MR T K BHADRA v THE GENERAL MEDICAL COUNCIL [2002] UKEAT 1489_01_2806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1489_01_2806Case No Appeal No. EAT/1489/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T K BHADRAAPPELLANTTHE GENERAL MEDICAL COUNCILRESPONDENT
Before
Mr Justice Maurice Kay Ms G Mills Miss D WhittinghamDate 28 June 2002
[1]APPEARANCES For the Appellant MR J AUBURN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme and MR T K BHADRA (The Appellant in person) THE HONOURABLE MR JUSTICE MAURICE KAY This appeal is listed before us today as a Preliminary Hearing. By it, Mr Bhadra, who is a Fellow of the Royal College of Surgeons, seeks to appeal against a decision of an Employment Tribunal which sat at London Central on 11 October 2001. That decision was to the effect that the Employment Tribunal did not have jurisdiction to determine any of Mr Bhadra's complaints.[2]The brief chronology of what had occurred is that Mr Bhadra's registration as a practising Doctor was suspended in 1998. In 2000 conditions were imposed upon his registration. In December 2000 an assessment was carried out in order for the Professional Conduct Committee of the General Medical Council (GMC) to reconsider those conditions. On 29 January 2001 the registration was confirmed but subject to slightly varied conditions.[3]The Originating Application which Mr Bhadra lodged with the Employment Tribunal is dated 26 June 2001. When it was brought to the notice of the General Medical Council it became apparent that the Employment Tribunal would have to consider a preliminary issue as to jurisdiction. The complaint of Mr Bhadra was under the Race Relations Act 1976 in that he complained that he had been discriminated against on grounds of race. On 20 August 2001 an Interlocutory Hearing was conducted by a Chairman sitting alone. It resulted in a letter being sent to the parties which defined the issues in the case and directed that a Preliminary Hearing should be held. The issues were defined in the following terms:
"(1) whether the Respondent unlawfully discriminated against the Applicant contrary to sections 1(1)(a) and 12 of the Race Relations Act 1976 by (i) the way the assessment was carried out on 15 December 2000 (ii) by failing the Applicant on the assessment made on 15 December 2000 (iii) by imposing conditions on the Applicant which meant he could not get a job (2) whether the Applicant's complaint about any of the alleged acts of race discrimination was made out of time and, if so, whether it would be just and equitable to extend time."
The Chairman who conducted the Preliminary Hearing decided that there was a preliminary issue of law as to whether the Tribunal had jurisdiction to entertain the complaint of direct race discrimination against the GMC in respect of acts of the Professional Conduct Committee by reason of Section 54(2) of the Race Relations Act 1976 and the statutory right of appeal to the Judicial Committee of the Privy Council.[4]It was with that preliminary issue of law that the Employment Tribunal was concerned on 11 October 2001. The jurisdictional problem arises in the following way. Section 12 of the Race Relations Act provides that:
"It is unlawful for an authority or body which can confer an authorisation for 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 qualification; or (b) by refusing, or deliberately omitting to grant, his application for it; or (c) by withdrawing it from him or varying the terms on which he holds it."
It is obvious why Mr Bhadra was seeking to rely on Section 12. Section 54 then goes on to provide that a complaint by any person that another person has committed an act of discrimination against him which is unlawful by virtue of, amongst other things, Section 12, or by virtue of Section 32 of 33 is to be treated as having committed such an act of discrimination against the complainant may be presented to an Employment Tribunal. However, Section 54(2) then goes on to provide that Section 54(1) does not apply to a complaint under Section 12(1) or an act in respect of which an appeal, or proceedings in the nature of an appeal, may be brought under any enactment. Under Section 40(1) of the Medical Act 1983 it is provided:
"The following decisions are appealable decisions for the purposes for this section, that is to say – (a) a decision of the Professional Conduct Committee under section 36 above giving a direction for erasure for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration."
