THE BRITISH MEDICAL ASSOCIATION v MR RAJENDRA CHAUDHARY [2004] UKEAT 1351_01_2403

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 1351_01_2403Case No Appeal No. UKEAT/1351/01/DA & UKEAT/0804/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE BRITISH MEDICAL ASSOCIATIONAPPELLANTMR RAJENDRA CHAUDHARYRESPONDENT
Before
Mrs Justice Cox Mr J C Shrigley Ms B SwitzerDate 24 March 2004
[1]APPEARANCES For the Appellant MR JOHN CAVANAGH QC and Mr TERENCE RIGBY (of Counsel) Instructed by: British Medical Association (North Thames Office) BMA House Tavistock Square London WC1H 9JP For the Respondent MR JOHN HENDY QC and MR GHAZAN MAHMOOD (of Counsel) Instructed by: Messrs Birchfields Solicitors 142b Cheetham Hill Road Manchester M8 8PZ SUMMARY Race Discrimination Race discrimination – legal points on inference leading to indirect discrimination and on victimisation. Compensation – assessment of loss of a chance and calculation of award. THE HONOURABLE MRS JUSTICE COX Introduction In March 2000 the Respondent to this appeal, Mr. Rajendra Chaudhary, filed an originating application in the Manchester Employment Tribunal complaining of unlawful racial discrimination against him by his professional association and trade union, The British Medical Association (BMA), in refusing his requests for their advice, assistance and support in connection with allegations of racial discrimination he was making against the regulatory and professional medical authorities. By the time his complaint was heard in March 2001 the Tribunal had to consider and determine complaints of direct, alternatively indirect discrimination and victimisation. All the complaints were resisted.[2]The hearing lasted 15 days, during which eight witnesses gave evidence, six witness statements were read and the Tribunal considered a very substantial number of documents. Both parties were represented by counsel and, at the conclusion of the evidence, the Tribunal had the benefit of lengthy and detailed written submissions from both counsel on the facts and the law.[3]In their Reserved Decision, promulgated on 24 September 2001, the Tribunal found unanimously that the BMA had unlawfully indirectly discriminated against and victimised Mr. Chaudhary, contrary to the relevant provisions of the Race Relations Act 1976 . Subsequently a remedies hearing took place on dates in January and May 2002. In their Reserved Decision, promulgated on 19 June 2002, the Tribunal awarded to Mr. Chaudhary the total sum of £814,877.41 by way of compensation, which sum included £53,010.30 interest.[4]The BMA now appeal against both these Decisions. The appeal proceedings have been somewhat protracted and the points raised are numerous and complex. The grounds of appeal are extensive and have been the subject of amendment. In addition Mr. Chaudhary has cross-appealed on the basis that, if the grounds of appeal relating to the finding of indirect discrimination succeed, the Tribunal could and should have found on the evidence that there had been direct racial discrimination against him. On the direction of the President the parties prepared and essentially agreed a list of issues for this hearing. This list, whilst most helpful in focussing our attention, is also extensive, there being one preliminary issue and a total of 39 substantive issues to be resolved, although a number of them overlap. We shall express our conclusions in this case in due course by reference to that list (the passages in that list which are in parenthesis and underlined are amendments prepared by Mr Chaudhary's Counsel to the list originally prepared by the BMA's Counsel).[5]The hearing before us lasted four days. One of the main grounds of appeal against the decision on indirect discrimination was that the inference drawn by the Tribunal in this case was perverse, in that it was not supported by the evidence and/or was perverse in light of their primary findings of fact and/or inadequate reasons were given for their conclusion. We therefore had to consider a vast quantity of documentary evidence and the regrettable length of this judgment reflects the necessity to refer to that documentation in order to determine the perversity challenge.[6]We are indebted to all counsel for the considerable assistance they have given us in this appeal. The skeleton arguments, whilst necessarily lengthy, were of considerable help in our preparatory reading and the succinct oral submissions on both sides enabled this appeal to be heard and concluded efficiently in the time allowed. Relevant Background to the Tribunal's Decision on Liability We include in this section of the judgment many of the Tribunal's primary findings of fact, which were not in dispute.[7]Mr. Chaudhary was a registered medical practitioner of Indian ethnic origin. He qualified in India in 1982 and, after five years of post-graduate training in India, commenced training in the U.K. in 1987. He was awarded his FRCS in Edinburgh in 1988 and, the following year, received the FRCS in London. His specialism is urology and, in 1991, he obtained a diploma in urology from the Institute of Urology in London. Between April 1989 and January 1991 he worked as a registrar in general surgery in Scotland, one year of which training counted towards his training in urology. For seven months between January and August 1991 he was an honorary registrar in urology at Peterborough. On 16 December 1991, after open competition, he obtained a post in North Manchester General Hospital as registrar in urology and his appointment ended, after three years and seven months, in July 1995. The advertisement for this post, placed by the North West Regional Health Authority, described the post as being "Royal College approved" and as offering "excellent training in Urological Surgery" with two consultant urologists. A representative of the Royal College of Surgeons (RCS) was on the appointments panel. One of the consultant urologists, Mr. Costello, described it as a post which "has always been recognised as one of the best registrar posts in urology due to the clinical material and experience available to registrars in training" (bundle 2 at page 651, (2/651)). The RCS is responsible for setting and supervising standards of surgical training and for inspecting and approving training posts in hospitals and for supervising the education of the trainees and conferring qualifications such as the FRCS. It carries out these functions through a network of appointed regional advisers who advise the post-graduate Deans on matters relating to their specialties in their particular areas. There is a joint committee of the Royal Surgical Colleges of England and Scotland called the Joint Committee on Higher Surgical Training (JCHST), which operates by means of advisory sub-committees. There is a specialist advisory committee (SAC) for each of the surgical disciplines, including urology.[8]From North Manchester Mr. Chaudhary went to Christie Hospital in Manchester, where he worked as a researcher in urology for six months between August 1995 and February 1996. On 3 January 1996, whilst he was in this research post, he obtained settled status and became entitled to remain indefinitely in the U.K. On 19 February 1996 he was appointed as a locum senior registrar in urology in Portsmouth. This appointment terminated in January 1997.[9]The BMA, of which Mr. Chaudhary was a member, is a professional association for doctors and is registered as a trade union. Membership is voluntary and a large majority of doctors in the U.K. are members. There are a number of elected committees of the BMA, which represent the different occupational groups within the BMA's membership. The principal committees representing occupational groups within the NHS are(1) the Central Consultants and Specialist Committee (CCSC), which represents all career grade doctors in hospitals;(2) the Junior Doctors' Committee (JDC) which represents doctors in training; and(3) the General Practitioners' Committee (GPC) representing general practitioners. The BMA provides a number of services and benefits to individual members in return for their subscriptions. These are described in a Directory of Membership Services, which is updated each year. One such benefit is the provision of advice in relation to professional problems raised by members and, if considered appropriate, assistance and support for members in litigation pursued by them. Such support and assistance is usually provided in cases where there are considered to be reasonable prospects of success or where there is a point of principle involved, which affects or could affect a large number of their members. Cases come to the BMA legal department for consideration primarily from Industrial Relations Officers (IROs), who work in a network of regional offices throughout the country and are usually the first point of contact for a member with a problem.[10]Mr. Chaudhary wanted to become a consultant in urology. By the spring of 1996 he was a locum senior registrar. His period of training at North Manchester had gone well, as evidenced by the assessments of him by the two consultant urologists, which were before the Tribunal. Mr. Costello regarded him as an "excellent technician" who was "well motivated", "very reliable both in his clinical and general application" and showed "characteristics of sound professional leadership" (2/772). Mr. Garland assessed him as "enthusiastic, diligent and conscientious" and had "no doubt that he is consultant material" (2/644).[11]In March 1992, whilst Mr. Chaudhary was at North Manchester, the Commission for Racial Equality, pursuant to their powers under the Race Relations Act 1976 , decided to conduct a formal investigation into consultant and senior registrar appointments in the NHS because of persistent complaints, supported by some evidence, that ethnic minority doctors were being discriminated against in their applications for senior posts in NHS hospitals, particularly in some specialties (3/906). The Tribunal referred to their published report at paragraph 29 of their Reasons. Although urology was not one of the five specialties considered, the CRE found disparities in success rates for different ethnic groups which were "so marked and consistent and the omission of procedural safeguards so routine that the possibility of discrimination cannot be ignored" (3/905). As the Tribunal found, a number of recommendations were made, to the Royal Medical Colleges and others, with a view to further changes in the arrangements for training and recognition of training. The "others" referred to included the BMA, who had cooperated with and provided advice during the CRE investigation. One of the specific recommendations made (see 3/909) was that the BMA should:
"10. Address the concerns of its members about racial inequality in the profession, support members who believe they have suffered discrimination and consider appropriate action. 11. Provide adequate guidance and training on equal opportunities for its members."
[12]One of the matters referred to by the CRE in their report was the publication, by the NHS Executive on behalf of the Department of Health in 1996, of new guidelines for specialist medical training and career development for junior doctors following the recommendations of the 1993 Calman report on "Hospital Doctors: Training for the Future". These guidelines, the CRE considered, would "present an opportunity to ensure that the deficiencies highlighted in part 2 of this report are corrected" (3/906). This is a reference to what has been referred to as the "Orange Book", which is at the heart of the issues in this case and which the Tribunal refer to at paragraphs 27 and 31.[13]Before the Orange Book was published however another report had been issued and implemented by the U.K. Health Departments, the Joint Consultants' Committee (on which the BMA is represented) and the chairmen of Regional Health Authorities, entitled "Hospital Medical Staffing – Achieving a Balance – Plan for Action" (AAB). The report recommended that on implementation (this occurred in July 1989 – see 3/852) all newly-appointed registrars should be designated as "career" or "visiting" registrars and that there should be no distinction between posts suitable for career registrars and those suitable for visiting registrars. Career registrars were those eligible to pursue a career in the U.K. and regions were to be given quotas for career registrars in each specialty, which were not to be exceeded, the aim being to control the numbers of people training to be consultants in a particular specialty. All suitably qualified doctors, regardless of immigration status, were to be entitled to apply for a registrar post and if the successful candidate were an overseas doctor with appropriate registration but without the right of indefinite residence in the U.K., they would be appointed as a visiting registrar. No national appointment restrictions existed on the number of visiting registrars. Paragraph 15 of AAB provided (3/847):
"15. It is not intended that regions should make a distinction between those posts suitable for career registrars and those for visiting registrars. Indeed, it is desirable that career and visiting registrars should wherever possible be on the same rotations. Where it is impracticable for a post to be linked into a rotation, it should in all but the smallest specialties be 'grouped' for manpower planning purposes with one or more other unlinked posts in such a way that each of the posts is filled on some occasions by a visiting registrar and on others by a career registrar. But however regions elect to stay within their quotas, all registrar posts must be of comparable educational value, and carry appropriate Royal College approval"
It is common ground that, at the time of his appointment to the North Manchester post in 1991, Mr. Chaudhary was a visiting registrar.[14]The Orange Book was published in March 1996, when major changes were being made to the arrangements for post-graduate training of doctors in England and Wales. A new system was to apply as from 1 April 1996, under which there was to be a new grade of "Specialist Registrar". There was a transition period for moving from the old to the new system. The Post-Graduate Dean was to be responsible for placing existing registrars and senior registrars on to an appropriate training programme at the appropriate point on the programme. Once someone had been placed s/he was to be given either a National Training Number (NTN) or a Visiting Training Number (VTN) depending on the applicant's existing immigration status. A specialist registrar who thereafter completed his/her training would be entitled to the award of a Certificate of Completion of Specialist Training (CCST).[15]The Orange Book indicated certain people who had an automatic right to be entered on the Specialist Registrar grade. The Tribunal referred to this at paragraph 31. So far as is relevant, the following provisions applied (3/870):
"Who is eligible to enter the grade during the transition period? 8. Entry during transition is open to the following groups provided individual candidates satisfy the minimum college or faculty criteria: (a) senior registrars and honorary senior registrars; and (b) career registrars and honorary registrars who hold either a substantive career registrar appointment or an honorary registrar appointment (for example, lecturers) with staffing and educational approval (by the Royal College or Faculty) recognised by the postgraduate dean; this includes substantive career registrars in this category who are now occupying senior registrar posts on a locum basis; and (c) … (d) … (e) overseas doctors who satisfy the criteria set out in Part Three. This includes doctors who were formerly overseas doctors and who have, before or during transition, acquired or are entitled to a right of indefinite residence in the UK (see paragraphs 41-43) … Part Three Transition arrangements for overseas doctors …. Overseas doctors who hold a right of indefinite residence in the UK 41. … 42. Visiting registrars who have acquired a right of residence before or during transition may enter the specialist registrar grade during transition if: (a) they hold the minimum entry requirements or equivalent of the relevant College or Faculty; and (b) they can be assessed by the postgraduate dean, with appropriate advice from the College or Faculty, as having become visiting registrars through an appointment process which conformed to the criteria and conditions then in force for appointment to an NHS career registrar post. These doctors will be appointed as SpRs and given an NTN."
It is common ground that paragraph 42 refers back to paragraph 8 (b) and the important words, in the context of the issues in this appeal, are "with staffing and educational approval by the Royal College or Faculty recognised by the Post-Graduate Dean".[16]Mr. Chaudhary considered that he satisfied the Orange Book criteria for transition and was entitled to an NTN under the new scheme. He therefore applied in April 1996 to Dr. Platt, the regional Post-Graduate Dean for Wessex, which covered Portsmouth, to be admitted to the Specialist Registrar grade and to be allocated an NTN. However in July 1996 Dr. Platt turned his application down. He gave as his reason the fact that Mr. Chaudhary's registrar post in North Manchester was not approved by the Specialist Advisory Committee (SAC) in urology and that Professor Mundy (then Chairman of the urology SAC) had determined that only where individuals have held SAC approved posts will they get an NTN.[17]Thus began the train of events which led, ultimately, to these proceedings. We shall merely summarise them here, in order to complete the background to the Tribunal's Decision and this appeal. Mr. Chaudhary, surprised by and concerned about the refusal of his application, sought to challenge it. He asked for the BMA's help. The matter was reconsidered by Dr. Platt in January 1997 at what was curiously described as an "appeal" but seems in fact to have been a reconsideration of the matter by Dr. Platt with the assistance of others on an "appeal committee". His decision remained unchanged however and it was said to be the unanimous view of the panel that his 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 approved by the SAC in urology for higher specialist training. Mr. Chaudhary was advised that he would have to apply and compete for vacant Specialist Registrar posts as and when they were advertised and that, after he had obtained one, the "SAC members will recommend to the full SAC that you be placed on level three of the training programme. This will take into account one year of your training in North Manchester and the year at Portsmouth" (2/616).[18]In the event, as the Tribunal found at paragraph 39, this placed Mr. Chaudhary in the difficulty that, when he applied for such posts, he was competing with younger applicants and he was often rejected as being over qualified or seen as not being in the mainstream. He did not obtain another post immediately and subsequently appears to have obtained only short-term or hourly paid contracts, acting as a locum at hospitals in London, Crewe and Glasgow.[19]Mr. Chaudhary's unsuccessful attempts to challenge the refusal to recognise his training in North Manchester and to obtain entry to the Specialist Registrar grade, together with his applications for assistance from the BMA in this respect, are at the heart of the Tribunal's findings and the challenge made to them by the BMA in this appeal. Mr. Chaudhary, who could see no proper basis for the refusal of his application, began to suspect that racial discrimination lay behind it. He sought, initially, the BMA's advice and subsequently, after many months had passed, their support in bringing proceedings in the Employment Tribunal against the professional and regulatory authorities, alleging racial discrimination. He considered that he did not receive the assistance and support he was entitled to.[20]Meanwhile, further changes in training arrangements for doctors were taking place. As a result of EC Directive 93/16 , designed to facilitate the free movement of doctors in the EU, the European Specialist Medical Qualifications Order 1995 was made under Section 2 (2) of the European Communities Act 1972 , implementing the Directive. This Order, which came into effect on 12 January 1996, created a new system for training for specialist medical qualifications and established the Specialist Training Authority of the medical Royal Colleges (STA) and the Specialist Register maintained by the GMC. After 1 January 1997 entry on this Register became a legal requirement for appointment to a substantive consultant post in the NHS. The STA became the designated competent authority for determining entry and was responsible for approving specialist medical training intended to lead to the award of a CCST. In order to gain entry to the Register a doctor had to obtain this certificate. Members of the STA are appointed by various bodies, including the Royal Colleges, Faculties, the GMC and the Secretary of State. It is common ground that the STA relied on the decisions of the Royal Colleges to set the standard in each specialty for training for the future and for recognition of training on transition. To obtain the CCST the doctor had to follow a prescribed form of training set down by the relevant medical Royal College.[21]The 1995 Order was subsequently amended by the European Specialist Medical Qualifications Amendment Regulations 1997 , to provide for recognition of the qualifications and experience of doctors who had worked in non-training grades in the U.K. or who had qualified and worked overseas. As the Tribunal found (see paragraph 61) the BMA had lobbied the Government for amendments to the 1995 Order because some of their committees (principally the Central Consultants and Specialist Committee (CCSC)) considered that the Order, in its original terms, was unnecessarily restrictive and did not sufficiently provide for a special category of doctors, largely members of ethnic minorities, who were then employed in non-consultant career grade posts in the NHS. These were doctors who had done some training in a specialty but held NHS posts which were neither training nor specialist posts. The 1997 Regulations extended the transitional period and allowed experience as well as formal qualifications to be taken into account. In addition the BMA brought Judicial Review proceedings, challenging the STA's requirement for existing doctors to pass a new Intercollegiate Board Examination on the basis that it was ultra vires and constituted an unwarranted fetter on the STA's discretion. These proceedings failed and the STA was held to be entitled to require doctors who were not already regarded as of consultant status to take the exam before recognising completion of their training and awarding them a CCST. The BMA obtained leading counsel's opinion about the prospects of success for an appeal and were held to have decided reasonably not to pursue an appeal.[22]As will be apparent from the above, for a doctor who was already in the Specialist Registrar grade and undertaking training in the U.K., entry to the Specialist Register was through an award of the CCST, which is given on satisfactory completion of Specialist Registrar training. Such a doctor automatically met the requirements for admission to the Register. There were also transitional provisions allowing doctors who met the transitional entry criteria to enter the Register.[23]On 23 December 1997, whilst he was still challenging the refusal to admit him to the Specialist Registrar grade and seeking the BMA's help on this issue, Mr. Chaudhary applied to the STA for "mediated entry" to the Specialist Register pursuant to Article 12 (2) (c) (i) of the Order, namely as a doctor who had undertaken approved training in the U.K. He did so on the advice of Dr. Armstrong, the BMA Secretary.[24]Mr.

