DR KARUNANITHI RAJAMANI v GENERAL MEDICAL COUNCIL [2002] UKEAT 654_02_2810

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 654_02_2810

Case No Appeal No. EAT/654/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR KARUNANITHI RAJAMANIAPPELLANT

GENERAL MEDICAL COUNCILRESPONDENT

Before

His Honour Judge J Burke

Date 28 October 2002

[1]APPEARANCES For the Appellant The Appellant in person HIS HONOUR JUDGE J BURKE QC This is the preliminary hearing of Dr Rajamani's appeal against the Decision of the Employment Tribunal sitting at Stratford, chaired by Mr Leonard, and sent to the parties with Extended Reasons on 10 May 2002.

[2]By his Originating Application, Dr Rajamani complained against the President of the General Medical Council of delay by the GMC in granting him limited registration as a medical practitioner. His Originating Application was presented outside the primary three month time limit, but an interlocutory decision permitted his claim to proceed, despite the time that had passed. He brought his claim under section 12 of the Race Relations Act . Section 12(1) of the Act provides that:

"It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilities, engagement in a particular profession or trade to discriminate against a person - …. (b) by refusing, or deliberately omitting to grant his application for it;"

It was not in dispute that the GMC was, in relation to Dr Rajamani, a body which fell within section 12(1). Such discrimination is unlawful under part 2 of the Race Relations Act; and a complaint in respect of such discrimination may be presented to an Employment Tribunal, as Dr Rajamani presented his complaint.

[3]It is not necessary to go into the statutory framework of the registration of doctors for present purposes. The GMC has the power of registering and, indeed, duties, in respect of the registering of doctors; without registration a doctor is effectively not able to practise in the United Kingdom. Doctors who obtain their qualifications overseas may be granted limited registration under the Medical Act 1983 if certain conditions are satisfied; and such a limited registration lasts for a limited duration. Dr Rajamani applied for a renewed limited registration on 6 December 2000. He was eventually granted such limited registration on 1 March 2001. Normally, such applications, the Tribunal found as a fact, are processed in five to seven days; but in his case it took three months, and that was to his detriment because during the relevant period of delay, he was not able or should not have been able to practise.

[4]The Tribunal was asked by the GMC to conclude that delay in granting the limited registration sought was not refusing or deliberately omitting to grant it and that, therefore, there was no act which fell within section 12(1) which could be discrimination. The Tribunal did not decide the case on that issue; it did not do so because it reached a decision in favour of the GMC on the merits; and it reached that decision on this basis. It found that the evidence as to the explanation for the delay put forward by the GMC was compelling; the explanation was that Dr Rajamani's application was one of hundreds of applications which were delayed due to computer problems arising from the attempts of the relevant part of the GMC, unfortunately precisely at about the time of Dr Rajamani's application, to transfer 2.5 million records on to a new computer system. As so many bodies have found, such an exercise often proves much more troublesome than it is expected that it would be.

[5]The Tribunal found that that was the case here, that the delay in Dr Rajamani's application was caused by the computer problems which affected him and hundreds of others, and that there was nothing in the evidence which suggested that Dr Rajamani was dealt with on any different basis from any others or had been dealt with, in the delay of which he complained, on racial grounds.

[6]The Tribunal decided this case before the 2001 Regulations as to the burden of proof, but that would have made no difference because, in paragraph 11 of their Decision, the Tribunal found in terms that:

"A wholly credible explanation of the delay has been offered to this tribunal and there is not one piece of evidence to suggest that the applicant was treated on a different basis to the hundreds of other doctors placed in the same position and nothing to indicate that his race played any part."

[7]Dr Rajamani put forward eight grounds in his Notice of Appeal, which he tells us was drafted on his behalf by a barrister, or at least by a practising lawyer. The first ground suggests that the Tribunal erred when it said that Dr Rajamani had neglected the opportunity to obtain and present evidence through the use of a Race Relations Act questionnaire. The implication of this ground is that Dr Rajamani did indeed use a questionnaire; but he has told us today that, although he did address to the GMC a letter requesting very broad disclosure of documentation, he did not actually use a Race Relations Act questionnaire. Therefore, it seems to us that this ground - ground 1 - does not contain within it any arguable point of law. As to the request for disclosure of documentation, we will come to that in a moment, when we come to deal with the second ground.

[8]The second ground is that Dr Rajamani, in a letter of 7 January 2002, requested the Tribunal to go through a list of doctors who had applied for registration during the relevant period, and through details of all of their nationalities, ethnic origin, the dates on which their registration had been granted, and matters of that kind. Dr Rajamani complains that that request made to the Tribunal, in effect a request to order the GMC to disclose documentation along those lines, was not dealt with.