That statutory appeal, under Section 40 of the Medical Act , lies to the Judicial Committee of the Privy Council. That is the statutory framework in which the Employment Tribunal was considering whether it had jurisdiction to hear Mr Bhadra's complaint of race discrimination.[5]The case for the General Medical Council was that since the defined issues went to the issues of assessment and condition, and since they had involved acts of the Professional Conduct Committee, the appropriate route for challenging the matters complained of was by way of appeal to the Privy Council. The Employment Tribunal accepted that short point. It is against that finding of a lack of jurisdiction that Mr Bhadra now seeks to appeal.[6]The presentation of his appeal here today has taken a somewhat unusual form. We first heard submissions from Mr Auburn, who has helpfully and capably represented Mr Bhadra under the ELAAS Scheme. We then agreed to allow Mr Bhadra to add some submissions of his own. We have, of course, considered both sets of submissions. Mr Auburn's submission is a straightforward one. He submits that, quite apart from the complaint against the decisions of the Professional Conduct Committee, there was before the Employment Tribunal a complaint against the Post Graduate Dean. The essence of that complaint was described by Mr Auburn as being a complaint of discrimination by preventing the professional progress of Mr Bhadra by, for example, preventing his attendance at clinical meetings and denying him appropriate opportunities for retraining. Mr Auburn then submits that that aspect of the complaint is not covered by Section 40 of the Medical Act and therefore the Employment Tribunal has jurisdiction to consider it.[7]We can well conceive of situations, and indeed at least one of us is familiar with situations, in which Doctors have been able to bring cases of discrimination to Employment Tribunals because they fall outside the alternative statutory appeal provided for in the Medical Act . Such a phenomenon is readily acknowledged by us. The question is whether the present case arguably falls into that category, or may conceivably do so.[8]The reality is that when the matter came before the Employment Tribunal the Originating Application, the form IT1, did not reflect or spell out the allegation which Mr Auburn seeks to place at the heart of his submissions. We are told, and we accept, that on the day of the hearing the Tribunal was receptive to the suggestion that the matters to be considered might go outside those previously defined at the Interlocutory Hearing. It seems that a point came at which the Tribunal invited Mr Bhadra to set out in writing, in a comprehensible form, the allegations which he sought to pursue. In addition, we are told that Mr Bhadra made some oral submissions.[9]We have examined the documentation that was before the Employment Tribunal. We are bound to say that whilst it is extensive, in our judgment, it did not place fairly and squarely before the Employment Tribunal the allegations upon which Mr Auburn now seeks to found this ground of appeal. For example, one of the letters referred to was a letter from Mr Bhadra to the Employment Tribunal Secretary dated 24 August 2001. It is a very long single spaced letter running to some ten pages; on the second page of it there is a very laconic reference to the Post Graduate Dean and a cross reference to an earlier letter; on the third page there is reference to the fact that Mr Bhadra would like to examine the Dean as a witness. In the summary at the end of the letter there is a reference to:
"the officials of the GMC who obstructed me getting full relevant information at various stages, the PG Dean etc as above."
The document that was prepared by Mr Bhadra in the course of the hearing at the invitation of the Employment Tribunal contains this reference:
"I was victimised by the GMC's agent, the Dean also and is still continuing within the meaning of Section 32 of RR Act 1996 started on 23.6.99 albeit it was less in late '99."
[10]When Mr Bhadra presented his appeal documentation to this Appeal Tribunal it included a long letter setting out his grounds of appeal. Again, it was extremely laconic as to any complaint about any role of the Post Graduate Dean. There is a brief cross reference to previous documentation. There is a request that he be permitted to add the Post Graduate Dean as a party "for her part of the liability/responsibility". Because of some of the allegations in the Notice of Appeal the Registrar obtained an affidavit from Mr Bhadra in which he set out his criticisms of the conduct of the hearing in the Employment Tribunal. He made some criticisms of the Chairman but made no complaint either in that affidavit or the Notice of Appeal that any oral submissions that he had made had been ignored. In the normal course of events that affidavit was sent to the Chairman of the Employment Tribunal for comment. He has commented upon it but, of course, he has not had the opportunity to comment on the suggestion which is now made, namely that any deficiency in the documentation before the Employment Tribunal was, or may have been, made good by the oral submissions which Mr Bhadra was permitted to make.[11]We have to ask ourselves whether we find an arguable error of law in the decision of the Employment Tribunal. In our judgment the Employment Tribunal dealt with the matters that were fairly and squarely and clearly put before it. We cannot criticise that Tribunal for failing to address an issue, the one advanced by Mr Auburn, which in our judgment was not fairly and squarely and clearly before the Employment Tribunal. An Employment Tribunal cannot be expected to divine subtleties from a morass of paper and oral submissions if they are not appropriately highlighted and expressed. We are sorry to say that in our judgment the point sought to be made by Mr Auburn was not intelligibly before the Employment Tribunal and was not intelligibly before us today until Mr Auburn explained it in oral submissions.[12]In all those circumstances we have come to the conclusion that the Employment Tribunal reached a correct decision of the preliminary issue of jurisdiction on the issues that were clearly before it. This is not a case where it can be said that the Employment Tribunal erred by failing to investigate a point which ought to have been obvious to any Employment Tribunal. What is sought to be advanced simply does not fall into that category. It follows from what we have said that in our judgment the appeal, as advanced to us, does not contain arguable grounds. Accordingly we shall dismiss the appeal at this stage. We are told that Mr Bhadra has taken some steps towards appealing to the Privy Council. We, of course, say nothing about the merits of any such appeal. We understand that although some steps have been taken such an appeal has not yet been lodged by his solicitors.