(i) This provides that:

"(2) A person falls within this paragraph if …. (c) he has satisfied the STA that (i) he has been trained in the United Kingdom in such a specialty and that training complied with the requirements relating to training in that specialty current in the United Kingdom at the time he undertook it."
A letter in support of his application was provided by Mr. Costello, one of the consultant urologists with whom he had trained in North Manchester. Mr. Costello stated his support for Mr. Chaudhary for "specialist recognition in Urology" and referred to the registrar post he had occupied in North Manchester as being "recognised by the Royal College of Surgeons as a training post in urology at that time" (2/772).[25]By letter dated 28 th September 1998 the STA refused Mr. Chaudhary's application. They informed him that the RCS and the STA had applied the criteria based on the 1995 Order to assess his application and they attached the criteria. Essentially it is accepted by the BMA in this appeal that the reason why he did not meet the criteria and why his application was refused was because his post at North Manchester had not been approved by the SAC in urology and was therefore not recognised so as to enable Mr. Chaudhary to be admitted to the Register under the relevant transitional provisions. Thus, that earlier refusal to admit Mr. Chaudhary to the Specialist Registrar grade in 1996 was still relevant to and responsible for the refusal to admit him to the Specialist Register in 1998.[26]The STA were however prepared, according to their criteria, to recognise two years training in the North Manchester post in relation to Article 12 (2) (c) (ii) of the Order. In their letter of 28 September the STA told Mr. Chaudhary this and informed him that he was required to re-enter training, to complete a further 25 months of training in urology and to pass the Intercollegiate Board Examination. He was also told that he could appeal against their decision. As the Tribunal found (paragraph 66) the BMA had set up informally, through arrangements made by the Chairman of the CCSC, a screening group to decide which cases should receive the support and assistance of the IROs of the BMA in their STA appeals. This group comprised the Chairman of the CCSC (initially a Mr. Johnson but subsequently Dr. Hawker), a member of the BMA legal department (usually Mr. Hughes or another nominated member of the legally qualified staff), a member of the administration and a representative from the Junior Doctors' Committee (JDC). Originally it did not include any member of the BMA's NCCG Doctors' Committee. That committee learned of the existence of the screening group and resolved that its Chairman ought to be a member. The Chairman then was a Mr. Mohib Khan and he applied to and then did join the group in November 1998.[27]The Tribunal found that, by 24 September 1998, it was already apparent from the applications received from members for assistance from the BMA that a number of them were from ethnic minority doctors, alleging that the STA had discriminated against them on racial grounds in their decisions. The BMA's response to these applications, including Mr. Chaudhary's, and the Tribunal's findings in relation to these matters are, once again, central to their Decision in this case and will be considered in detail below. For the present, however, suffice it to say that the screening group decided that the STA Register entry criteria themselves could not be challenged by members who were being assisted by the BMA. They agreed to confine themselves to deciding whether there was evidence in the case presented to them of the STA failing to apply the established criteria consistently.[28]On 9 November 1998 Mr. Chaudhary wrote to the BMA Secretary alleging that the STA had discriminated against him in their decision and seeking the BMA's assistance in challenging it. He also reapplied to Dr. Platt, asking him to review his previous decision as to his admission to Specialist Registrar grade, on the basis that the STA had apparently recognised two years of his training in that post. On 15 December however Dr. Platt rejected Mr. Chaudhary's further application, maintaining that the STA recognition for entry to the Register differed from recognition by the SAC for entry to Specialist Registrar grade and that the matter had been fully considered and determined previously.[29]On 24 May 1999 the original STA decision was confirmed on a review requested by Mr. Chaudhary. He appealed, including a complaint of racial discrimination in his appeal. Eventually Mr. Chaudhary's application for assistance from the BMA in his appeal was submitted to the screening group, together with a summary created by the secretariat, which referred to Mr. Chaudhary's belief that he had been discriminated against on grounds of race. A large bundle of documents accompanied the application. On 2 December 1999 the majority of the members of the screening group voted against supporting Mr. Chaudhary's appeal against the STA decision, Mr. Mohib Khan disagreeing with that decision.[30]Ultimately and for completeness, although it did not form part of the Tribunal's Decision in these proceedings against the BMA for refusal to support, the appeal panel dismissed Mr. Chaudhary's appeal on 29 November 2000. Written reasons sent to him on 8 May 2001 informed him that his appeal under Article 12 (2) (c)(i) of the 1995 Order was dismissed on the ground that his training did not comply with the requirements current at the time that the training in the specialty was undertaken. This was the consequence of the North Manchester post not being a post approved by the SAC. His appeal under Article 12 (2) (c)(ii) was allowed only in part, so that he would have to undertake a further 21 months rather than 25 months training and pass the Intercollegiate Board Examination. Further disputes arising from this appeal hearing and the decision go beyond the issues with which we are concerned in the present appeal and we shall therefore not refer to them.[31]During 1998/1999 there was further involvement in the new training arrangements by the Commission for Racial Equality. Shortly after Mr. Chaudhary wrote, in November 1998, seeking the BMA's assistance in relation to his STA appeal, the BMA had met with members of the CRE on 19 November 1998 and the Tribunal refer to this in their Decision. The BMA were represented by Dr. Hawker, Mr. Hughes, Mr. Meyers (a regional manager who acted on the screening group) and Ms. Farant, who acted as secretary of the screening group. The aim of the meeting was to discuss the implementation of the new arrangements under the 1995 Order and particular concern was raised over whether the legislation and the criteria to be applied could be viewed as discriminatory. It was explained that the majority of doctors seeking inclusion on the Register under the transitional arrangements were from ethnic minorities because these doctors had not completed training and were employed in non-consultant career grade posts.[32]Seven months later, on 9 June 1999, a further meeting between the BMA and the CRE took place when the criteria being applied by the Royal Colleges were discussed. As the Tribunal found (paragraph 92) the CRE noted that there would need to be an investigation of the way in which the STA and the Royal Colleges interpreted and applied their criteria in assessing the applications for entry to the Register in individual doctors' cases and it was agreed that the CRE's concerns would be raised with the Royal Colleges, the JCC and the STA. Another meeting was arranged for July 1999, to which the BMA would invite a member of their racial equality working party. This meeting did not take place. On 7 December 1999 however Dr. Hawker arranged for a meeting of the JCC with the CRE. At this meeting, as the Tribunal found (paragraph 101) the CRE representatives asked a number of questions about the way in which the criteria had been applied, in particular with regard to experience, previous training and formal examinations. Dr. Hawker said that the BMA was still looking at the question of discrimination. It was expressly stated that there had been allegations made of racial discrimination during the transitional period for access to the Specialist Register and that doctors from the Indian subcontinent were at a disadvantage because of the scheme. The CRE was therefore concerned. Statistics sent by the STA to the BMA in January 1999, which were before the Tribunal, showed that out of 3,069 applications from doctors with primary medical qualifications from India, Pakistan and Bangladesh, 1,528 were rejected. This included approximately five eighths of the applicants with primary qualifications from India. This compared with the rejection of 275 out of 852 applications from those who had primary medical qualifications in the U.K.[33]Finally, by way of background, it is necessary for us to refer to the other complaints brought by Mr. Chaudhary in the Employment Tribunal during the events referred to above. In respect of these complaints he sought assistance and support from the BMA both before and after the issue of proceedings. He contended in the proceedings which are the subject of this appeal that he was unlawfully refused it.[34]Firstly, on 2 December 1997, in proceedings issued in the Southampton Employment Tribunal by Mr. Chaudhary acting in person, he complained of continuing direct and indirect racial discrimination since 12 October 1991. This complaint related to the non-recognition of his training in North Manchester and the refusal to admit him to the Specialist Registrar grade. He named seven Respondents, namely the Senate of the Royal College of Surgeons, NHS Executive Headquarters, Department of Health, NHS Executive North West, the Post-Graduate Dean of North West Deanery, NHS Executive South and West and the Post-Graduate Dean at Wessex Deanery. In the Notices of Appearance the Respondents took a time-limit point, namely that the Tribunal had no jurisdiction to hear the complaint in so far as it related to acts occurring on or before 2 September 1997. It was denied that the act complained of was "an act extending over a period" within the meaning of Section 68 of the 1976 Act. At the preliminary hearing, which was adjourned several times and eventually concluded on 28 May 1999, it was submitted by counsel on Mr. Chaudhary's behalf that one of his complaints was that the Royal College had, through the SAC, departed from the criteria set in the Orange Book and had applied a racially discriminatory policy in not recognising his training in Manchester, which policy had led to the decision not to allow him entry to the Specialist Registrar grade. On 25 June 1999, in a reserved decision, the Tribunal held that they had no jurisdiction to determine the complaint because it was out of time. Appeals against this ruling have been unsuccessful and these proceedings are therefore at an end.[35]On 23 December 1998 Mr. Chaudhary presented a second complaint to the Employment Tribunal in Manchester. He complained of racial discrimination and named nine Respondents, namely the STA, the Senate of Surgery, the Royal College of Surgeons, the President of the RCS, the SAC in Urology, the Chairman and members of the SAC, the Regional Post-Graduate Dean (Wessex), the NHS Executive Headquarters and the Department of Health. The complaint included reference both to the STA decision and to Dr. Platt's decision of 15 December 1998 (referred to at paragraph 28 above), which was relied on as a new decision on his re-application for transitional entry to the Specialist Registrar grade, as well as a reference generally to the earlier history of the dispute. In relation to Dr. Platt, some of the Respondents contended that the complaint was an abuse of process, since it raised matters which were already the subject of the Southampton complaint. The issues in both sets of proceedings were whether Mr. Chaudhary was entitled to enter the Specialist Registrar grade during transition and the status of the Manchester post. Some of the Respondents objected to two applications being allowed to proceed at the same time in two different Tribunals, as they raised the same issues against some of the same Respondents. In a decision sent to the parties on 21 July 2000 the Chairman refused to strike out the proceedings as an abuse of process, holding that the Southampton proceedings had only determined the time-limit issue and that it could not be decided without hearing evidence whether Dr. Platt's letter of 15 December 1998 constituted a reconsideration or a fresh determination of Mr. Chaudhary's application. Appeals by the Respondents against this ruling have been unsuccessful and these proceedings, on the Dr. Platt issue, as at the time of the hearing of this appeal were therefore still live.[36]A third originating application was commenced in July 2001 alleging discrimination in relation to the decision of the STA appeal panel. A separate point arose on appeal in relation to the extent of the jurisdiction of the Employment Tribunal to entertain complaints of racial discrimination under Section 12 of the 1976 Act and whether that jurisdiction was excluded under Section 54 (2) of the Act, in view of the statutory jurisdiction of the appeal panel in respect of STA decisions. On this issue the Chairman held that the Tribunal had no jurisdiction to hear the complaint of racial discrimination against the STA and the other Respondents. Mr. Chaudhary's appeals against this decision have been unsuccessful and the complaint in relation to the STA decision has therefore come to an end. Mr. Chaudhary's Complaint against the BMA and the History of the Proceedings before the Tribunal[37]On 4 January 2000 Mr. Chaudhary served on the BMA a Questionnaire pursuant to the provisions of the 1976 Act, to which they responded on 11 May 2000. Meanwhile, on 1 March 2000 Mr. Chaudhary complained to the Employment Tribunal of direct and indirect racial discrimination against him by the BMA in failing to provide him with assistance and support in connection with his complaints. It is common ground that the BMA is and was at all material times an organisation whose "…. members carry on a particular profession …. for the purposes of which the organisation exists" within the meaning of Section 11 of the 1976 Act. Section 11 further provides that it is unlawful for an organisation to discriminate against a member "in the way that they afford him access to any benefits, facilities or services or by refusing or deliberately omitting to afford him access to them or …. by subjecting him to any other detriment". It was also agreed that the BMA affords members access to regional IROs, who are available locally and who advise members and respond to queries. The BMA has a legal department which advises the IROs in individual cases and also advises members, sometimes directly and sometimes through the IRO, as to their particular problems and as to whether they have a cause of action and, if so, what evidence might be needed. It was agreed that one of the facilities or services offered to members is that a legally qualified member of the legal department may, in appropriate cases and subject to the BMA criteria as to prospects of success and/or the importance of the point to the profession generally, represent members in courts or tribunals; and that on occasions the BMA will pay the legal costs of a member who is represented by solicitors or solicitors and counsel. There was no dispute that the BMA would be vicariously liable for any unlawful acts or omissions of its employees or agents, pursuant to the provisions of Section 41 of the 1976 Act.[38]At the time he lodged his originating application and until the hearing took place Mr. Chaudhary was for the majority of the time un-represented. He drafted his own complaint. In giving details of his complaint he referred to the assistance he had received initially from an IRO in relation to his unsuccessful internal appeal against Dr. Platt's refusal to admit him to Specialist Registrar grade. He complained however that, thereafter, both before and after issue of proceedings against the medical authorities, members of the BMA head office, including in particular John Quigley of the legal department and Dr. Armstrong, the BMA Secretary, had delayed in responding to his requests for advice; had refused to meet him to discuss his concerns; had informed him that he had no right of action; had ignored his assertion that independent legal advisors had advised him that he had a valid complaint of racial discrimination and also ignored counsel's opinion to that effect; had refused support for his Employment Tribunal complaints and finally, on 2 December 1999, had dismissed his request for assistance in his appeal against the STA decision to refuse him entry to the Specialist Register. His legal complaint was expressed thus:
"I believe that the BMA have been ignoring my pleas for assistance and turning them down because they are reluctant to support a complaint of racial discrimination against the medical authorities. In the course of this and by failing to advise me of and to take notice of Tribunal deadlines they have, through their negligence, denied me my legal rights.

(a) "

Subsequently some amendments were made to his application, including an additional complaint of victimisation.[39]The BMA denied the allegations. In their Notice of Appearance, in relation to his complaint re the non-recognition of his North Manchester post and the refusal to assist and support him, the BMA pleaded at paragraph 8 that "the BMA made its decision on this issue some years ago. It was made perfectly clear to the Applicant in a letter dated 28 October 1997 that the BMA did not believe there was any purpose to be served in taking the matter further. The Applicant is now attempting to reopen that decision". At paragraph 9 they stated that "a number of people at the BMA considered the point on behalf of Mr. Chaudhary. After long and careful consideration the BMA came to the conclusion that as a matter of straightforward fact, the Manchester post occupied by Mr. Chaudhary between 1991 and 1995 was not approved by the relevant Royal College for the purposes of higher specialist training"; and that "Mr. Chaudhary would not accept the conclusion reached by the BMA on the status of his old post". No mention was made of the allegation of race discrimination made by Mr. Chaudhary in respect of events pre-December 1999. In addition a time-limit point was taken in respect of all his complaints re events prior to 2 December 1999 which, it was submitted, should be struck out. In relation to the December 1999 complaint re the STA decision, the BMA denied direct discrimination and submitted that the complaint was scandalous, frivolous or vexatious and should be struck out under the relevant rules.[40]Subsequently Mr. Chaudhary was ordered to provide further particulars of his allegations of indirect discrimination and victimisation, which he did on 23 June 2000 (1/370). After referring to the fact that the STA of the medical Royal Colleges decides whether or not the doctor shall have his name entered on the Specialist Register and determined that Mr. Chaudhary's name should not be entered, he stated that, by letter dated 9 November 1998, he had complained to the BMA of racial discrimination by the STA and had "asked them for assistance in resolving the situation". In paragraphs 3 to 5 he expressed his claim as follows:
"3. In their letter of 2 December 1999, however, the Respondents turned down my request for assistance in the STA appeal. I believe that the Respondents have a condition not to give assistance to those members who are complaining about racial discrimination by the STA. 4. As I had alleged discrimination by the STA I did not get assistance. 5. The proportion of their members of Indian and other Asian racial origin who are likely not to receive assistance because of their aforesaid rule is greater than the proportion of their members of white racial origin who are likely not to receive assistance because of this rule."
In relation to victimisation his case was:
"6. I believe that the said refusal to give assistance was due to myself doing a protected act as described by the Race Relations Act, the protected act being that I, through my representatives, on 1 st February 1999, alleged that the Respondents may be discriminating against me, as defined by and contrary to the Race Relations Act."
[41]The BMA replied to these allegations, denying victimisation and, in relation to the complaint of indirect discrimination, stated as follows:
"2. …The application was properly considered, and, since it was clear that the Applicant could not be brought within the criteria laid down by the STA for inclusion on the specialist register, the Applicant's request for assistance was denied. The BMA does not impose any such condition as is alleged by the Applicant, rather it supports appeals to the STA where there are reasonable prospects of success. 3. The Applicant was denied assistance with the appeal to the STA because there were no substantial merits in the appeal. 4. It is agreed that the proportion of members of Indian and other Asian racial origin who seek the assistance of the BMA in connection with appeals to the STA is larger than the proportion of such individuals in the membership of the BMA at large. All requests for assistance in connection with appeals to the STA are treated on their merits and there is no such condition or rule as is alleged."