[9]The problem with this point is that it is not suggested that, at the hearing in April 2002, which gave rise to the Decision now under appeal, Dr Rajamani, either again, sought such disclosure, or sought an adjournment pending such disclosure. He appears, from the decision of the Tribunal, to have mentioned that there might be other documents which would help him prove his case, but if he had made an application for disclosure, which application had not been granted, prior to the hearing, then his remedy was to appeal the Tribunal's failure to grant the Order for disclosure. That was not done. There is no appeal other than the appeal against the Decision after the hearing of 19 April, sent to the parties on 10 May. Any appeal against any earlier Order or failure to grant an Order would now be well out of time; and we do not see that it can arguably be suggested that the Tribunal erred in law in proceeding as it did on 19 April, without the documents which Dr Rajamani would have liked to have had, but had not got. We should not be taken to be accepting that any such Order would have been made if the point had been pursued by Dr Rajamani; it was plainly not pursued.

[10]In the third ground, Dr Rajamani complains that the Tribunal erred in law in saying that there was no evidence that he was treated on a different basis to other doctors, in terms of race. He refers to an internal memo of the GMC, which referred to Dr Rajamani's health; but there was no evidence before the Tribunal either that his health, as opposed to the computer problems, had caused the delay in his application for registration. The Tribunal accepted the evidence of the GMC that it was the computer problems which caused the delay in this case; and there is nothing in ground 3 which gives rise to an arguable ground of appeal.

[11]In ground 4, Dr Rajamani complains that the Tribunal erred in saying, in paragraph 4 of the Decision, that the delay in registration did not have the serious consequence it might otherwise have had. He says that the delay caused him enormous suffering. We would be entirely prepared to assume that the delay brought substantial consequences for Dr Rajamani; but whether he is right or not about that, any error of this type on the part of the Tribunal could not arguably affect their decision on the discrimination issue. On that issue, the Tribunal had to decide whether there was or was not the discrimination relied upon by Dr Rajamani. The effects of the discrimination were quite irrelevant.

[12]In the fifth ground of appeal, Dr Rajamani contends that the Tribunal erred in accepting unsubstantiated evidence from the GMC. He says that the Tribunal was under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, and, in the absence of documents, the Tribunal should not have relied on what the GMC said. That, too, gives rise to no arguable ground of appeal. The Tribunal had the evidence in front of them; it was for them to decide what evidence they wished to accept, what evidence they wished to reject and what weight they wished to give to any piece of evidence. It is not a rule of law that any particular piece of evidence needs to be substantiated, in the sense that it needs to be backed by documentation.

[13]Similarly, in ground 6, the complaint is that there was no corroboration of any of the GMC's evidence. There is no rule of law in the area with which we are dealing today which requires that the explanation given by a respondent in a case in which, on the face of it, there may be thought to have been differential treatment, or unfair treatment, to rebut an allegation of discrimination needs to be corroborated. Again we repeat: the Tribunal was entitled to give the evidence of the GMC whatever weight they thought right; and we are in no position to go behind the Decision of the Tribunal on the facts.

[14]In the seventh ground, Dr Rajamani complains that the Chairman did not address the need for disclosure of further documentation and, indeed, that the Tribunal, by its Chairman, or the Tribunal as a whole should have considered of their own volition that further disclosure was necessary. This is, in reality, the same point as that which arises in ground 2, with which we have already dealt. It was not necessary for the Chairman to set out on a course of calling for further disclosure from the GMC at the hearing. It was for Dr Rajamani to pursue any further disclosure that he wished to obtain from the GMC before the hearing so that, if there were any relevant documents to be obtained by disclosure, they were there on the day of the hearing; that, it seems, he did not do.

[15]Finally, in ground 8, it is suggested that the Tribunal was biased in accepting the evidence from the GMC that all applicants for registration were dealt with on exactly the same basis. There is no indication of bias; the evidence that was given was evidence which the Tribunal could have rejected, or could have accepted. The Tribunal decided to accept it; that was a decision for them on the facts.

[16]Today, Dr Rajamani has added to and explained those grounds; he has complained that a bundle of documents was sent to him only on the day before the hearing; but those were computer records of his own history with the GMC, which mostly related to his examinations and his health, and did not in any sense bear on the issue of delay, and we see no basis on which it could be said that any prejudice was caused to him by that.

[17]He has said, too, that he was not allowed to put his case properly, and was not given enough time. That, of course, is not raised in his Notice of Appeal, and has been raised for the first time this morning, but, as far as we can see from the Decision, the matter was fully canvassed before the Tribunal. The Tribunal had to decide whether they accepted the GMC's explanation, and they did. We have some sympathy for Dr Rajamani; he must have been upset by the delay in obtaining his limited registration; he says that he suffered as a result; and we see no reason to think that that is not so; but we are afraid to say that, despite the sympathy which all three of us feel for him, we cannot see any error of law in the Decision of the Tribunal, and thus this appeal is dismissed.