DR A SEN v THE BRITISH COUNCIL [2002] UKEAT 1456_01_2705

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1456_01_2705Case No Appeal No. EAT/1456/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR A SENAPPELLANTTHE BRITISH COUNCILRESPONDENT
Before
Ms Recorder SladeDate 27 May 2002
[1]APPEARANCES For the Appellant DR P SEN (Representative) MS RECORDER SLADE QC: This is the preliminary hearing of an appeal by Dr A Sen against the dismissal of her complaints of race discrimination against the British Council. Dr Sen qualified as a doctor in India in 1982 from the Government Medical College in Jabalpur. She applied for sponsorship from the British Council to continue her training in this country. She was refused such sponsorship because her medical qualification had not been obtained from a list of the first category medical schools in India which had been approved by the British Council. Sponsorship provided a route to limited registration under the Medical Act 1983 .[2]Dr Sen complained that that decision of the British Council was both directly and indirectly discriminately against her on grounds of race. Her husband, Dr Sen, has appeared for her before us today and before the Employment Tribunal. He complains that the British Council in adopting the criteria which it did in rejecting her, applied a criterion which was more stringent than that required by the General Medical Council for limited registration of doctors under the Medical Act 1983 . Section 22 of that Act provides that:
"…an 'acceptable overseas qualification' means any qualification granted outside the United Kingdom and for the time being accepted by the General Council for the purposes of this section as furnishing a sufficient guarantee of the possession of the knowledge and skill requisite for the practice of medicine under the supervision of the person who is registered as a fully registered medical practitioner."
[3]It appears from the decision of the Employment Tribunal that the General Medical Council accepted and adopted the World Health Organisations' World Directory of Medical Schools for the purpose of considering whether an individual doctor had passed the examination necessary for obtaining an acceptable overseas qualification or qualifications (see paragraph 9(2)(b) of the decision of the Employment Tribunal). We understand that there are about 135 medical schools in India which are on World Health Organisation World Directory list and it is only a fraction of those, namely the top 32 medical schools, which are on the list kept by the British Council as qualifying individuals for sponsorship by them. It appears that the sponsorship criteria adopted by the British Council were reviewed and revised in 1996 or 1997. The Tribunal's decision records in paragraph 9(6):
"In 1996 there was a change in policy by the GMC for doctors who qualified overseas. The GMC requested sponsors to provide objective evidenced criteria for their sponsorship schemes by 30 June 1997."
[4]So far as the British Council, which is merely one of several sponsors, is concerned, they prepared objective criteria and adopted what has been called division 1, the top 32 medical schools, as being of an acceptable standard to receive their sponsorship. It appears that the basis upon which they selected the 32 medical institutions, was a paper in the National Medical Journal of India, published by M Arora and others in 1996. In accordance with that paper the Appellant's, Dr Sen's, college at Jabalpur was ranked at 86 out of 96. Because Dr Sen had not received a qualification from one of the top 32 medical institutions as assessed in the article published in 1996 she was therefore rejected for sponsorship by the British Council.[5]Dr Sen attacks the conclusions reached by the Employment Tribunal in a number of respects. First it is said that the Tribunal erred in law in determining that the application of the requirement or condition that an applicant from India be educated at one of the main 32 top medical schools was not indirectly discriminatory. The Employment Tribunal considered the question of indirect discrimination in this respect in its decision at paragraph 11 sub-paragraphs (6) and (7). It had concluded at sub-paragraph (5) that the comparative pool for the indirect discrimination exercise was candidates from medical schools worldwide. However it concentrated in sub-paragraph (6) on the percentage success rate of Applicants amongst overseas doctors. In our judgment it is arguable that the Employment Tribunal erred in law in its approach to the consideration of indirect race discrimination. It was only applicants from India who had to satisfy the additional criterion of having been educated at named 32 medical schools out of the much larger number of medical schools considered acceptable by the General Medical Council. We accordingly consider that it is arguable that the Employment Tribunal erred in law in its approach to the consideration of whether there had been indirect race discrimination in this case.[6]Secondly, it is said that the criterion adopted by the British Council was directly discriminatory on the grounds of race since it was only applicants from India who had to satisfy the additional hurdle to which we have referred. The decision of the Employment Tribunal shows that applicants from certain other countries had to satisfy certain other criteria, for example we see from paragraph 9 sub-paragraph (10) of its decision that the British Council adopted country specific criteria only for India, Syria, China and Libya, but it was only in the case of India that they adopted the third party assessment process by college. The process which was devised for Syria, China and Libya involved personal investigation by the Respondents officers. Accordingly we consider that it is arguable that there was direct race discrimination against Dr Sen in the application of a country specific additional hurdle in this case.[7]Further it is said that the test adopted by the British Council, namely the adoption of the article in the journal to which we have made reference, was not an appropriate test for achieving the justification which was advanced by the British Council. The justification was to ensure the high quality of sponsored individuals. However the article upon which the British Council relied was one published in 1996, based on studies from 1994 to 1996. Dr Sen, qualified in 1982. The reputation and quality of any educational institution no doubt can change over time. We consider that it is arguable that the criterion adopted was not appropriate to achieve the justification which the British Council advanced in support of its selection criteria.[8]Further, in dealing with this point the Tribunal said in its decision at paragraph 11(k)(8)(iv), that:
"…the Tribunal accepted the respondent's evidence that since India was a stable community the information of the medical institutions provided in the mid 1990s was applicable to the mid- 1980s in those circumstances when the applicant qualified."
[9]With respect to this Employment Tribunal we consider that it is arguable that that proposition is a logical non-sequitur. This country too is no doubt a stable community but as we have referred to already, no doubt the quality of educational and medical institutions can change over a period of 10 or 12 years so the fact that an assessment was made in 1996 does not necessarily, on the basis of the Tribunal found, mean that that institution had that same qualities 10 or 12 years earlier.[10]Accordingly, we consider that there are issues raised in this appeal which merit consideration at a full hearing and we give permission for it to go to a full hearing.