[42]Subsequently, on 6 October 2000, at an interlocutory hearing fixed to consider all jurisdictional issues, the Chairman sitting alone determined that he could not resolve the time-limit point and that this was a matter which would have to be resolved by the full Tribunal upon hearing evidence at the full hearing. The Chairman referred at paragraph 5 of his reasons to the fact that Mr. Chaudhary was arguing that there was a continuing course of conduct of discrimination from 1996 onwards. Various directions were given both on that day and in January 2001 in relation to preparation for the hearing, which was fixed to take place on 12 March 2001 with an estimate of five days.[43]Witness statements were exchanged in the usual way before the hearing. In his witness statements Mr. Chaudhary set out the nature of his complaints against the BMA fully and in considerable detail. Essentially, in relation to the refusal to recognise his North Manchester post and admit him to the Specialist Registrar grade, he alleged that this was not in accordance with the Orange Book criteria and that no-one had ever been able to substantiate this position or explain it satisfactorily. He alleged that the BMA's unjustified refusal throughout to assist him in challenging this was related to his race and constituted direct discrimination. In relation to victimisation his solicitors handling the Southampton Tribunal proceedings wrote to the BMA on 1 February 1999 and indicated that the BMA's refusal to grant assistance to Mr. Chaudhary could itself be discriminatory. Mr. Chaudhary alleged that the conduct of Mr. Quigley and later Mr. Hughes of the BMA in dealing with him and with the issues he raised, after this protected act, amounted to victimisation as well as direct discrimination.[44]In relation to indirect discrimination Mr. Chaudhary's complaint was fully set out at paragraphs 38 to 42 of his first witness statement. He maintained that the BMA appeared "to have a policy of not challenging the STA and Royal College criteria when grounds of such challenge include racial discrimination". In a supplemental statement dated 9 March 2001 he alleged:
"5. The BMA is known to be reluctant to support claims of discrimination against the medical Royal Colleges, its fellow constituent of the JCC. From its reply to my Race Relations Questionnaire (9d) it appears that it has never assisted a claim of racial discrimination against any Medical Royal College. Considering that majority of doctors (and BMA members) are affiliated to one or the other medical Royal College, this becomes quite important. 6. … 7. The BMA's failure to support claims of discrimination against the STA and Royal Colleges appears to originate from this policy, of not supporting claims of racial discrimination against the Medical Royal Colleges. As a member of the BMA from ethnic minority, this policy has a disproportionately greater impact on myself than BMA's white members, as the white members are less likely to face racial discrimination and as such less likely to request such assistance. 8. Pursuant to this policy, in 1999, once again the BMA refused to assist me in my claim of discrimination against the STA and a Royal College."
He also referred to a number of other Asian doctors who had complained of racial discrimination, some of whom gave evidence to the Tribunal. He dealt, finally, at paragraph 23 with the effects of not having BMA support as follows:
"23. The difference between having and not having support from the BMA in my legal claims is the difference between winning and losing those claims. The regulations which have been breached by the Royal College of Surgeons and the STA are the regulations which were agreed jointly by the BMA and the Royal Colleges. The Royal College could not have carried on breaching them if their fellow constituent of the JCC had supported me. It is the lack of support from my Trade Union, the BMA, which has allowed the Royal College to continue with its regime of continuing discrimination."
[45]Thus, by the time this hearing began in March 2001, the BMA could have been in no doubt as to the legal basis for Mr. Chaudhary's complaints against them and the issues to be determined by the Tribunal were clear. His claim was that the BMA had failed to provide him with adequate advice, assistance and support(a) in relation to the complaints he considered he legitimately had concerning his treatment by the professional and regulatory bodies; and(b) in relation to the tribunal proceedings he brought alleging racial discrimination against him by those bodies in refusing him entry to the Specialist Registrar grade and subsequently to the Specialist Register. This, he alleged, amounted to less favourable treatment on racial grounds and/or less favourable treatment by reason that he had alleged, through his solicitors, that the BMA may themselves have discriminated against him, namely victimisation. Alternatively, the indirect discrimination alleged took the form of a condition attached to assistance and support that a member did not allege race discrimination by the professional or regulatory authorities in seeking to challenge their criteria. We shall, throughout this judgment, refer to the relevant bodies as the "regulatory and professional authorities" or, simply the "authorities" rather than, as they were sometimes referred to during the course of argument, the "medical establishment" or the "academic establishment".[46]In the event, as we have said, the hearing before the Tribunal lasted some 15 days concluding at the end of June 2001. The Tribunal examined a very large number of documents, many of which have been before us in this appeal. In addition to Mr. Chaudhary the Tribunal heard from four other doctors of Asian racial origin about their allegations of racial discrimination and requests for assistance from the BMA. A number of further statements were read. In addition they heard from Mr. Mohib Khan re the decision of the STA appeal committee in Mr. Chaudhary's case. The BMA, who denied all the allegations, called John Quigley, who had dealt with Mr. Chaudhary's case after taking over the file in about September 1997, and Dr. Hawker, Chairman of the CCSC, who dealt in his witness statement with the changes following the 1995 Order and the STA decision in Mr. Chaudhary's case. They also relied on a written statement from Mr. Hughes of the BMA legal department, who was unwell and could not attend the Tribunal. In his witness statement he addressed the regulatory background and the decision-making of the BMA which had occurred within the three months before Mr. Chaudhary's originating application was lodged with the Tribunal. We note that the BMA called no-one from any of the regulatory or professional authorities to give evidence concerning the reasons for non-recognition of Mr. Chaudhary's training in North Manchester. Nor did they adduce any evidence that the BMA had ever provided assistance or support to anyone challenging qualification or training decisions, or indeed any decisions, of the authorities on the grounds of racial discrimination.[47]It is clear from the opening paragraphs of their Reasons that there was initially a dispute concerning whether the hearing should continue before this Tribunal. The matter was resolved however and played no further part in the proceedings. It has no relevance to any issue arising in this appeal. Further there was a dispute between the parties during the hearing as to the admissibility of evidence relating to the other doctors whom Mr. Chaudhary wished to call. In paragraph 15 the Tribunal identified eight categories of evidence, which they regarded as potentially relevant to the issues they had to determine and further directions as to witness statements and disclosure were given, which were complied with. The categories of evidence listed demonstrate, in our judgment, that the Tribunal had a clear understanding of the issues in this case. As we have stated previously, at the conclusion of the evidence they had the benefit of detailed written submissions from both counsel in relation to fact and law. The Tribunal's Decision[48]As is customary, the Tribunal gave a summary of their decisions on the complaints and applications at the outset. Their Extended Reasons were necessarily lengthy and we shall therefore summarise the key findings here although, in the main, using the language adopted by the Tribunal.[49]The Tribunal dealt with the facts essentially in chronological order, observing that the primary facts were largely agreed. Much of the history of events and many of the facts found have already been referred to above, in the section of this judgment dealing with the relevant background.[50]They dealt in some detail with the evidence relating to the non-recognition of Mr. Chaudhary's North Manchester post in response to his application for transitional transfer to Specialist Registrar grade. They referred to the "AAB" report, the Orange Book and the advertisement for Mr. Chaudhary's post. They accepted Mr. Quigley's evidence that, at about the time of Mr. Chaudhary's appointment, the Royal College of Surgeons was in the process of delegating its power of approval of posts in urology to the SAC for urology; and they found that this process was becoming more formal in late 1991, when it appeared that SACs were being created uniformly to do the role which had previously been left to the Royal College generally. However, they found on the evidence that in 1992 Mr. Chaudhary's North Manchester post had appeared in a list published by the Royal College of Surgeons as a hospital post which provided "acceptable training". This referred to the document at 2/634. Headed " RECOGNISED HOSPITALS AND APPOINTMENTS 1992 Edition " the North Manchester General Hospital Registrar (urology) post was listed as one of the posts "which have been inspected by the Hospital Recognition Committee and approved by Council" and therefore as one of the posts "recognised by Council as providing acceptable training". The term "acceptable training" was not defined. Mr. Cavanagh QC, for the BMA, submitted to us that this simply meant first-tier recognition in a system of two-tier recognition (that is, recognition first by Council and subsequently by the SAC). Mr. Hendy QC, for Mr. Chaudhary did not accept this however and, more significantly, the Tribunal did not accept this on the basis of the evidence before them. That is clear from their finding at paragraph 32. After Mr. Chaudhary applied to his Post-Graduate Dean to be admitted to the Specialist Registrar grade Dr. Platt took advice from his Regional Adviser in Urology, Mr. Bramble, who was told by the Chairman of the SAC in urology, Professor Mundy, that Mr. Chaudhary's post had not been approved by the SAC and advised Dr. Platt not to award him an NTN and not to put him on a training programme. The Manchester consultants appeared to be telling Dr. Platt that the post was recognised by the Royal College but not for higher specialist training in urology. The Tribunal regarded the evidence about this as unsatisfactory and observed that "it was not clear what recognition by the Royal College could be for if it was not for higher specialist training in urology. None of the evidence before us has ever clarified that point."[51]We have considerable sympathy with the Tribunal in this respect. Whilst Mr. Cavanagh invited us to accept that the matter was clear, the documentary evidence to which we were referred, and which was before the Tribunal, raised more questions than it answered on this issue. Nor did the Tribunal hear from Dr. Platt, Professor Mundy or Mr. Bramble. We shall return to this when addressing the parties' submissions below.[52]The refusal to issue him with an NTN was found to be a terrible blow to Mr. Chaudhary, who had been training in a registrar post for three and half years, whose progress had been assessed each year by a panel in Manchester and who had moved on to a locum senior registrar post. He did not understand why he should have to start again with his training and to compete for posts as and when they were advertised. It led to the difficulties in his obtaining another post, to which we have already referred, and he did not obtain another post immediately despite making a number of applications.[53]Initially Mr. Chaudhary received considerable assistance from IROs in the BMA's Winchester office, in particular Tony Coley. Advice was sought from the BMA's legal department on 12 September 1996, at which time there had been no suggestion of racial discrimination. The advice, which was not given until three months later on 4 December 1996, came from Angela Anstey in the legal department, who reported that there was nothing Mr. Chaudhary could do, although she suggested the possibility of misrepresentation by the Health Authority in relation to the advertisement for the North Manchester post.[54]In early 1997, after his "appeal" to Dr. Platt had been unsuccessful. Mr. Chaudhary's case was taken up by officers of the BMA's Junior Doctors' Committee. At about this time Mr. Chaudhary began to articulate his concerns that race discrimination lay behind what had happened to him. He wrote to Alison Powell of the JDC in February 1997 saying that he had reason to believe that people had been awarded an NTN during the transitional period "without using uniform criteria" and asking the JDC to obtain information about the way in which the rules on transition had been applied in Manchester. Mr. Coley also asked Ms. Anstey, in the memo of 13 March 1997, whether a racial discrimination claim might succeed. He referred both to "racial discrimination" generally and, at one point, to "indirect racial discrimination" but the Tribunal found that he did not mean indirect discrimination within the meaning of Section 1 (1) (b) of the Act. They observed that in their experience people who are not legally qualified often refer to indirect race discrimination when they mean unconscious direct discrimination. In her response Ms. Anstey said that she could not see any indirect discrimination, referred again to the possibility of misrepresentation and made no reference at all to direct discrimination by the Post-Graduate Dean. Nor did she make any reference to time-limits, which it is accepted is a reference to time-limits for commencing a complaint of racial discrimination in the Employment Tribunal. Further correspondence with Ms. Anstey elicited her response that, confusingly, a claim by Mr. Chaudhary that his treatment in 1994 was based on discrimination would be out of time and "we…secondly do not have very good arguments".[55]In April 1997 advice was sought by Gail Norcliffe of the JDC from Professor Temple, Chairman of the Calman Steering Group who were implementing the reforms. His reply was considerably delayed and, although dated 1 August 1997, was mislaid and appears not to have come to light until November 1997. He stated that the North Manchester post was not an SAC approved post but added that "….The actual recognition of this post is clouded in the confusing phraseology (Royal College approved etc) but it is quite clear that during the time Dr. Chaudhary was there this was quite specifically not a post which had been inspected and approved by the SAC in urology". The Tribunal clearly regarded his response as unsatisfactory and found that he did not explain what the words "Royal College approved" meant, if it did not mean approved for higher specialist training in urology. Further, he had inaccurately described Mr. Chaudhary's post at Portsmouth as being locum registrar and not, as was the case, locum senior registrar. The Tribunal found that, despite this lack of clarity, "both the JDC and the legal department treated Professor Temple's assertion, once they knew of it, as incontrovertible". They repeated this at paragraph 49 and found that no-one had raised with Professor Temple the questions which were at the nub of Mr. Chaudhary's case on direct discrimination, namely how this training might have been dealt with if the postholder had been white or how it had been dealt with in the past with white postholders. Professor Temple was not called to give evidence to the Tribunal.[56]The Tribunal referred to the investigation by the CRE in 1991/92 and to their findings (referred to above) and to the fact that the CRE had found marked disparities in the success rates for different ethnic groups on applications for appointment to senior registrar and consultant and in addition "widespread omission of procedural safeguards". They referred to the general recommendations made by the CRE about changes in the arrangements for training and recognition of training. The Tribunal also referred to Mr. Chaudhary's submissions that Dr. Platt and the appeal panel had refused to accept as valid training which had been accepted as valid in the past for white trainees; and found that Mr. Chaudhary had told Mr. Coley and the BMA that his predecessors in the post appeared to have had the training recognised.[57]Mr. Coley continued to press the legal department for some assistance and asked to meet someone from the legal department to discuss the case. The Tribunal found, however, that the legal department did not want to have a meeting. At paragraph 45 they found as follows:
"They took the view that a meeting would not assist. Mr. Coley felt that it would assist because they could then explore the possibilities better with the applicant and the applicant would be able to explain his case better orally. The legal department eventually contacted Mr. Coley to ask for further details from the applicant about what was said to him at the interview for the post. The applicant responded to the request but he did point out that he would prefer to give the detail in a meeting. None of his answers weakened his position on the claim that he had been treated differently from others previously in the same post or others in similar posts, which he had made clear. He then wrote again to re-emphasise that he did not just want advice about a misrepresentation action. We accept that throughout his main point was that the Postgraduate Dean was wrong to act in the way that he did."
[58]In September 1997 Mr. Chaudhary complained to the Secretary of the BMA, Dr. Armstrong, about the delay and unreasonable attitude of the legal department and generally seeking his help. Dr. Armstrong responded that he had asked the legal department to progress the matter and had referred Mr. Chaudhary's complaints to Mr. Deval, Regional Manager for the South West, who then carried out some investigations. It is at about this time that John Quigley took over Mr. Chaudhary's file, when Ms. Anstey went on maternity leave. He had started as a solicitor in the BMA legal department in May 1996 and, at that time, did not have any real experience of employment law. The Tribunal found however that there were others in the department with such experience, including experience of discrimination law, and that the solicitors in the department usually discussed the cases amongst themselves.[59]Mr. Quigley read Mr. Chaudhary's file and formed the view that the North Manchester post must have been recognised for something other than higher specialist training. He reported the overall position to Mr. Hughes, the head of the legal department. The Tribunal found that, in doing so, he had referred to the wrong specialty and that "…. His response was entirely based on the acceptance that the applicant's post was not recognised for higher specialist training. The evidence he had for that at that time seems to have been that Dr. Platt said so and/or that Dr. Platt's advisers said so. He reiterated the same points about what was said at the interview for the post and said that there did not appear to be any right of action." He made no reference to any discrimination issue and said that he felt there was "…. no point in the legal department's representative seeing the applicant because there was no identified cause of action". He did however say that the member should be advised that if he wanted to pursue the matter elsewhere he needed to move quickly. That was a reference to the six-year limitation period for misrepresentation or breach of contract claims.[60]Mr. Deval eventually responded to Mr. Chaudhary, who was understandably annoyed about the delay, telling him that the legal department had concluded Mr. Chaudhary had no right of action available to him. The letter (2/687)dated 28 October 1997 also stated that the view had been taken "…. that there was not sufficient evidence to support taking the matter further and that included meeting with the Legal Department. I support the view of the Legal Department in this."[61]By now Mr. Chaudhary had obtained independent advice, including legal advice, as to his position from three separate sources, namely a legal help line, a firm of solicitors from whom he obtained advice at a free oral consultation and from Mr. Malkan, another BMA member who had also been disappointed in his dealings with the legal department. Mr. Chaudhary wrote letters to Dr. Armstrong in October 1997 informing him that he had been independently advised that there was evidence of both direct and indirect discrimination in his treatment and suggesting that the legal department were wrong. In this letter (2/691) Mr. Chaudhary was highly critical of the legal department's delay in responding to him and in refusing to meet him. He indicated that he would be pursuing every possible avenue, including the CRE. Dr. Armstrong in his response of 31 October (2/692) reiterated and adopted Mr. Deval's advice. He referred Mr. Chaudhary to the Directory of Membership Services and the provision that the BMA will assist individual members in cases which raise questions of principle affecting the medical profession as a whole. Mr. Chaudhary, on 28 November 1997, sent a detailed letter to Dr. Armstrong demonstrating how, in his view, his case satisfied the BMA criteria for assistance. On 4 December 1997 however, after discussing the matter with Mr. Hughes, Dr. Armstrong replied to Mr. Chaudhary repeating his view that there was no legal remedy appropriate to his case and that there was nothing further the BMA could do to help him. He also advised him about the changes to the Regulations and the Specialist Register procedure and advised him to seek entry. Mr. Chaudhary followed that advice.[62]Mr. Hughes had responded to Dr. Armstrong stating, incorrectly, that Mr. Chaudhary had applied to be put on the Specialist Register. That process was only just coming into force. He also stated that any discrimination against Mr. Chaudhary occurred in 1991 and was therefore out of time or was embodied in the framework of statutory instruments and was therefore lawful. The Tribunal were unclear what this was referring to but it appeared to be a reference to his appointment in December 1991 and not the failure to recognise his training in 1996, which was the real issue. Mr. Hughes also noted that Mr. Chaudhary had not identified the independent advisers he had referred to nor given details of their advice. The Tribunal found however that Mr. Hughes had not asked for any further explanation of the complaint of racial discrimination or for Mr. Chaudhary to be asked to identify the advisers; and further found that "…. He therefore rejected the idea of support for a claim without taking any step to identify the basis of it, even though he was told that other lawyers had identified such a claim".[63]By this time Mr. Chaudhary had decided to wait no longer and to commence proceedings in the Southampton Employment Tribunal alleging racial discrimination by the professional and regulatory authorities in refusing to admit him to the Specialist Registrar grade and in imposing a requirement for SAC approval of his post, which was not part of the Orange Book criteria. He wrote to Dr. Armstrong on 12 December 1997 informing him about the nature of and basis for his complaint and inviting him to reconsider his position. He received no reply.[64]Shortly after this Tony Coley wrote to Mr. Deval on 19 December 1997 and the Tribunal found that he told him that he "…. thought the applicant's case might be a good one". In his note to Mr. Deval (2/705) Mr. Coley said:
"Mr. Chaudhary has written again to the Secretary asking for his case to be reviewed believing there is a case for a racial discrimination claim against the Royal College and all those associated with his appointment in Manchester. I think he could be right! We should look at this aspect again in my opinion. My gut feeling about this is that it is only a matter of time before the appointment processes at the time are revealed to have been discriminatory. If that happens as a result of actions contemplated by Mr. Chaudhary then the Association will not be seen in a good light."
