by Mr Recorder Langstaff QC, the appeal was permitted to proceed on limited grounds. It is in these circumstances that the appeal comes before us. There are now only 2 Respondents, CPSM and The Privy Council, the appeal in relation to the DTI having been dismissed at the preliminary hearing stage.[5]Factual Background We take the facts from the Originating Application, as Mr Kibling invites us to do, assuming them to be correct for present purposes. No evidence was given below. The Appellant, who is of Finnish nationality, was born on 27 March 1941. After "A" levels in Finland he studied in Germany. In 1966 he passed his certificate in Natural Sciences at the University of Bonn Medical School (the German qualification).[6]Between 1968 and 1979 he worked as a Medical Lab Technician/Research Assistant in Germany and between 1980 and 1985 in a similar capacity in London. In 1985 he obtained a Diploma in Immunology and Laboratory Techniques with credit in London at the Institute of Science Technology UK (the English qualification).[7]Between 1986 – 1989 he worked in Germany, returning to England in 1989. He then worked as a Medical Laboratory Scientific Officer (MLSO) in the Department of Immunopathology at St. Mary's Hospital, London.[8]In 1991, when he sought to extend his leave to remain the United Kingdom, the Hospital advised him that he had to apply for registration as a recognised MLSO. In October that year he attended CPSM's offices with his certificates and curriculum vitae going back to 1968 in order to complete the application procedure with a view to registration. In short, he never completed the application form. In March 1997, he was informed by the board that the English qualification was not and never had been acceptable for UK state registration purposes. By then he had been made redundant in October 1996. He has not worked since.[9]The Professions Supplementary to Medicine Act 1960 (the 1960 Act) The scheme of the Act is as follows: By section 1: a body, CPSM, was established having the general function of co-ordinating and supervising the activities of boards established under the Act. The relevant board for present purposes is the medical laboratory technician's board ("the board") By section 2: it is the duty of the board to prepare and maintain a register of the names, addresses and qualifications etc of all the names, addresses and qualifications etc of all persons entitled to be registered by the board. By section 3: a person shall be entitled to be registered by the board if he applies for registration and satisfies the board that, for present purposes, he holds an approved qualification. By section 3(3): if the board refuses an application for registration, the applicant may appeal to CPSM. By section 3(4): a person is entitled to be registered if he holds a qualification granted outside the UK and accepted by the board. Section 4 headed Approval of courses, qualifications and institutions, provides so far as is material:
"(1) subject to the provisions of this section, the board for any profession may approve for the purposes of this act (b) any qualification which, as a result of an examination taken in conjunction with a course of training approved by the board under this section is granted to candidates reaching a standard of the examination indicating in the opinion of the board that they have sufficient knowledge and skill to practice that profession (c) any institution which the board considers is properly organised and equipped for conducting the whole or any part of a course of training approved by the board under this section and they refuse its approval under this section or withdraw such an approval previously given and notice of the giving refusal or withdrawal of such an approval shall be served by the board on the body or person affected (2) where an application is made to a board for its approval under this for a course of training or qualification, the board shall send the application with its recommendations there on to the counsel CPMS and the counsel shall send the application recommendations together with its own recommendations there on to the Privy Council and the Privy Council shall determine whether the approval is to be given or refused. (8) if a board refuses or withdraws its approval under this section for an institution, the body or person affected may within one month from the date of service on him of notice of withdrawal appeal to the Privy Council. (11) any reference in this section to a body or person affected in relation to an approval is a reference to the body or person who applied for the approval."
[10]The Race Relations Act 1976 Section 1(1)(a):
"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 that other less favourably than he treats or would treat other persons"
Section 12 Qualifying Bodies:
"(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- (a) in the terms on which it is prepared to confer on him that authorisation or qualifications; or (b) by refusing, or deliberately omitting to grant, his application for it (2) In this section- (a) "authorisation or qualification" includes recognition, registration, enrolment, approval and certification; (b) "confer" includes renew or extend."
Section 54:
"(1) A complaint by any person ("the complainant") that another person ("the respondent")- (a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II; or (b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the complainant, may be presented to an [employment tribunal]. (2) Subsection (1) does not apply to a complaint under section 12(1) of an act in respect of which an appeal, or proceedings in the nature of an appeal, may be brought under any enactment"
Section 68(1) "(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 (6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all 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."[11]The Complaint In Anya v. University of Oxford [2001] IRLR 377 paragraph 9

Lord Justice Sedley said this:

"the industrial tribunal only has jurisdiction to consider a rule upon the act or acts of which complaint is made to it, if the applicant fails to prove that the act of which complaint is made occurred that is the end of the case, the industrial tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the originating application see Chapman v. Simon [1994] IRLR 273 at paragraph 33(2)(Lord Justice Bolcom) and paragraph 42 Lord Justice Peter Gibson."