He received no response from Mr. Deval.[65]Mr. Chaudhary and Tony Coley took the matter up again with the JDC in January 1998, setting out Mr. Chaudhary's complaints in writing in considerable detail. The Tribunal referred to these documents specifically (2/706-710). It was there alleged that the requirement for SAC approval appeared to redefine the recognition status and to amount to racial discrimination against Mr. Chaudhary. In response Tony Coley was told by Mr. Hobart of the JDC simply that he could not take Mr. Chaudhary's case any further.[66]The JDC did however reopen the matter with the legal department and, on this occasion, Mr. Quigley did agree to meet Mr. Coley and Gail Norcliffe of the JDC, though not Mr. Chaudhary, to discuss the case. This meeting was agreed upon in February 1998 but did not actually take place until 10 th June 1998.[67]In the meantime Mr. Chaudhary applied to the CRE for assistance. They wrote to the BMA enquiring why their assistance had been withdrawn. Mr. Quigley responded but the Tribunal found that he did not answer their question, suggesting that Mr. Chaudhary could supply information to them. The CRE wrote again, on 12 May 1998, with more detailed allegations, asking more questions about Mr. Chaudhary's case and specifically asking if they would provide Mr. Chaudhary with representation if discrimination appeared likely, because he could not reasonably be expected to represent himself in the Tribunal against the medical authorities. Mr. Quigley's evidence to the Tribunal was that he did not understand the case as explained in the CRE letter. His response on 26 May was that the Manchester post was not recognised "as a matter of fact" and that he did not understand what the allegation of racial discrimination was or what evidence there was to back it up. He told them that a meeting was to take place and invited them to indicate what exactly they regarded as the discrimination element in the case. He also wrote to Tony Coley telling him that the CRE were involved and observing that it was important "that all of us here are taking the same line with both the CRE and Mr. Chaudhary". Mr. Quigley's evidence was that he thought this was the first mention of racial discrimination, in January 1998, but as the Tribunal found Mr. Coley had set out this allegation as early as March 1997. Mr. Quigley repeated in this memo to Tony Coley (3/724) that "…. It is a matter of simple fact that the post was not registered for higher specialist training. So I do not really understand how discrimination comes into the question at all and should be grateful if you would let me know what Mr. Chaudhary has in mind".[68]In response Mr. Coley sent him a copy of Mr. Chaudhary's detailed letter to the JDC, setting out the basis of his claim. Subsequently he also sent him, in confidence, a copy of a positive Advice, dated 12 May 1998, from counsel, William Panton, on the merits of Mr. Chaudhary's complaint in the Southampton Employment Tribunal. Referring to the evidence which Mr. Chaudhary had in relation to the Southampton proceedings counsel advised, amongst other things, that correspondence showed that different standards and criteria were being applied during the transitional arrangements in determining who should be given an NTN. He stated that Mr. Chaudhary would rely on the experience of white colleagues to show that he was treated less favourably. This was clearly a reference to direct discrimination. He also referred to statistical evidence being available to show that overseas doctors were treated less favourably in the implementation of the plan for "Achieving a Balance". Counsel's Advice (3/728) also pointed out that these doctors were then further disadvantaged by the arrangements made under the Orange guide. Counsel concluded:
"33. It appears that the Respondents have operated a two-tier system for recognising career and visiting registrars, contrary to the second and third Respondents' stated policy of comparable educational value. Such a policy not only discriminates on racial grounds against the Applicant but also, indirectly, against overseas doctors."
[69]Mr. Quigley told the Tribunal that he had discussed counsel's Advice with others in the legal department but that they could not understand any case for racial discrimination which was being set out. He gave evidence that he had not heard of Mr. Panton and that he traced him and checked which chambers he was in. He agreed that he was told Mr. Panton had previously spent some time working in the CRE legal department. At paragraphs 55 and 56 the Tribunal found as follows:
"55. … No-one in the BMA legal department could understand how what was being set out could be a successful race discrimination claim. When he was asked about the position in evidence he merely repeated that the post had not been recognised and said that therefore there could be no claim for race discrimination. He said he thought that there was no evidence of discrimination. When he was questioned in detail he sometimes suggested that the evidence was weak and sometimes that it had not been produced to the legal department and sometimes said that he did not see that the facts alleged could indicate race discrimination. He agreed he had not apparently pursued the question of what the Royal College recognised the post for, if it was not for higher specialist training. At one stage of his evidence he suggested he must have had that explained to him at the time by Ms Norcliffe or others. We are satisfied that he had not had it explained to him. He agreed that that point was constantly put forward by Mr Chaudhary and Mr Coley and he never wrote to either of them explaining what such recognition was. We are satisfied that it is inconceivable that if he knew the answer to their point he would not have revealed it to them. We conclude that he uncritically accepted the assertion of Professor Mundy and Professor Temple that the post was not recognised for higher specialist training at the relevant time and thereafter ignored steadfastly all the evidence that the post had been recognised for the purposes of training urologists who were white. 56. We could understand how one person could become fixed in his views about a case so as to misunderstand the position even when it was pointed out to him. It is more difficult to accept that a number of people were asked about the case and none of them understood it."
[70]The meeting between Mr. Quigley, Ms. Norcliffe and Mr. Coley took place on 10 June 1998 but no real progress was made. The Tribunal referred to the note made by Mr. Quigley after the meeting. In this note (3/741) Mr. Quigley repeated that "…. It seems clear that, as a matter of straightforward fact, the Manchester post occupied by Mr. Chaudhary between 1991 and 1995 was not approved by the relevant Royal College for the purposes of higher specialist training" and that "…. It cannot now be possible to reopen the question of whether the Manchester post was approved at that time". In relation to discrimination he stated "So far as any possible discrimination action is concerned, it appears that Mr. Chaudhary's contention is that in not granting him a national training number on transition the relevant authorities were directly discriminating against him. There seems to me to be little merit in this contention. The reason Mr. Chaudhary was not given an NTN on transition is that he was not eligible as mentioned above. The only way around this would be to demonstrate that the same persons had applied the same rules differently to other people. But it seems hardly likely that one could obtain evidence of this". The Tribunal found that this note reflected Mr. Quigley's "…. already closed view of the position". Mr. Coley sent an email on 1 July disagreeing with Mr. Quigley's approach. The Tribunal refer to this at paragraph 58, finding that whilst not referring to any specific evidence Mr. Coley did refer to the point that other white doctors may have had their experience in a similar post recognised, which is in essence Mr. Chaudhary's point. This email is at 3/748. In disagreeing with Mr. Quigley, Tony Coley said this:
"The basis of your opinion rests on an alleged matter of fact that his Manchester post 'was not approved by the relevant Royal College for the purposes of higher professional training.' At the time there was no recognised approval status that distinguished between 'higher professional training' approval and any other sort of Royal College approval as we now know it which has since been developed (SAC approval for higher professional training in the speciality – in this case urology – is now required). Mr. Chaudhary's post was advertised as having Royal College approval and the Royal College acknowledged this by noting the post in its list of approved posts in 1992. How can it now be said that the post did not have the appropriate approval status when it was openly held out to have approval at the time? It is precisely because of this fact that during transition some doctors in other Royal Colleges and specialties have apparently been accredited with experience in posts with similar Royal College approval and therefore have been treated sensitively and fairly. Why is this? What is the difference with Mr. Chaudhary. Are the others all white I wonder? We must also not lose sight of the fact that Mr. Costello one of the consultants involved with the Manchester post wrote on 5 July 1996. 'The post has always been recognised as one of the best registrar posts in Urology due to the clinical material and experience available to registrars in training' Also Mr. Garland another of the Consultant Urologist surgeons in Manchester wrote on 13 June 1996 .. 'I do know quite definitely that the post has been approved by the Royal College of Surgeons on all inspections and continues to be recognised for this' How then can a post be approved then but not now??"
[71]There was further, sporadic correspondence between Mr. Coley and Mr. Quigley but neither of them changed their view of the matter. The Tribunal found that Mr. Quigley never explained in detail to Mr. Coley why he thought that Mr. Chaudhary's case was wrong or weak. Meanwhile, as Mr. Coley continued his efforts to persuade the BMA to support Mr. Chaudhary's Southampton proceedings, the hearing dates for determination of the preliminary issue of time-limits and jurisdiction were being listed in July and September 1998 but were postponed because of Mr. Chaudhary's difficulties over representation. The CRE wrote again to Dr. Armstrong on 10 September 1998 explaining the basis of Mr. Chaudhary's complaint and seeking further information. The Tribunal found that this letter "…. set out the basis of a potential race discrimination claim". It stated as follows:
"1) In your letter you say that the post Mr Chaudhary held in Manchester was 'as a matter of fact not recognised for "
Higher Specialist Training"'. Mr Chaudhary was appointed to the post in Manchester in December 1991. Can you indicate which contemporary Department of health document defines the term 'Higher Specialist Training'. 2) You further say that 'For that reason Mr Chaudhary cannot count his training in Manchester toward training as a specialist'. Can you explain the basis of this statement. 3) You accept the official view that Mr Chaudhary's post could not have been regarded as a Career Registrar post and 'Mr Chaudhary did not satisfy the requirements because the Manchester post was not recognised for Higher Surgical Training'. However, our information is that Registrar posts held by Career and Visiting doctors were not distinct. Is it not correct that if Mr Chaudhary's post in Manchester had been taken by a British or EU national in open competition, he or she would have been a Career Registrar. If so, could you explain why the BMA accepts Higher Training approval as implicit in referring to Career Registrar posts? Is this BMA's definition of a Career Registrar post? 4) If this definition of Career Registrar posts is applied retrospectively, would it not disadvantage an identifiable group of individuals?[72]Mr. Quigley told the Tribunal that he could not understand that claim. In his reply to the CRE on behalf of Dr. Armstrong he stated that "…. so far as discrimination is concerned I'm afraid I did not fully understand what the precise allegation was or what evidence there was to back it up" (3/763). The Tribunal found his evidence concerning this to be unsatisfactory, stating "…. We find that very surprising as he generally discussed his cases with others in the legal department. There were others who had some experience and expertise of discrimination and even if one person failed to spot a possible claim, one would expect someone else to pick it up if it was being approached with an open mind".[73]From paragraphs 61 onwards in their Reasons the Tribunal make findings in relation to Mr. Chaudhary's application for entry onto the Specialist Register.[74]The Tribunal set out the legal basis for entry onto the Specialist Register and the background to the BMA's Judicial Review proceedings, to which we have already referred. At paragraph 64 the Tribunal found that Dr. Hawker understood the effect of that judgment in these proceedings to be that they could not challenge the imposition of the criteria by the STA. They found that Mr. Costello had written in support of Mr. Chaudhary's application (3/772), saying that his North Manchester training post in urology was recognised by the RCS although Mr. Costello "…. did not add what it was recognised for".[75]On 28 September 1998 the STA refused Mr. Chaudhary's application and stated that he was required to complete a further 25 months of training in urology and to pass the examination required before he would be allowed entry to the Specialist Register.[76]At this stage the BMA, knowing that a number of doctors would wish to appeal from the STA decision, set up the screening group to which we have already referred (see paragraphs 26 to 29 above). It was already clear that a number of doctors were making allegations of racial discrimination by the STA in their decisions. There was no evidence that the IROs had been informed as to what arrangements the screening group had for dealing with the applications for assistance.[77]Initially the screening group agreed to look for evidence of direct discrimination because of the numbers of doctors raising it in their applications for assistance. By late October 1998, however, they had received advice, apparently from the legal department, that allegations of racial discrimination in relation to decisions of the STA should be pursued in Employment Tribunals. There was evidence that some IROs did advise members then to issue Employment Tribunal proceedings. Subsequently, however, counsel advised the BMA that allegations of racial discrimination should be presented to the STA appeal panel and that it was dubious whether Employment Tribunals would have jurisdiction to determine such claims because of the provisions of Section 54 of the 1976 Act, which removed jurisdiction in cases where there was already provision for an appeal. Mr. Hughes informed the screening group of that advice at its meeting on 5 November 1998 and advised them that members who wished to take such a case should be advised "to produce actual evidence". The Tribunal found that it was not clear what Mr. Hughes had in mind when he made that remark as to what "actual evidence" might be. Dr. Hawker told the Tribunal that what he would have expected to see, as a non-lawyer, would be some evidence of a racially biased remark by one of the decision-makers or some evidence from the SAC that a person from a different ethnic background had had his training recognised in the same circumstances where an applicant had not. The Tribunal recognised that this latter evidence would be the sort of evidence which might be sought, although not from the SAC. They observed that it was perhaps not surprising that an eminent gastro-enterologist would be unused to considering the subtler forms of discrimination but they considered it surprising that Mr. Hughes was talking of members having to produce "actual evidence" without there being any arrangements put in place to provide them with guidance as to what sort of evidence would be appropriate.[78]They considered it even more surprising that thereafter the screening group did nothing consistent with a policy of attempting genuinely to identify whether there was any evidence of race discrimination. There was no evidence of any assistance from the legal department to assist IROs in searching for or identifying what evidence would be needed, as the Tribunal stated they would have expected. Although Mr. Hughes had stated that the legal department had given guidance to regional staff on the handling of cases raising discrimination, the BMA had not produced any evidence of such guidance, save that there was clear evidence that regional staff were told that claims could be launched in the Tribunal, but that jurisdiction was doubtful and that the members should raise race discrimination in STA appeals in addition. The Tribunal regarded that as sensible advice but considered that it only went so far.[79]Mr. Quigley could not remember if the BMA policy was to support STA appeals to the appeal body where race discrimination was alleged but he agreed that he had acted as the legal department representative on the screening group on occasions, as Mr. Hughes's deputy. The Tribunal found that there was no evidence of the legal department assisting the IROs to understand what sort of evidence might indicate discrimination. The only guidance provided made no mention of race discrimination at all and stated that "the Association believes that it should not become involved in the politics of the College's/Faculty's criteria". The Tribunal held that no-one had explained what that remark referred to but, in view of Dr. Hawker's evidence, they inferred that it probably referred to not challenging the assessment of the quality of the training by the Royal Colleges.[80]Dr. Hawker agreed that the screening group had decided that the criteria themselves could not be challenged by the BMA in assisting a member. The Tribunal found however that:
"The problem was that a challenge to a decision of a Royal College, certainly in the applicant's case and in all the other race discrimination cases, involved a challenge to the assessment of the quality of his training in the respondents' view. That was precisely what the respondents said that they could not challenge. Dr. Hawker agreed the screening group decided as a matter of policy at one of their meetings not to support a challenge to the assessment of the doctor's qualifications or training. It is difficult to see how allegations of race discrimination in the way that the STA operated their criteria would not involve a challenge to the assessment of the quality of the training."
[81]The Tribunal found on the evidence that the system of referring race discrimination cases to the IROs would have been adequate if there had been adequate organisation and recognition of how race discrimination might arise. They accepted Dr. Hawker's evidence that the screening group were advised that any allegations of race discrimination should not be considered by them but should be left for the IROs to handle with "direct advice from the legal department". The screening group therefore agreed to confine themselves to deciding whether there was evidence in the case presented to them of the STA failing to apply the established criteria consistently. Whilst it was envisaged that the screening group should be kept informed of the progress of any cases going forward on the basis of race discrimination, there was no evidence before the Tribunal that that had in fact happened. Further, despite the fact that the BMA had apparently established a Racial Equality Working Party at this time, Dr. Hawker was unable to tell the Tribunal what its terms of reference were and it was not involved in any of the relevant decisions in this case. Nor was it involved when the BMA had had any meetings with the CRE. After the screening group made their decision no arrangements were made for the group to make any reference in their decision to the IROs dealing with a race discrimination claim. Whilst, before the screening group decision, they clearly did deal with an allegation of race discrimination in Mr. Malkan's case (see below) thereafter, as was clear in Mr. Chaudhary's case, no reference at all was made to any such claim.[82]Mr. Chaudhary wrote to the BMA Secretary on 9 November 1998 alleging that the STA had discriminated against him in their decision and asking for assistance from the BMA. By this time his local IRO had changed and was now a Mr. Forster. He advised Mr. Chaudhary as to the time-limits for an appeal to the STA appeal body and as to the principles on which the BMA were prepared to provide representation. He told him that any application would be considered by a panel. Mr. Chaudhary responded, explaining that he was alleging race discrimination by the RCS and the STA in making the decision. Shortly after this the meeting between the BMA and the CRE referred to in paragraph 31 above took place.[83]In late December 1998 Mr. Chaudhary commenced his second set of Employment Tribunal proceedings in Manchester and informed Mr. Forster both as to these proceedings and the earlier Southampton proceedings which were then still awaiting a preliminary hearing. He also applied to Dr. Platt for a review of his earlier decision and was seeking a review of the STA decision. Mr. Forster advised Mr. Chaudhary in January 1999 that he should await the outcome of his review application in respect of the STA decision and that then, if necessary, he would forward his application to the screening group for representation at the STA appeal. Mr. Forster clearly knew that there was an allegation of race discrimination to be pursued at the STA appeal but he did not investigate any further the strength of the Applicant's case in order to represent him at the appeal, as the Tribunal stated they would have expected if the system which Dr. Hawker told them about was actually in place and he thought that he needed to obtain evidence.[84]Whilst the facts of Mr. Malkan's case were not exactly the same as Mr. Chaudhary's, he had also applied to the BMA for assistance in a Tribunal claim alleging racial discrimination against him by the STA and the Royal Colleges. This was rejected in January 1999, as his application for assistance to the screening group in relation to the STA appeal had been rejected in October 1998. The screening group had indicated that they would not support his appeal because it involved what they considered to be an assessment of the quality of his training which they did not consider that they could entertain. The screening group in his case said that they had assessed his case for race discrimination but could see no evidence of direct race discrimination. The Tribunal found that in Mr. Malkan's case, as well as Mr. Chaudhary's, there was no evidence of any reference to his IRO for assistance because there was an allegation of race discrimination. In January 1999 an Employment Tribunal also decided that it did not have jurisdiction to consider allegations of race discrimination by the STA and the Royal Colleges by one Dr. Krishnamurthy. Costs were awarded against him. The Tribunal in this present case found that the BMA had not done anything to support or assist Dr. Krishnamurthy in his STA appeal or to commit themselves to doing so in the future.[85]On 1 February 1999 Mr. Chaudhary's then solicitors, Russell, Jones and Walker, wrote a letter to the BMA pointing out that Mr. Chaudhary was then pursuing two sets of proceedings. They enclosed another copy of Mr. Panton's opinion and asked the BMA to support Mr. Chaudhary in both sets of proceedings. At the end of the letter they suggested that Mr. Chaudhary considered that the BMA might also be discriminating against him on racial grounds in refusing him assistance. His solicitor said that "…. Mr. Chaudhary has also asked me to point out that in the light of the difficulties he has had in obtaining legal assistance from the BMA as his trade union, he is becoming increasingly concerned that the BMA are approaching requests for assistance in cases of this kind in a way which may constitute unlawful direct or indirect discrimination contrary to Section 11 of the Race Relations Act 1976 . He has no wish to become embroiled in further proceedings of that kind and therefore asks that fresh consideration be given to the provision of legal assistance in relation to both Tribunal applications".[86]Dr. Armstrong referred this letter to the legal department and Mr. Quigley replied in a letter approved by Dr. Armstrong before it was sent. Dr. Armstrong had not investigated the possibility of discrimination against Mr. Chaudhary any further than that and, as the Tribunal found, no-one else had. In this letter (3/789) Mr. Quigley pointed out that the Tribunal appeared not to have jurisdiction to deal with the decisions of the STA. He asked for the solicitor's views of the chances of success in both Tribunal claims. He referred to the fact that the BMA gave legal assistance only in meritorious cases. He referred to three race discrimination claims of which he had conduct and stated that the BMA had given very careful consideration to all the issues involved so far as discrimination and the Specialist Register was concerned, that they had taken advice from specialist counsel on various aspects of the Regulations and had brought proceedings for Judicial Review. The Tribunal thought that it would be understandable for Mr. Quigley to seek the solicitor's views of the strength of his second Tribunal claim since he had not been given any opinion on the merits of that claim but they considered that "…. asking for their views on the merits of the first claim appears to us to be a deliberate attempt to bolster the impression that the legal department were rejecting assistance on the grounds that they did not assess the claim as likely to succeed and holding them out as reasonably reconsidering the position when we find that was not true. Mr. Quigley gave us no convincing reason why he should be asking the solicitor's opinion of the merits of the first claim when he already had counsel's opinion".[87]As a result of the order for costs having been made against Dr. Krishnamurthy, the BMA advised Mr. Chaudhary and others, through their IROs, to withdraw their Tribunal proceedings. This was good advice as the Tribunal found and Mr. Forster conveyed it to Mr. Chaudhary on 8 March 1999. However, nothing was said at this time as to assistance being available for the appeal to the STA appeal panel where race discrimination was being raised, if the claim appeared to be meritorious. The Tribunal stated that they would have expected there to be some reference to this in the circumstances.[88]On 24 March 1999 Mr. Quigley wrote to Mr. Coley pointing out to him that Mr. Chaudhary's solicitors had written to Dr. Armstrong. They referred to this memorandum which stated "…. The clear position that we are taking with Chaudhary and his lawyers is that we made decisions in his various applications for assistance in the past and we are not prepared to reopen those decisions now". The Tribunal observed that this was not actually what Mr. Quigley told Russell, Jones and Walker and they held that the object of that memorandum was to persuade Mr. Coley to say the same as the legal department were saying. Subsequently Mr. Quigley wrote to Mr. Forster making the same point. Referring to the possibility that Mr. Chaudhary might bring an action against the BMA for not supporting him in his cases against the various medical bodies he stated "…. The clear position that we are taking with Chaudhary and his lawyers is that we made decisions on his various applications for assistance in the past and we are not prepared to reopen those decisions now. I would suggest that you follow the same line in your dealing with Chaudhary. In other words, when asked for support in these actions you remind him that he asked the BMA for support in these actions previously and that the BMA decided not to support him. The key point is that we are not refusing to support him now. The decision not to support was taken some time ago". The Tribunal regarded this as a position that Mr. Quigley had decided upon, arising directly from the suggested allegation of race discrimination against the BMA, in order to protect any time-limits in favour of the BMA. It was not however the impression he had given Mr. Chaudhary or his advisers at any stage, although he did say in his memorandum that he was not clear what the other claim was and could not advise therefore as to whether it should be withdrawn.[89]The STA turned down Mr. Chaudhary's application for a review of their decision on 24 May 1999. By now Mr. Quigley had written to Mr. Chaudhary pointing out that he was not sure why he wanted further advice and that he had not yet heard from his solicitors in response to his enquiries. He asked Mr. Chaudhary if they were still acting. Mr. Chaudhary's response on 25 May was to tell Mr. Quigley that he had instructed his solicitors not to write to him in order to prevent duplication and saying that he had already supplied all the documents relating to his claims, that he did not know what else he could send Mr. Quigley and asking Mr. Quigley to contact Mr. Panton. The Tribunal found that as a result of this instruction the legal department were never in receipt of the views of Russell, Jones and Walker as to the chances of success in Mr. Chaudhary's second Tribunal claim. On 27 May Mr. Quigley wrote again to Mr. Chaudhary stating that a decision on the Southampton case had already been taken and that the Tribunal did not have jurisdiction in respect of any claim relating to the STA decision. Once again he asked for a concise summary of the situation and the issues upon which Mr. Chaudhary sought the advice of the BMA.[90]On 9 th June 1999 the meeting between the BMA and the CRE took place, referred to at paragraph 32 above. Later that month the reserved decision in the Southampton Tribunal proceedings was promulgated. On 15 July 1999 Mr. Chaudhary asked Mr. Forster if the BMA were going to assist him in his STA appeal and stated the grounds on which he wished to appeal. Mr. Forster told him that he needed a response from the legal department.[91]On 24 August 1999 Mr. Chaudhary's time for appealing against the refusal ended because it was three months from the review decision. Mr. Quigley wrote to the CRE for a reply to his query about race discrimination. He also wrote to Mr. Chaudhary, still asking him for a summary of the issues. To Mr. Forster he stated "…. I can't seem to get him to tell me in simple terms what he wants. I can't see it matters who are the respondents". The Tribunal found that he was clearly suggesting that he was still reviewing the position and in the meantime Mr. Chaudhary was still asking for a decision about whether the BMA would support him in an appeal against the STA decision.[92]By September 1999 the CRE were no longer dealing with Mr. Chaudhary's case and notified Mr. Quigley accordingly. On 20 September 1999 Mr. Forster told Mr. Chaudhary he assumed that he wanted his application to go to the screening group. He said that he had discussed Mr. Chaudhary's case with Mr. Quigley but did not suggest to him that it was for him or for the legal department to consider the race discrimination allegation.[93]Mr. Chaudhary's application was then submitted to the screening group, together with a summary created by the secretariat and a large number of papers which had accumulated over the years. This summary stated clearly that Mr. Chaudhary believed that he had been discriminated against on racial grounds. The correspondence relating to the two Tribunal cases was included, as was the note which Mr. Quigley made of the meeting held on 10 June 1998. Mr. Coley's response to Mr. Quigley's note however was not included. Further the bundle did not contain any copies of counsel's opinion in relation to the first Tribunal claim though the Tribunal recognised that that advice related to the first Tribunal proceedings, which were not to do with the decision of the STA itself. Mr. Hughes suggested that in considering the application for support on appeal it would be necessary to appraise the application on the basis of the standard criteria and he noted the difficulty surrounding the status of Mr. Chaudhary's training between 1991 and 1995. The memorandum sent by Mr. Hughes did not deal with the allegations of race discrimination at all and stated that Mr. Chaudhary's case could not proceed on the transitional provisions. The Tribunal regarded his decision as unclear. The arrangements made were for the papers to be sent to members of the group who would then report back to a Ms. Whisken of the secretariat. She then had to collate all the views of the group. There was no group discussion. Mr. Mohib Khan disagreed with the others and took the view that cases such as Mr. Chaudhary's involving a challenge to the application of the criteria should be supported. Dr. Hawker voted not to support the claim. He told the Tribunal that he looked to see if Mr. Chaudhary was entitled to have his training recognised under any other criteria apart from the non-consultant career grade provisions, but decided that he did not. The Tribunal found that it was not at all clear what Dr. Hawker had considered under that part. Ms. Whisken collected a majority of votes against, of which Dr. Hawker's vote was probably the most powerful, though the rest of the group were voting in accordance with the policy which they had set. In the circumstances the Tribunal concluded at paragraph 100:
"We conclude that the majority of the steering group were undertaking a limited exercise to decide whether the STA had applied their criteria under the non-consultant career grade provisions consistently. They did not consider the applicant's points which he made clearly. We accept the decision was a majority one."
[94]At paragraphs 103 to 120 the Tribunal dealt in some detail with the evidence given by the other doctors called as witnesses by Mr. Chaudhary or who had made statements which were read by the Tribunal. In the majority of cases the Tribunal considered that some of the evidence was unreliable and/or that it did not assist them in determining the issues in Mr. Chaudhary's case because the circumstances were not really similar. We shall therefore not refer to them.[95]In relation to Mr. Malkan the Tribunal found that there was no necessity to go into detail as to why the BMA had decided not to support his Tribunal claim, alleging race discrimination in the failure to shortlist him for an appointment as senior registrar. This was because there was already evidence before the Tribunal, which they accepted, that the BMA had supported ethnic minority doctors in the sort of claim which Mr. Malkan was making, for race discrimination by Health Authorities or NHS Trusts in promotion or appointment cases. In 1996 Mr. Malkan's application to be admitted to Specialist Registrar grade was refused by his Post-Graduate Dean, Professor Temple, and Mr. Malkan complained to a Tribunal that that decision was racially discriminatory. The BMA refused his application for assistance but Mr. Malkan received assistance from the CRE which, as at the time of this Tribunal's Decision, was continuing on appeal. (He had succeeded on grounds of victimisation.) In the course of those proceedings Mr. Malkan had sent to the BMA the statistics about registrars' access to approved posts after 1989. These were the statistics passed to the legal department and to which the Tribunal referred at paragraph 60, finding that the department had not taken them seriously or made any further enquiries into them. Subsequently the STA refused Mr. Malkan's application for entry onto the Specialist Register and he sought assistance from the BMA in challenging that decision on grounds of racial discrimination. That application for assistance was rejected by Mr. Pilkington of the BMA in January 1999. The Tribunal found at paragraph 119 that Mr. Pilkington said that Mr. Malkan had not been placed on the Register because the STA had determined that he was unable to satisfy the requirements of Article 12 (2) (c) (ii) of the Order as determined by the Surgical Royal Colleges. He said that the criteria applied to all doctors irrespective of race and that therefore the application of them to Mr. Malkan's case did not amount to unlawful direct discrimination on racial grounds. The Tribunal held that that approach "…. does not allow for any claim that the application of the criteria by the Royal College in a particular case itself was discriminatory. It is too simplistic to be correct." By this time Mr. Malkan's application for assistance on appeal had already been rejected and there was no suggestion in Mr. Pilkington's letter to him that it could be reconsidered. In the event Mr. Malkan did appeal to the STA appeal panel and his appeal finally resulted in a change of the decision, which meant that he could meet the conditions imposed. The Tribunal found that in Mr. Malkan's case as well as Mr. Chaudhary's, the rejection of assistance, both by the steering group and later by Mr. Pilkington's letter, showed a failure to recognise facts put forward by their member which could amount to a case of race discrimination and "…. an unquestioning acceptance that the Royal Colleges' assessment of the doctor's training was sacrosanct".[96]The Tribunal's conclusions, given these findings of fact, were set out at paragraphs 122 to 135. They emphasised that they had taken into account all the submissions made by both counsel and had read and considered the cases to which they had been referred. They stated that, whilst they had considered all the submissions made, they had tried to confine their reasons to those which they considered important in order to explain their decision.[97]The Tribunal began by reminding themselves of the CRE's recommendation to the BMA, following their investigation in the 1990s, that they should address members' concerns and support members who believed that they had suffered from discrimination. They made allowance for Mr. Quigley's difficulties in recalling events which had occurred some considerable time ago although they observed, correctly in our judgment, that the events were largely documented and that Mr. Quigley had had access to all the documents. The Tribunal did not regard his evidence as credible or reliable. They found his evidence about the conclusions he reached to be "…. contradictory in some respects and incredible in other respects". They accepted that when the legal department was first faced with the problems presented by Mr. Chaudhary's case it was not a straightforward or obvious case of racial discrimination. Ms. Anstey however did not pursue the answers to questions she had raised and she arrived at a mistaken view of the situation without any real evidence to substantiate it.[98]At the time Mr. Quigley took over the file and thereafter they found that there was no real consideration of the possibility of racial discrimination to which Mr. Chaudhary was alerting them and that Mr. Quigley had just "…. brushed it aside". Thereafter there was throughout:
"…a refusal by the respondent's legal department to consider the strengths of the applicant's case and no analysis of it. There was a refusal to acknowledge that there could be a claim of any sort. There was more than one opportunity to reconsider the position with a new factor. It seems to us that legal advice from another source to the contrary was something that should cause the respondents to reconsider their position."
Having regard to the BMA criteria for giving support to members the Tribunal found that the question of whether there may be racial discrimination by the authorities in the application of the criteria in individual cases could well be a major point of principle and that they would have expected some consideration of that question by the BMA in any event.[99]At paragraph 126 the Tribunal considered but rejected the suggestion that the BMA's conduct towards Mr. Chaudhary was due simply to incompetence. The BMA maintained that they had throughout acted reasonably and genuinely on the available evidence. In their closing submissions however they had submitted in the alternative, relying on the case of Glasgow City Council –v- Zafar [1998] ICR 120 , that even if the Tribunal concluded that they had been wrong and guilty of "misjudgment", the Tribunal should not infer that such misjudgment meant that the refusal to support Mr. Chaudhary, the delay in dealing with his requests or the refusal of Mr. Quigley to meet him were done on racial grounds (2/529). The Tribunal held that the facts they had found suggested something more than incompetence or misjudgment and that a refusal to consider the merits of a claim, even in the face of counsel's opinion and in consultation with Mr. Hughes and others, pointed away from individual incompetence.[100]The Tribunal also considered but rejected the BMA's suggestion throughout that they did not understand what Mr. Chaudhary's discrimination case was or what evidence of discrimination was being put before them. This they considered was not supported by the evidence (see paragraphs 126 and 130.) The Tribunal held that the BMA "…. never evaluated the applicant's evidence, to decide whether it was a weak case. They merely said that there was no case." They regarded as particularly striking and significant the fact that when Mr. Quigley was faced with an explanation and evaluation of a case of racial discrimination by the Post-Graduate Dean and/or the Royal College, in the form of counsel's opinion, he "…. sought to discredit the giver of the opinion rather than research the evidence or evaluate the strength of the case for himself". This was a clear reference to Mr. Quigley having researched counsel's status and the address of his chambers but not having considered or investigated himself the merits of Mr. Chaudhary's complaint.[101]In relation to Mr. Chaudhary's appeal against the STA decision, the CRE had pointed out to members of the screening group, including Mr. Hughes, at the meeting in June 1999 that the way the Royal College applied their criteria should be examined. However, the Tribunal held that the screening group:
"….continued to apply the same principles which they had already decided to the decisions which included the principle that they could not challenge the assessment by the Royal College of the training which had been undertaken. No steps were taken to assist members to present a claim of race discrimination in their STA appeal. Allegations of race discrimination in decisions of the Royal Colleges inevitably of course challenge the assessment of the Royal College in one sense, although it was a challenge on limited grounds. Such a challenge did not involve the expertise considered by Dr. Hawker to be beyond the screening group or the respondents."