[12]The key to this case it seems to us is a proper analysis of the Appellant's complaint contained in his Originating Application. The Tribunal exercises a statutory jurisdiction. In this case the Appellant bases his claim of direct racial discrimination on the Race Relations Act. That requires him to establish, first that he was treated less favourably by CPSM and/or the Privy Council than they treated or would treat other persons on grounds of his race, (section 1(1)(a)) and secondly, that such treatment was rendered unlawful under Part II of that Act. It is common ground that he can rely only on section 12 of the Act to show an unlawful act, subject to Part IV of the Act which was not relied on below.[13]He does not bring this claim against the board, which is plainly a qualifying body for the purpose of section 12, for refusing to register him. Had he done so, that complaint would have been doomed to failure, in our view, first because on the facts alleged he never completed an application to the board for registration and was not refused registration by the board and secondly, as a matter of law, since he would then have a right of appeal to CPSM under section 3(3) of the 1960 Act, his complaint to the Tribunal would be barred by section 54(2) of the Race Relations Act, subject to any argument under the Human Rights Act 1998 with which we are not concerned in this case.[14]His case, as articulated in his review application to the Tribunal and by Mr Kibling in this appeal, is instead based on the functions of CPSM and the Privy Council under section 4 of the 1960 Act. It is contended that in discharging these functions the Respondents are qualifying bodies within the meaning of section 12 of the Race Relations Act.[15]As to the less favourable treatment alleged for the purposes of section 1(1)(a) and section 12(1), the Appellant lists 9 allegations, apparently against CPSM only, in his Originating Application. The case has been reformulated by Mr Kibling on his behalf for the purpose of this appeal as follows:
"(i) from 1991 onwards, having physically accepted his application, CPSM refused to inform the Appellant whether his diploma was recognised for the purposes set our in the 1960 Act, (ii) from 1991 onwards, the Counsel refused to give the Appellant reasons for the refusal to consider his application for recognition, (iii) from 1992 onwards, CPSM repeatedly asked the Appellant to complete an irrelevant form (form B) seeking information which was not material to his application, (iv) from 1991 onwards, CPSM refused to correspond with the Appellant, (v) In March 1997 CPSM informed the Appellant that the (English) Diploma was not, and had never been accepted for the purposes of registration, (vi) from 1996 onwards the Privy Council were asked to intervene in accordance with its statutory obligation but it failed to do so. The Privy Council refused to intervene relying on the provisions of section 3 of the 1960 Act, (vii) The Appellant lodged in January 1999 a formal complaint against the Council to the Privy Council which was never investigated, (viii) As a consequence the Appellant suffered the detriment of not being able to move freely in the job market as a registered practitioner, of being paid a salary referable to his skills and qualifications, and of being prohibited from using the title state-registered"
As to limitation, the Appellant contends in his Originating Application that his complaint is of continuous, ongoing discrimination.[16]The Tribunal Decision The Tribunal's reason is said to suffer from the following flaws:(1) they have confused the German and English qualifications(2) they have concentrated on section 3 of the 1960 Act, which deals with the board's failure to register, not the complaint here, that is the question of acceptance or rejection of the English qualification under section 4 of the 1960 Act(3) they have not considered, on the face of their reasons, whether there was here a continuous act extending over a period (Race Relations Act section 68(7)(b)) such that the complaint was presented within the primary limitation period provided for in section 68 (1).[17]Mr Kibling further sought to argue, by amendment to the original grounds of appeal settled by the Appellant then acting in person, that the Tribunal failed to consider in the alternative whether, if the complaint was presented out of time, it was just and equitable to extend time under section 68(6). It seems apparent that that point was not taken below and we shall not allow it to be taken for the first time on appeal. See specifically Dintsu v. Westminster County Council [1991] IRLR 450. Particularly as further evidence would be required to explain the delay Jones v. Burdett Coutts School [1998] IRLR 521 .[18]Assuming those first three complaints to be made out, ought we to allow the appeal and remit the case for rehearing by a fresh Tribunal or are we in a position, exercising our powers granted by section 35(1) of the Employment Tribunals Act 1996, to affirm the Tribunal's conclusion that the application be dismissed, on the grounds that it is plainly and unarguably right, but for different reasons? See Dobie v.Burns International [1984] ICR 812 .[19]In our view, having considered the submissions of Mr Kibling, which were adopted by Mr Koskinen, who completed the submissions on his own behalf orally this morning, the latter course is correct, there being no further fact-finding required by the Employment Tribunal, for the following reasons:(1) the less favourable treatment complained of by the Appellant, as formulated by Mr Kibling, is not in our judgment rendered unlawful by section 12(1) of the Race Relations Act. Section 12(1) applies only to the discriminatory acts identified in (a) and (b) of the sub-section, that is discrimination in the terms on which a qualifying body is prepared to confer on the complainant the relevant authorisation or qualification, here registration, or by refusing to grant his application for it. That is not the act of discrimination alleged here; if it were it could only be directed to the board as we have earlier indicated. Further it is not suggested that in refusing to accept the English qualification either Respondent is treating the Appellant less favourably than others on grounds of his race. On his pleaded case, that qualification is not and never has been accepted by CPSM, assuming it to be a qualifying body for this purpose. It is not suggested that such a blanket refusal to recognise the English qualification involves disparate treatment according to the race or nationality of the qualification holder. It might be otherwise if this was an overseas qualification not recognised as being equivalent to a relevant UK qualification(2) Looking at the scheme of section 4 of the 1960 Act, it arises only where an application is made to the board for its approval of a qualification. No such application has been made by the Appellant on his case(3) The Appellant did not apply to the board for approval of his English qualification. He submitted it to CPSM and/or the board, which informed him that it had never been approved.(4) CPSM does not approve or refuse approval to a qualification. It passes on the board's recommendation, with its own recommendation, to the Privy Council for determination (section 4(2))(5) Section 12(1) of the Race Relations Act applies only to an authority or body which can confer an authorisation or qualification which is needed for or facilitates, engagement in a particular profession or trade. Neither CPSM nor the Privy Council can confer the relevant authorisation or qualification, in this case registration under section 3 of the 1960 Act; only the board can do so, subject to the right of appeal to CPSM. (20) It follows in our judgment that this claim is wholly misconceived. The discriminatory acts complained of are not rendered unlawful by section 12 of the Race Relations Act. Neither Respondent is a qualifying body for present purposes. The question of limitation simply does not arise because there is no unlawful act complained of for the purposes of section 68. (21) In these circumstances and for these reasons we shall dismiss this appeal.