[102]On the basis of the facts found the Tribunal therefore drew the inference that, in the circumstances which existed in this case, Mr. Quigley and the legal department were not prepared to contemplate a case of racial discrimination against a Post-Graduate Dean, the Royal College or the STA. Whilst they did recognise and support those cases, such as Mr. Malkan's, where racial discrimination was alleged against an NHS Trust or a Health Authority, they were not prepared to consider a case against the professional and regulatory authorities.[103]The Tribunal then turned in paragraph 129 to consider direct racial discrimination. They found, in relation to a number of discrete incidents, that each decision by the BMA not to assist Mr. Chaudhary was a refusal to provide him with access to facilities or services and that, on each occasion, Mr. Chaudhary was treated less favourably than someone who was given the support or services of the legal department. These occasions were identified as the original refusal to support his claims in December 1997, the further refusal when they reconsidered the matter in June 1998 in light of counsel's opinion, the refusal to support either of his cases in February 1999 and lastly their decision not to support his appeal to the STA appeal body in December 1999. However, the Tribunal, whilst rejecting the BMA's explanation that they refused support to Mr. Chaudhary because they could not understand the claim, did not proceed to draw an inference that any refusal of support was on racial grounds. They found:
"It seems to us that the evidence that the respondents do recognise and support claims for race discrimination in appointment and promotion cases for Asian and other ethnic minority members is a powerful argument against such inference. We do not feel that the primary facts lead us to infer that those refusals were on racial grounds."
[104]In paragraphs 131 to 133 the Tribunal addressed the complaints of indirect discrimination and victimisation and, in view of their importance in this appeal, we set them out in full here:
"131. The applicant submitted in the alternative that the respondents' attitude was that the Postgraduate Dean, the Royal College and the STA could not be discriminating on racial grounds in making their decisions and that that was applying a requirement or condition to race discrimination claims by members that in order to achieve support the claim should not allege race discrimination against those bodies. We have concluded that the respondents refused to recognise the possibility that the Royal Colleges, the STA, Postgraduate Dean or the SACs might discriminate on racial grounds. We do find that that attitude meant that anyone producing that sort of claim did not have it evaluated or considered in reality. We come to the conclusion that the respondents have therefore imposed a requirement or condition on claims from members that in order to be considered they should not include a claim that the Royal Colleges, Postgraduate Dean or the STA have discriminated on racial grounds in applying their criteria and making their decisions. We think it may well not be a deliberate policy but a result of the attitude of mind of those who had to make decisions on behalf of the respondents. It did persist despite indications to them by others that race discrimination could exist in that form. 132. In addition, we do accept that the respondents refused to contemplate that they could be discriminating themselves. They did not take the opportunity to consider the position anew when the applicant's solicitors wrote to them, even though they gave the applicant the impression that they had or that they would be prepared to do so. After that letter, any refusal to support the first case was, in our view, by reason of the fact that the applicant complained that they might be discriminating on racial grounds because the respondents' legal department clearly decided that they should not make a new decision in order to avoid the time limit running anew. In our view that meant that the applicant was treated less favourably in relation to his first case by the decision then made not to support it, than someone who had not alleged that the respondents might be discriminating against him. The latter person might have had his claim reconsidered. That act was, however, in February 1999. 133. The STA appeal, in our view, was not in the same category so far as that was concerned and we find that the decision on the STA appeal given by the letter of 2 December 1999 was not victimisation discrimination of the applicant by the respondents. We find that the respondents considered his application for support in the STA appeal in exactly the same way in which they had dealt with others where the member had not alleged race discrimination by them. We do however come to the conclusion that the decision not to support the applicant in his STA appeal was as a result of the discriminatory requirement or condition that such support would not be given if a member was alleging race discrimination by the Royal College or the STA. We do accept that a considerably smaller percentage of Asian members of the respondents were able to comply with the requirement or condition actually imposed than other members, because it was largely the members from the Indian subcontinent who had their applications rejected by the STA and also largely those members who alleged race discrimination by the Royal College in the STA exercise. The respondents did not suggest that if we found such an approach was a requirement or condition, it could be justified, but in the circumstances we are satisfied in any event that such a requirement could not be justified."
[105]In these circumstances the Tribunal were satisfied that they had jurisdiction to decide this case because they had found that there was an act of discrimination within the period of three months immediately preceding the presentation of the claim. They therefore considered whether that act was an act in a series of acts of discrimination for the purposes of Section 68 of the 1976 Act and concluded that it was. The same requirement or condition had been imposed by the Respondents in relation to all their decisions on Mr. Chaudhary's various applications. In relation to victimisation, whilst acknowledging that this was a different form of discrimination, they found that it arose out of the same circumstances and were satisfied that it was just and equitable, so far as necessary, to allow Mr. Chaudhary to rely on that act. The Issues to be Determined in this Appeal[106]The BMA's grounds of appeal against the Liability Decision can be grouped into four categories. They contend that:(1) The inference drawn by the Tribunal to the effect that the BMA would not contemplate supporting discrimination complaints against certain professional bodies was perverse in that it was not supported by the evidence and/or was perverse in light of the Tribunal's findings of primary fact and/or the Tribunal did not give adequate reasons for its Decision;(2) The finding of indirect discrimination was based upon a misunderstanding and/or misapplication of the law;(3) The finding of victimisation was based upon a misapplication of the law and/or was perverse; and(4) If the Tribunal's finding that there was racial discrimination in December 1999 is wrong, his other complaints were out of time. Alternatively, there was no "continuing act" which could be regarded as meaning that the complaints relating to matters outside the three-month time-limit were in time.[107]In his oral submissions to us Mr. Cavanagh QC began with the second of these categories. He did so, on the basis that, even if he did not succeed on the first category and the inference drawn by the Tribunal was held not to be perverse, he contends that in any event they erred in law in determining that this amounted to indirect discrimination within the meaning of the legislation. However, there was a sustained perversity challenge in this appeal and we took the view that it was more appropriate to determine that ground first and to examine the evidential and factual basis for the inference drawn and the adequacy of the Tribunal's reasoning before considering whether the Tribunal erred in law in their finding on indirect discrimination. We shall therefore deal with the issues in the order in which they appear above and in which they were dealt with in both parties' skeleton arguments. (1) PERVERSITY[108]Under this heading the list of issues requiring determination are as follows:
"1. Whether the inference drawn by the Tribunal that the Respondent would not contemplate supporting discrimination claims against certain bodies was perverse in that it was not supported by the evidence and/or was perverse in light of the Tribunal's findings of primary fact and/or whether the Tribunal failed to give adequate reasons for this conclusion. 2. Whether the Tribunal should have identified exactly the nature of the claims that the Applicant wished to make against the bodies concerned and formed a view of his prospects of success (and whether it was necessary for the tribunal to determine and set out the Applicant's prospects on each given complaint as a pre-condition to drawing any inference). 3. Whether there was evidence before the Tribunal upon which it could find that the Applicant had good prospects of success for his claim against the said bodies. (Whether there was evidence before the Tribunal upon which it could conclude that there was a refusal to consider the strengths of the Applicant's complaints and that the Respondent had closed its mind to the possibility of a claim against certain bodies.) 4. Whether the primary findings of fact made by the Tribunal could support the said inference. 5. Whether the Tribunal gave adequate reasons for drawing the aforesaid inference in general terms. 6. Whether the Tribunal sufficiently examined, differentiated between and provided adequate reasons for the inferences which it made in respect of the separate refusals of support which it found to be discriminatory and/or was perverse as above in those decisions: (a) in respect of the refusal in December of 1997; (b) upon receipt of Counsel's opinion in June of 1998; (c) in respect of the repeated refusal to support the Southampton case in February of 1999; (d) in respect of the decision of the Screening Group in December of 1999."
The underlined sentences were added by the Respondent's representatives and were not agreed as issues by the Appellants. We consider however that they are issues which require determination in this appeal and that it is important in this case that we should determine all the issues raised by the parties.[109]It can be seen that the BMA contend not only that the inference drawn was perverse in the light of the findings of primary fact, but also that it was not supported by the evidence. Much time was therefore spent during this appeal in examining the documentary evidence which was before the Tribunal and in considering counsel's submissions either that it did not or, on Mr. Chaudhary's side, that it did provide an evidential basis for the Tribunal's conclusions. In such circumstances this Appeal Tribunal must proceed with caution. Assessing the oral and documentary evidence, deciding which evidence is credible and reliable, determining the facts and whether and if so what inferences can be drawn from them are pre-eminently the tasks of the Employment Tribunal. They arrive at their findings on the whole of the evidence laid before them, which will include the view they form as to the credibility of the witnesses who give evidence and as to the interpretation to be placed on the contents of particular documents. This Appeal Tribunal is at an obvious disadvantage in re-visiting the facts and in being asked to categorise the Tribunal's criticisms of witnesses as unfair or their interpretation of some of the documents as incorrect without the benefit of hearing all the evidence.[110]These general propositions have a particular significance in cases involving allegations of discrimination. Such cases are generally fact-sensitive, as the House of Lords recognised in Anyanwu v South Bank Students' Union [2001] IRLR 305 (see paragraphs 24 and 37). When examining the stated reasons for particular acts or omissions in the context of allegations of discrimination, the presence or absence of transparency and consistency in the evidence and the credibility of witnesses who seek to explain their actions and decisions are important factors in the task of the fact-finding Tribunal. So long as it is clear that they have approached their task correctly, have considered the contentions of the parties, have understood and correctly applied any relevant legal principles and have adequately expressed the reasons for their decision, this Appeal Tribunal should not interfere with the Tribunal's factual conclusions or the inferences they drew from them.[111]We agree with and adopt the reasoning of this Appeal Tribunal in the case of Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 (Mummery J. presiding) at paragraph 33:
"(2) Whenever an appeal is based on the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is 'irrational', 'offends reason', 'is certainly wrong' or 'is very clearly wrong' or 'must be wrong' or 'is plainly wrong' or 'is not a permissible option' or 'is fundamentally wrong' or 'is outrageous' or 'makes absolutely no sense' or 'flies in the face of properly informed logic'. This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness. It is an area in which there may be no 'right answer'. The consequence of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to 'meticulous criticism' or 'detailed analysis' or to trawl through it with a 'fine-tooth comb'. What matters is the substance of the Tribunal's decision, looked at 'broadly and fairly' to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion. Viewed in that way, the decision of the Industrial Tribunal is not perverse. (3) We recognise that in this area no one is better placed to make a decision on the facts of a particular case than the Industrial Tribunal."
[112]These words have been approved and emphasised again more recently by the Court of Appeal in Yeboah v Crofton [2002] IRLR 635 where, at paragraph 12, Mummery LJ stated:
"When the principal ground of appeal is, as here, perversity of the decision of the fact-finding tribunal, there is an increased risk that the appellate body's close examination of the evidence and of the findings of fact by the employment tribunal may lead it to substitute its own assessment of the evidence and to overturn findings of fact made by the employment tribunal. Only the employment tribunal hears all the evidence first hand. The evidence available to the Employment Appeal Tribunal and to the Court of Appeal on an appeal on a question of law is always seriously and incurably incomplete. Much as one, or sometimes both, of the parties would like it to be so, an appeal from an employment tribunal is not a re-trial of the case. The scope of the appeal is limited to consideration of questions of law, which it is claimed arise on the conduct of the proceedings and the decision of the employment tribunal. The legal points must, of course, be considered in the context of the entirety of the proceedings and the whole of the decision, but with an awareness of the limitations on the court's competence to question the evidential basis for findings of fact by the employment tribunal. It is a rare event for the appellate body to have all the documents put in evidence in the employment tribunal. No official transcript of the oral evidence exists. If an order is made for production of the chairman's notes, it is usually on a selective basis, related to the particular grounds of appeal, which should always be particularised on a perversity challenge. Most important of all, none of the witnesses give oral evidence on an appeal."
We have therefore approached this ground of appeal with that guidance firmly in mind.[113]In the discrimination context, as Mr. Cavanagh points out, the drawing of inferences usually arises where direct discrimination is alleged, though he does not submit that inferences can never be drawn in the context of indirect discrimination. In the case of direct discrimination, if less favourable treatment of the complainant has been established or admitted, the Tribunal then decides on all the evidence whether they should proceed to draw an inference that the less favourable treatment was on grounds of race or sex, in accordance with the provisions of the Sex Discrimination Act 1975 and the Race Relations Act 1976 . In this case the Tribunal were not prepared to draw that inference and dismissed the complaint of direct racial discrimination. They did, however, infer on the evidence and the facts found that the BMA were not prepared to contemplate and support a case of race discrimination against the professional and regulatory authorities, in the way they applied the criteria in deciding training and qualification issues.[114]It is important to identify correctly at the outset the inference which was drawn here. One of Mr. Cavanagh's submissions was that the inference was that which is set out at paragraph 3 of the summary in the Decision, before the Extended Reasons. It was, he submits, expressed in bold terms and was not limited to the decisions of the authorities on the criteria to be applied in transition to the new scheme and for determining recognition of training posts. It was thus far too widely drawn, was unsupported by the evidence and was evidently absurd. On that ground alone we should find that it was perverse.[115]If it were the case that this Tribunal had inferred on the evidence before them and the facts found that the BMA would never in any circumstances contemplate assistance and support for a member who had, for example, been the victim of racial abuse or racial harassment by a Post-Graduate Dean, Mr. Cavanagh's criticism would have some merit. We are not persuaded however that this is a permissible reading of the Tribunal's Decision. It is clear that Mr. Chaudhary's complaint, which was all that the Tribunal had jurisdiction to determine, raised only the existence of discrimination by the authorities in the way he was dealt with under the transitional rules for entry to the new scheme and in respect of the criteria which were applied in his case. Throughout their Reasons the Tribunal consider only these issues when examining the decision-making by the BMA. In our judgment it is clear from their Decision and in particular paragraphs 128 and 131, that in drawing the inference they did, the Tribunal were making a distinction between cases of non-appointment or promotion in employment, involving allegations of racial discrimination against an NHS Trust or a Health Authority, which the BMA would and did support, and cases where the member was alleging discrimination by the authorities "…in applying their criteria and making their decisions". In our judgment the only sensible reading of the Decision, taken as a whole, was that the inference drawn by the Tribunal on the evidence was that identified in paragraph 113 above.[116]The inference drawn in this case led directly to the finding of indirect discrimination and we accept Mr. Cavanagh's submission that guidance given in the reported cases on the drawing of inferences in direct discrimination cases is therefore of some relevance and assistance. This should not be over-stated however. The drawing of an inference that a Respondent treated an Applicant less favourably on racial grounds and thus directly discriminated against him is a very different context for the drawing of an inference from primary facts, which arises in the present case. It has been the subject of much judicial attention over the years because of the difficult and sensitive issues which can arise in direct discrimination cases and which merit special consideration and guidance to Employment Tribunals. Good examples of this can be seen most recently in the cases of Anya v University of Oxford [2001] ICR 847 and Law Society v Bahl [2003] IRLR 640 , this latter case considering the relevance in particular of unreasonable behaviour by a Respondent in the context of allegations of direct discrimination.[117]Nevertheless we accept that in the present case the following legal principles apply:(a) there should be a sound factual basis for the drawing of the inference;(b) the Tribunal's reasoning in that process should be adequately explained;(c) the Tribunal should not be too quick to draw an inference of indirectly discriminatory conduct when there is an obvious inference to be drawn from the facts that the treatment of the Applicant was due to some other, non-discriminatory cause advanced by the Respondent; and(d) different Tribunals may reasonably reach different conclusions on the inference to be drawn and the Appeal Tribunal is not entitled to interfere solely on the ground that it would have taken a different view of the evidence and the facts; see Effa v Alexandra Health Care NHS Trust and Jenkinson [CA unreported 05.11.99], Chapman v Simon [1994] IRLR 129 and Marks & Spencer Plc v Martin [1998] ICR 1005. Mr. Cavanagh submits that the Tribunal failed the first three tests in this case, that they were not entitled to draw the inference they did and that we should interfere.[118]In this case he submits that in order to draw the inference they did the Tribunal must have rejected three alternative explanations which arose on the evidence for the BMA's conduct. The reason they rejected Mr. Chaudhary's request for assistance and support was:(1) because, having investigated and considered his case fully, they held a genuine and reasonable belief that he did not have a good case for alleging race discrimination against the authorities; or(2) they did not understand the case of race discrimination that Mr. Chaudhary was advancing, he never provided them with persuasive evidence to support his assertions and they concluded that his case did not merit the BMA's support; or(3) they held a genuine but mistaken or incompetent belief that he did not have a good case. Mr. Cavanagh criticises the Tribunal for drawing the inference they did when the obvious inference on the evidence was that the BMA reasonably or, alternatively, unreasonably but honestly considered that Mr. Chaudhary had no case. He submits that the Tribunal should have found that the decision not to assist or support Mr. Chaudhary was reasonable or that, if it was mistaken or unreasonable, it was nevertheless genuinely taken because the BMA did not understand the nature of his case. The inference drawn was, he submits, irrational in light of the findings of primary fact recorded in the Decision and, further, was irrational in light of the evidence before the Tribunal.[119]We accept that a number of alternative, non-discriminatory explanations for their failure to assist and support Mr. Chaudhary were being advanced by the BMA, although the alternative explanations appear to have evolved as the case progressed. Their pleaded defence was the first of the explanations referred to above, the BMA contending that they had investigated the merits of his case, considered them very carefully and reasonably concluded that there were no prospects of success for his claims (see 1/315 and 316). Mr. Quigley, in evidence, referred to not understanding Mr. Chaudhary's case and not being provided with answers to his requests for information, as is clear from the Tribunal's Decision. The third alternative, the "mistaken or incompetent belief" explanation was raised in the BMA's written closing submissions, in the context of the Zafar case and the submission that the Tribunal should not infer, even if they considered the refusal to support Mr. Chaudhary was a "misjudgment" by the BMA, that the refusal was on racial grounds.[120]In relation to the first of these explanations we note also that, by the end of the hearing, the case being advanced in closing submissions on behalf of the BMA was not that they had investigated and considered Mr. Chaudhary's case carefully before concluding that there was no case, but that the BMA "…was entitled to conclude that the claim was without merit and moreover that there was no sufficient basis even for an investigation. Whilst it may be possible to see lines of investigation that could have been followed in respect of the allegation of race discrimination it is submitted that Mr. Quigley in particular did not investigate further because of his firm and genuine belief that the [North Manchester] post was not approved..." (2/528).[121]We shall deal first with issues (2) to (6) on the list in relation to this ground of appeal (see paragraph 108 above), these issues being the particular bases for the general challenge identified in issue (1). On the second issue Mr. Cavanagh submits that, before the Tribunal could draw the inference they did, they should have identified exactly the nature of the claims that Mr. Chaudhary wished to make against the bodies concerned and formed a view about the prospects of success of such claims. There is nothing in the decision to identify the good race discrimination claim against the authorities that the Tribunal found the BMA to have closed its mind to and this failure, he contends, is an error of law. Mr. Hendy on the other hand submits that it was unnecessary for the Tribunal to determine the nature of and prospects of success on each of his complaints as a pre-requisite for the inference they drew on the facts of this case.[122]The difficulty with Mr. Cavanagh's submission is that it seems to us to start at the end of the story. It charges this Tribunal with the task of doing that which Mr. Chaudhary alleges, and the Tribunal found, that the BMA should have done in the first place. The essence of Mr. Chaudhary's complaint against the BMA was that something irregular and unexplained had happened to him in the process of transfer to Specialist Registrar grade. His application for transfer had been refused as a result of what he considered to be an incorrect application of the rules, with the additional and unwarranted requirement of SAC approval for the North Manchester post being applied in his case. It had very serious consequences for Mr. Chaudhary's career. He could see no valid explanation for it and, as time passed and no valid explanation was forthcoming, he suspected that racial discrimination lay behind it or at any rate played a part in it. He wanted the BMA legal department to assist him by investigating his concerns and supporting his complaints. He considered that he was entitled to expect the BMA to be receptive to his expressed concerns, to retain an open mind, to carry out a thorough investigation of the facts and to be prepared to probe and question and not simply to accept, at face value, repeated assertions that something was factually correct, in particular when those assertions emanated from those in authority suspected of discriminating and when what is asserted appears to be inconsistent with the relevant, regulatory documentation. It is clear from their decision that the Tribunal agreed with him. Whilst acknowledging that this was not originally an obvious or straightforward racial discrimination complaint, the Tribunal considered that there was a lack of transparency concerning the basis for the refusal of Mr. Chaudhary's application for transfer, which merited investigation. The IROs, in particular Tony Coley, supported Mr. Chaudhary in this and sought help from the legal department. Once the question of race discrimination had been raised the requirement for a closer investigation became even more necessary. The Tribunal regarded as being of particular significance in this context the earlier involvement of the CRE, the concerns they had raised in respect of the recognition of training for ethnic minority and in particular Asian doctors and the recommendations to the BMA that they should provide support to members who believed that they had suffered discrimination.[123]We do not accept Mr. Cavanagh's submission that this places an unacceptably onerous burden on the BMA or that it was not reasonable to expect them, for example, to challenge Professor Temple's assertions or to embark on a statistical gathering operation concerning other applications for transfer and comparative success rates. What this Tribunal considered they should have done was to carry out a proper evaluation of Mr. Chaudhary's case, that is a sufficiently detailed and rigorous investigation to enable them to form a view, in accordance with their criteria for supporting members' cases, as to the prospects of success for any complaint of racial discrimination, direct or indirect, or the extent to which what had happened to Mr. Chaudhary raised a point of principle for the medical profession generally.[124]This, it seems to us, does not involve a trade union or professional association in an unduly sophisticated or onerous task. Racial discrimination can arise in an infinite variety of factual situations and take many forms. Some cases may be straightforward and require little by way of investigation or preparation in order for the situation to be clear and a view to be taken. In other cases the discrimination is more subtle in form or not immediately apparent. It requires a more careful and detailed investigation, having regard to the relevant statutory provisions and case law and to what has to be demonstrated in order to establish that unlawful discrimination has occurred. This sort of investigation could not reasonably be regarded as unduly complex or burdensome for a large, professional organisation, part of whose remit is to offer assistance and support to members on employment issues, as this Tribunal found.[125]In any event, whilst Mr. Cavanagh now makes this submission on behalf of the BMA in the Appeal Tribunal, the BMA themselves did not at the time advance this as a reason for failing to assist Mr. Chaudhary. No letter or memo from the legal department or Dr. Armstrong that we have seen suggests that investigating Mr. Chaudhary's complaints will be unduly difficult or time consuming or could not reasonably be accommodated within their resources. Nor was this claim advanced in the Tribunal below.[126]Nor do we accept Mr. Cavanagh's submission that the BMA were entitled to accept at face value and regard as incontrovertible the statements from Professor Mundy (Chair of SAC in urology) and Dr. Platt (Post-Graduate Dean) or the advice they received on the matter from Professor Temple (Chair of the Calman Implementation Steering Group), on the basis that the statements came from eminent members of the regulatory authorities, who ought to know what the position was. If, viewed dispassionately and objectively, their assertions as to the need for SAC approval appear to be inconsistent with relevant regulatory documentation and other available information, the eminence of the source of the assertion cannot by itself be regarded as resolving that inconsistency or as removing the need for any further enquiry into a complaint of discrimination.[127]In the present case the Tribunal considered that Mr. Chaudhary's treatment raised legitimate and troubling questions, which needed to be answered. The racial discrimination he alleged had occurred was not immediately apparent. His concerns necessitated a proper investigation and evaluation by the BMA. The Tribunal found that, although he was supported by the IROs, in particular Tony Coley, the "decision-makers" in the form of the legal department and later on the BMA Secretary, Dr. Armstrong, failed from the start to engage with Mr. Chaudhary's concerns and to assist him in investigating them. This failure and, as the Tribunal termed it, this "attitude of mind" persisted throughout the period with which they were concerned and did not change even when, through his own efforts and contacts, Mr. Chaudhary provided them with other information, including the fact of supportive, independent legal advice and a positive advice on merits from counsel; in other words information which tended to show that discrimination was in play here or, at any rate, that there was a case to be answered. As the Tribunal expressed it, the BMA never evaluated Mr. Chaudhary's case but merely said that he had no case.[128]In these circumstances we do not consider that it was necessary for the Tribunal, before drawing the inference they did, to have identified exactly, as opposed to generally, the nature of the claims that Mr. Chaudhary wished to make against the bodies concerned, or to have formed a view as to his prospects of success. That obligation was found to lie in this case on the BMA, whose role it was to investigate his concerns, gather evidence, question the assertions being made and then to advise as necessary on the prospects of success. Mr. Chaudhary's complaint before the Tribunal was not limited to allegations of failure to support his Tribunal claims but covered the entire period from his first contact with the BMA in 1996 through to the refusal of the screening group to support his appeal to the STA panel. The Tribunal made their findings of fact and drew the inference they did on the whole of this evidence. In so doing, we consider that the Tribunal did sufficiently identify the nature of the claims that Mr. Chaudhary sought to make against the authorities, both in respect of refused entry to Specialist Registrar grade and, secondly, refused entry to the Register, which it is accepted flowed directly from the first refusal. We shall address this further below.[129]Mr. Cavanagh's submissions on the third issue formed the crux of his challenge to the Tribunal's reasoning. There was, he submits, no evidence before the Tribunal enabling them to conclude that Mr. Chaudhary had a good claim for race discrimination against the authorities; and yet the Tribunal rejected the BMA's explanation and drew the inference they did because they considered that Mr. Chaudhary's case was so obvious that the only explanation for the BMA not recognising it was the existence of closed minds. Since the Tribunal never set out the evidence or legal arguments which demonstrated this obvious case of race discrimination they were not entitled to find that he had a good claim, to reject the BMA's explanation that they could not understand his claim and to draw the inference they did. Their finding of indirect discrimination was therefore perverse.[130]Mr. Hendy submits that this is an incorrect analysis of the Tribunal's decision and that Mr. Cavanagh is trying to reinterpret the facts found. It was not necessary for the Tribunal to find that Mr. Chaudhary had a good claim and, whilst the Tribunal rightly considered that the evidence before them indicated that he did have a valid argument that race discrimination had occurred, the conclusion was that the BMA had refused even to consider the strengths of Mr. Chaudhary's complaints, that is to evaluate his case, and that they had closed their minds to the possibility of a race claim against the medical authorities. He submits that there was evidence before them entitling them to come to that conclusion.[131]The first and main proposition in support of Mr. Cavanagh's submission is that there was no evidence before the Tribunal, nor any finding, to the effect that the criteria relating to admission to the Specialist Registrar grade had been misapplied or extended in some improper way; and that, after discovering that Dr. Platt had formed his view on advice from Professor Mundy and after taking advice from Professor Temple, the BMA were entitled to take the view that, as a matter of fact, the North Manchester post was not recognised.[132]The main difficulty with this approach however is that, as the Tribunal found, the evidence before them did not indicate only one possible view of the facts or the "open and shut" case suggested by Mr. Cavanagh. It showed, rather, a lack of transparency and left a number of questions unanswered, in a way which they regarded as unsatisfactory. After a thorough review of the evidence in this Appeal Tribunal we consider that they were entitled not to view the failure to recognise Mr. Chaudhary's post as "a matter of straightforward fact" and that they were entitled to criticise the BMA for regarding it as such. Whilst we do not accept Mr. Hendy's submission that the evidence showing that the criteria were incorrectly applied in Mr. Chaudhary's case was overwhelming, we do consider that it raised legitimate cause for concern and required a thorough investigation and that, in the circumstances, the Tribunal were entitled to reach this view.[133]We repeat that the Tribunal did not hear from Professor Mundy, Dr. Platt, Mr. Bramble or Professor Temple. Mr. Quigley's evidence was that the matter was clear and the BMA were relying essentially on the documentary evidence. However the Tribunal did not regard that evidence as straightforward and we agree that it was unsatisfactory for the following reasons. None of the extensive documentation before the Tribunal suggested that there was in fact a system of two-tier recognition for registrar posts in operation and Mr. Cavanagh acknowledged this to be the case. The "Achieving a Balance" plan was implemented and indicated that there would be career registrars and visiting registrars and that the training for each of these was to be comparable. It became part of the established practice and the Tribunal had this well in mind. They considered that recognition by the Royal College could only be for higher specialist training and career and visiting registrars were by definition training posts. Subsequently the Orange Book referred only to Royal College approval (Faculty approval arising only where no Royal College in the specialty existed). It did not specify the need for educational approval by the SAC, although it did specify other roles for SACs (3/870).[134]The reference in the regulatory documentation to the fact that Royal College, and not SAC, approval was the criterion was supported by the wording used in the advertisement for Mr. Chaudhary's post. His post also appeared in the 1992 RCS listing, as approved by the Council of the RCS. Subsequently the ESMQO, paragraph 12(2)(c)(i) provided that the criterion to be applied for entry on to the Specialist Register was that which was current at the time he undertook the training and thus appeared to be Royal College, not SAC, approval.[135]At 2/639 to 642 was the document from Professor Mundy which Mr. Chaudhary drew to the BMA's attention. This appears not to have been prepared until March 1996, after the Orange Book and some months after Mr. Chaudhary had left the North Manchester post. Mr. Cavanagh rightly pointed out that it was prepared before Mr. Chaudhary applied for entry to Specialist Registrar grade. On our reading of it however it raised more questions than it answered, though we do not suggest that what follows is an exhaustive list. The first and obvious question was the extent to which everyone recognised that Professor Mundy was accurately and correctly describing the current position so far as the North Manchester post was concerned. Secondly whether, if so, the North Manchester post was one of those posts which would have received SAC approval if a visit had taken place i.e. whether this was a post which came within the definition of "other" posts referred to on page 640. Thirdly whether, if this was the rule, it had been applied consistently in both Mr. Chaudhary's case and other cases, that is were other registrars in "Royal College approved" posts being moved automatically to Specialist Registrar grade, even though there might not have been SAC approval. Fourthly, it seems that Professor Mundy himself acknowledged that the changes he was describing were "likely to have an adverse effect on overseas registrars" (641).[136]The letters from the consultants at North Manchester, Mr. Garland and Mr. Costello, referred to the post as having been recognised by the Royal College of surgeons as a training post in urology (2/564) and as having been "approved by the Royal College of Surgeons on all inspections" (2/647). Subsequently (2/651) Mr. Costello referred to the post as having never been recognised by the SAC in urology but did not refer to the Orange Book or to Achieving a Balance or explain the inconsistency. Neither of them gave evidence to this Tribunal. Professor Temple referred to the "confusing phraseology" but did not explain the inconsistency with the regulatory documentation and with the 1992 list.[137]As at the time of Mr. Chaudhary's application for transfer to Specialist Registrar grade there was therefore evidence before the Tribunal which could be read as indicating that he fulfilled the criteria for automatic entry and that the additional requirement for SAC approval was an unwarranted gloss on those criteria. Mr. Cavanagh sought to persuade us that another interpretation should be put upon the evidence, which pointed away from any breach of the rules. Even if this were right however, and we were not persuaded that it was, in our view it was open to this Tribunal to find the facts as they did and to regard what had happened to Mr. Chaudhary as being due to an incorrect application of the criteria, which had merited further investigation by the BMA legal department and which had not been satisfactorily resolved in the hearing before them.[138]It is against that background that the Tribunal's assessment of Mr. Chaudhary's complaint of race discrimination against the authorities must be considered. If there was, as the Tribunal found, a failure on the part of the BMA to investigate and to obtain the relevant information which would enable a proper evaluation of Mr. Chaudhary's case, it is not open to the BMA, in resisting the complaint subsequently brought against them for failure to investigate, to seek to undermine Mr. Chaudhary's original assertions of discrimination, to identify deficiencies in his case or to criticise him for failing to provide them with evidence which they had failed to identify or obtain on his behalf at the time when the issue was raised. In any event the Tribunal found that they chose to ignore or to denigrate the material he did provide for their consideration, for example, counsel's advice. Nor can it properly be suggested on the evidence in this case that Mr. Chaudhary's claim was so hopeless and doomed to fail that there could not in any event have been any evidence to be obtained. Certainly the Tribunal identified a number of matters in evidence which tended to show that the additional requirement of SAC approval in Mr. Chaudhary's case was racially discriminatory or had a racially discriminatory impact upon doctors who were members of ethnic minorities and in particular Asian doctors. The BMA called no evidence to contradict this. In these circumstances the Tribunal cannot legitimately be criticised for concluding that the additional criterion applied did have a disparate impact on ethnic minority doctors and that the BMA should have recognised that. The Tribunal refer in various places in their Reasons to the allegations Mr. Chaudhary was making: that, in refusing his application there had been a refusal to accept as valid training which had been accepted as valid in the past for white trainees (paragraph 38) or that other white doctors may have had their experience in a similar post recognised (paragraph 58) and to counsel's reference in his advice to evidence of discrimination (paragraph 55).[139]The Chairman's notes of Mr. Chaudhary's evidence show that he was complaining that only two people in Manchester had not progressed to the new grade and that both of them were Asian (1/280), that in urology none of the Asians got through the transitional provisions (281), that a British born Chinese doctor based in Manchester was treated differently from him (286), and that a doctor called Wedderburn who was less experienced than Mr. Chaudhary was granted an NTN (294). Mr. Cavanagh submitted that Mr. Chaudhary had not provided all this information to the BMA. But this ignores the fact that Mr. Chaudhary had had to try and obtain such information himself, not all of which was before him at the time he was seeking the BMA's help. Further, as the Tribunal found, he had offered to provide what information he had and to discuss the evidence with them at a meeting. The Tribunal found that the BMA had refused even to meet him because they considered that the matter was straightforward and that he clearly had no case.[140]Considering the evidence it is clear from a number of the documents to which we were referred (all of them in our bundle 2) that Mr. Chaudhary was asking whether he had been singled out for this treatment (that is, the SAC approval requirement): pages 666, 667 and 668; and that he considered that there had been indirect race discrimination in that the additional requirement for SAC approval was having an adverse impact on doctors like him, that is doctors of Asian origin: pages 669, 671. There seems to us to be little ambiguity in the documents he supplied to Dr. Armstrong at pages 702-703, in respect of which there was no response from the BMA.[141]The correspondence we considered at pages 702, 707, 711, 727 and 758, together with counsel's advice, in particular at page 738, support a claim of discriminatory impact. Similarly the correspondence between the CRE and the BMA at 720, 753, 761 and 763 raises legitimate questions on this issue. Further the Tribunal referred at paragraph 60 of their Reasons to statistics put before the Tribunal by Mr. Malkan. These statistics were not suggested to be flawed or in any way unreliable and Mr. Malkan was not challenged upon them. There was nothing therefore to contradict his evidence at paragraph 20 of his witness statement that the statistical information showed the existence of a racially discriminatory policy by the Royal College of Surgeons. The SAC in orthopaedics had compiled lists of registrars, which excluded virtually all ethnic minority doctors, and when senior registrar posts were advertised those not on the list were not offered an appointment. He stated that he had provided the BMA with a list of ethnic minority doctors who had been disadvantaged by that policy in approximately the middle of 1998. The specialties of orthopaedics and urology both fall under the RCS. It seems clear that Mr. Malkan was alleging that there was a list of registrars in orthopaedics, all members of ethnic minorities, who could not progress because they were all disadvantaged by the requirement for SAC approval.[142]These statistics are also referred to in counsel William Panton's advice. At paragraph 101 of their Reasons the Tribunal identified a significant disparity between those who had primary medical qualifications in the UK and those with primary qualifications in Pakistan, India and Bangladesh, in terms of rejection under the criteria. The Tribunal were well aware of the CRE concerns, to which they had already referred in their Decision. At paragraph 102 the Tribunal made findings that, with regard to the STA criteria, it was predominantly ethnic minority doctors who were penalised. Further, the screening group decided as a matter of policy not to challenge the criteria of SAC approval.[143]We recognise that this evidence, together with other documents to which we have not referred here, would not necessarily have been sufficient for the purposes of succeeding in a substantive complaint of discrimination against the authorities. In our judgment however it was material upon which this Tribunal could reasonably decide that the requirement for SAC approval, which had not been adequately explained to them, appeared to have a disproportionate impact on doctors of Mr. Chaudhary's ethnic origin and that, in this sense, Mr. Chaudhary had, a good case which merited serious consideration by the BMA. We do not consider that the Tribunal were deciding anything more than this, on a proper reading of their Decision.[144]We note finally, in relation to this issue, a document which was apparently not before this Tribunal but was disclosed in the Southampton Tribunal proceedings. It is a memo from Dr. Platt written at about the time of Mr. Chaudhary's "appeal" from his refusal to admit him to the SR grade. The Court of Appeal referred to it at paragraph 26 of their judgment, stating that Dr. Platt "… maintained that, if the Royal College of Surgeons was not careful in this case 'it could be viewed as racially discriminatory to impose the need for [Specialist Registrars] to come from posts with SAC approval, as this would exclude all Visiting Registrar posts and therefore all non-EEA doctors' …" Mr. Chaudhary had also referred to this document at 2/552, which was before the Tribunal. This, in our view, lends legitimacy to our conclusions that the Tribunal were entitled to conclude on the evidence before them that the criterion of SAC approval had an adverse disproportionate impact on doctors from ethnic minorities and in particular Asian doctors.[145]Mr. Cavanagh next submitted that it was not open to the Employment Tribunal to reject the BMA's explanations for their failure to support Mr. Chaudhary; and that no reasonable Tribunal could have done other than conclude that the BMA legal department tried repeatedly to identify the basis of his claim but that neither Mr. Chaudhary nor his advisers ever adequately spelt it out and therefore the BMA could not understand it. This he submits is what was demonstrated by the primary facts found and by the undisputed documentary evidence before the Tribunal.[146]We therefore spent much time in this hearing examining the extensive correspondence and documentation passing between Mr. Chaudhary or his advisers and the BMA legal department or leadership between 1996 and 1999 and we have considered them carefully. In our judgment they cannot be interpreted as capable of bearing only the meaning which Mr. Cavanagh sought to place upon them and as incapable of supporting the Tribunal's conclusions. It seems to us that they can reasonably be said to show, amongst other things, the following:(a) That from as early as April 1996 Mr. Chaudhary was raising his case with the BMA and that in the early stages the IROs and the JDC were alerted to the fact that some other criterion, not in the Orange Book, was being applied to him;(b) That the initial response from Angela Anstey from the legal department, after a lengthy delay, concluded that the job advertisement must have been written in error and that there was little which could be done;(c) That Mr. Chaudhary complained of his treatment as compared with others and sought information to which he received no response;(d) That by March 1997 the legal department were aware of his complaint in general terms and of the fact that he was suggesting racial discrimination, yet failed to assist him and to investigate his complaints;(e) Nor do they appear to have considered or advised him or the lay official Tony Coley as to the three month time-limit for lodging an application to the Employment Tribunal, although one of the factors taken into account by the Southampton Tribunal in dismissing Mr. Chaudhary's complaints for want of jurisdiction on time-limits was the fact that at the relevant time he was being advised by the BMA;(f) That Mr. Chaudhary and Tony Coley were trying to meet someone in the legal department to discuss what both Ms. Anstey and Dr. Armstrong had recognised to be a complex matter but they refused to meet him; nor did Dr. Armstrong or Mr. Deval consider that the legal department were wrong. Both repeat that there is nothing the BMA can do;(g) That Mr. Chaudhary set his case out clearly and Tony Coley understood the claim yet received only a brief response, of which he was very critical;(h) That the CRE understood Mr. Chaudhary's case and raised issues concerning it which were not satisfactorily answered save by further requests for information from Mr. Quigley;(i) That counsel advising Mr. Chaudhary understood what his case was and set it out in his opinion yet Mr. Quigley regarded it as taking the matter no further and chose to raise questions concerning counsel and the chambers he was in and that Mr. Coley was very critical of this response;(j) That the new IRO, Peter Forster, responded to Mr. Chaudhary's requests for help to be admitted to the Specialist Register and understood the complaint Mr. Chaudhary was making;(k) That experienced employment solicitors wrote to the BMA on behalf of Mr. Chaudhary asking them to support him in relation to his admission to the Register and in regard to his recent Tribunal proceedings;(l) That Mr. Quigley's response was to endeavour to ensure that he and Peter Forster were not making any fresh decision not to support Mr. Chaudhary;(m) Mr. Quigley continued to press Mr. Chaudhary for information and to delay in responding to Mr. Chaudhary's letters, despite having received a copy of his originating application; the matter went to the screening group without any decision from the BMA having been reached and conveyed to Mr. Chaudhary;(n) Dr. Hawker inaccurately described the basis of Mr. Chaudhary's complaint in referring to the NCCG posts; the screening group took the view that the criteria applied in Mr. Chaudhary's case was not a matter for them and would not be the subject of challenge.[147]We consider that the documents, taken together with the Tribunal's findings on the oral evidence and their conclusions as to the reliability of the witnesses called before them was such as to permit the Tribunal reasonably to conclude that Mr. Chaudhary was not alone in his view that he had been the victim of racial discrimination and that he had adequately spelled out to the BMA what his case was; and to permit them reasonably to reject the BMA's claim that they could not understand his case.[148]The remaining issues, numbered 4 to 6 under this ground of appeal, raise the questions whether the Tribunal's primary findings of fact could support the inference, whether adequate reasons for drawing the inference were given and whether the Tribunal sufficiently examined, differentiated between and provided adequate reasons for the inferences it made in respect of the "separate refusals" of support.[149]Mr. Cavanagh submits, in relation to the first two issues, that the findings of primary fact are irreconcilable with the Tribunal's inference that the BMA had a closed mind to the possibility of racial discrimination by the medical authorities; alternatively, that they gave inadequate reasons for drawing the inference.[150]He relies in particular on the following findings: Mr. Quigley writing to the CRE in May 1998 and again in November of that year saying that he did not understand the race discrimination allegation and asking for further information (paragraphs 52 and 74); his request for an explanation of the race discrimination case to Mr. Chaudhary's then solicitors, Russell, Jones and Walker, in February 1999 (paragraph 83) and his follow up attempt to obtain more information in May 1999 (paragraph 89); and his request to Mr. Chaudhary in August 1999 for a summary of the issues and his report to a colleague that Mr. Chaudhary would not tell him what he wanted (paragraph 94).[151]The inference was drawn however from all the primary facts found by the Tribunal on the evidence before them, of which the above form only a part. These included, from paragraphs 28 onwards, the following: The CRE investigations and the recommendation to the BMA to support members who are concerned about race discrimination; The lack of clarity as to the additional requirement for SAC approval applied to Mr. Chaudhary, which merited investigation as Tony Coley recognised; The initial legal department response by Ms. Anstey in December 1996 that there was nothing Mr. Chaudhary could do and subsequently that she could see no evidence of discrimination; The JDC and legal department accepting as incontrovertible Professor Temple's assertion once they knew of it; The delays by the legal department in responding to Mr. Chaudhary's requests and complaints; The legal department's refusal even to meet Mr. Chaudhary to discuss his concerns; Mr. Quigley's unquestioning acceptance, from the time of his initial involvement in the case, that Mr. Chaudhary's post was not recognised, his failure to consider or identify any discrimination issue and his statement that there was no point in seeing Mr. Chaudhary because there was no identified cause of action; The fact that although Mr. Quigley himself did not have any experience of employment law others in the department did and the solicitors discussed cases amongst themselves; The fact that no-one challenged Professor Temple's assertion about Mr. Chaudhary's post despite the "confusing phraseology" he had referred to; nor did they raise with him the question of concern about racial discrimination in the failure to recognise Mr. Chaudhary's training; Mr. Hughes's failure to follow up and investigate Mr. Chaudhary's references to having received supportive advice from independent legal advisers; Mr. Deval's refusal to reconsider his view that Mr. Chaudhary had no cause of action, despite Tony Coley telling him that he thought Mr. Chaudhary might have a good case; Mr. Quigley's failure to answer the questions asked by the CRE as to the BMA's withdrawal of support from Mr. Chaudhary and his suggestion that Mr. Chaudhary himself could supply the information; Mr. Quigley's subsequent response to further CRE enquiries that Mr. Chaudhary's post was not recognised as a matter of fact and that he did not understand what the allegation of race discrimination was; Mr. Quigley's instruction to Tony Coley to ensure that "all of us here are taking the same line with both the CRE and Mr. Chaudhary"; Mr. Quigley's agreement in oral evidence that counsel's opinion was clearly that Mr. Chaudhary has a good case for establishing race discrimination, that he had traced counsel and checked which chambers he was in and that he had been told counsel had previously worked in the legal department of the CRE; Mr. Quigley's continued assertion in oral evidence that the post had not been recognised, that there could therefore be no claim for race discrimination and that there was no evidence of discrimination; The fact that Mr. Quigley's evidence to the Tribunal had been equivocal; when he was questioned in detail he sometimes suggested that the evidence was weak, sometimes that it had not been produced to the legal department and sometimes that he did not see that the facts alleged could indicate race discrimination; Mr. Quigley agreed that he had not apparently pursued the question of what the Royal College recognised the post for, if it was not for higher specialist training; he suggested he must have had it explained to him at the time but the Tribunal rejected this; The fact that Mr. Quigley never explained in detail to Mr. Chaudhary or Tony Coley why he thought that the case being put forward was wrong or weak; Mr. Quigley's unquestioning acceptance of the assertion of Professor Mundy and Professor Temple that the post was not recognised and his failure to consider thereafter the concern that the post had been recognised for the purposes of training urologists who were white; The legal department's failure to take seriously Mr. Malkan's statistics about access to SAC approved posts after 1989 and their failure to enquire further into them at the time (August 1998); The fact that by September 1998 it was already apparent from the applications received from members for assistance in appeals against the STA decisions that a number of them were complaining of race discrimination; Mr. Hughes's advice to the screening group in November 1998 that members who wished to bring a complaint of race discrimination should be advised to produce actual evidence and yet his failure to make any arrangements to give members any guidance as to what sort of evidence would be appropriate; The screening group's failure thereafter to do anything which could be seen as consistent with a policy of attempting to identify whether there was any evidence of race discrimination, in particular the lack of any assistance to IROs in identifying what evidence would be needed; The finding that the screening group decided that the criteria themselves could not be challenged by the BMA assisting a member and that they decided as a matter of policy not to support a challenge to the assessment of a doctor's qualifications or training despite the fact that allegations of race discrimination in the way that the STA operated their criteria would inevitably involve a challenge to the assessment of the quality of the training; The screening group decision not to consider any allegations of race discrimination but to leave these to the IROs to handle with direct advice from the legal department, in circumstances where no advice or guidance was in fact provided; The failure by the BMA to involve their race equality working party in any of the relevant decisions and Dr. Hawker's inability to tell the Tribunal what the working party's terms of reference were; Mr. Forster's failure to investigate the strength of Mr. Chaudhary's allegation of discrimination in order to represent him at the STA appeal, as would have been expected if advice and guidance from the legal department as to the obtaining of evidence of discrimination had been forthcoming; The failure of the screening group in Mr. Malkan's case, as in Mr. Chaudhary's case, to refer his complaints of race discrimination to his IRO for assistance; Mr. Quigley's request to Russell, Jones and Walker in February 1999 for their views on the merits of Mr. Chaudhary's first claim, which the Tribunal found was a deliberate attempt to bolster the impression that the legal department were rejecting assistance on the grounds that they did not assess the claim as likely to succeed and holding them out as reasonably reconsidering the position when that was not the case; Mr. Quigley's attempt to persuade Tony Coley to say the same as the legal department in responding to Russell, Jones and Walker by saying that "the clear position we are taking with Chaudhary and his lawyers is that we made decisions in his various applications for assistance in the past and we are not prepared to reopen those decisions now" when that is actually not what he told Mr. Chaudhary's solicitors; The failure at any stage to consider Mr. Chaudhary's allegation of race discrimination in his appeal to the STA panel; The fact that by December 1999 and the meeting between the CRE and the BMA, despite Dr. Hawker's evidence that the BMA were still looking at the question of discrimination, there was no evidence that the BMA had in fact done anything to consider that position; The fact that in both Mr. Malkan's case and Mr. Chaudhary's, the rejection of assistance by the BMA, both by the steering group and later by Mr. Pilkington's letter showed a failure to recognise facts put forward by their member which could amount to a case of race discrimination and an unquestioning acceptance that the Royal Colleges assessment of the doctor's training was sacrosanct.[152]Further, from paragraphs 123 onwards the Tribunal, whilst making allowance for Mr. Quigley's difficulty in being asked to recall events which occurred some considerable time ago, set out why they found him to be an unsatisfactory witness, describing his oral evidence about the conclusions he came to as "contradictory in some respects and incredible in other respects". From March 1997, when Mr. Chaudhary first raised the possibility of race discrimination, the Tribunal found that there was no real consideration of that issue by the legal department or by Mr. Quigley, when he took over the file in September of that year. They found that he had "brushed it aside". Thereafter there was throughout a refusal by the legal department to consider the strengths of Mr. Chaudhary's case and no analysis of it. There was a refusal to acknowledge that there could be a claim of any sort despite a number of opportunities they had to reconsider the position, which the Tribunal considered they ought to have taken, one of which was legal advice to the contrary from other sources. There should also have been some consideration of whether Mr. Chaudhary's concerns as to racial discrimination, in the application of the criteria in his individual case, could in fact be a point of principle so as to come within the BMA's criteria for support in an individual member's case.[153]We find that it is clear from their Reasons that the Tribunal did consider, but rejected, the alternative explanations put forward by the BMA for failing to support Mr. Chaudhary. On the basis of their findings of fact they rejected the contention that the BMA reasonably believed that there was no race discrimination claim there to be brought, given that they found there to have been no investigation into or evaluation of Mr. Chaudhary's legitimate concerns as to unexplained irregularities in the criteria applied to him and the possibility of racial discrimination.[154]They also considered but rejected the contention that the BMA did not understand what the discrimination case was or what evidence of discrimination was being put before them. They found Mr. Quigley's evidence to be unreliable and found that he had said contradictory things, sometimes asserting that Mr. Chaudhary's case was weak or that he had no case and sometimes asserting that he could not understand the complaint being made (paragraph 55). They rejected the notion that the whole legal department could not have understood the case given that all the solicitors, including those with expertise in employment and discrimination law, would discuss their cases (paragraph 56). In this context and given the opportunities to discuss the case the Tribunal found Mr. Quigley's assertion that he did not understand the potential race discrimination claim referred to by the CRE in their letter of 10 September 1998 surprising and not what one would expect if the matter was being approached "with an open mind" (paragraph 74). Further, when Mr. Quigley was faced with counsel's opinion, which provided an explanation and evaluation of a case of race discrimination against the authorities, he sought, by checking counsel's status and chambers address, to discredit the giver of the opinion rather than to research the evidence or evaluate the strength of the case for himself. The Tribunal regarded this as "a most significant and striking fact". Despite the CRE advice to members of the screening group, including Mr. Hughes, to look at the way the Royal Colleges applied their criteria, the group decided they would not challenge the assessment by the Royal College of the training which had been undertaken. It seems that Dr. Hawker had admitted during cross-examination that this policy would have a massively disproportionate impact on ethnic minority members (see paragraph 183 of the closing submissions for Mr. Chaudhary and the statement of Mr. Mohib Khan paragraph 6). Further, no steps were taken to assist members in presenting a claim of race discrimination in their STA appeal. The Tribunal found the explanation that the BMA did not understand Mr. Chaudhary's claim to be one which was not supported by the evidence (paragraph 130).[155]The Tribunal also considered but rejected the possibility that the BMA genuinely but incompetently considered Mr. Chaudhary to have no case. On the basis of all the facts found and referred to above the Tribunal found expressly that the facts suggested something more than incompetence; and that the refusal to consider the merits of the claim, on the evidence, pointed away from individual incompetence (paragraph 126).[156]Having rejected these alternative explanations, which it was open to them to do, the Tribunal in our judgment were entitled then to proceed to draw the inference they did on the facts found. They drew a clear distinction between BMA recognition and support for allegations of race discrimination against an NHS Trust or Health Authority, which was forthcoming, and allegations of race discrimination against the academic authorities, where it was not. On the facts found the Tribunal inferred that this was because the decision-makers in the BMA were not prepared to consider, or assist in, cases where a member was alleging race discrimination against the authorities in applying their criteria and making decisions concerning the recognition of doctors' training (paragraphs 128 and 131). This they considered may well not be deliberate BMA policy but was the result of the attitude of mind of those in the legal department, whose task it was to make decisions on behalf of the BMA, decisions in which the BMA Secretary acquiesced; and this attitude persisted despite indications to them by others that race discrimination could have occurred in these circumstances. They refused to recognise even the possibility that the authorities might discriminate on racial grounds, so that anyone raising such a claim would not have it considered or evaluated.[157]In our judgment therefore the Tribunal were entitled to draw this inference and we consider that they adequately explained their reasons for so doing. It is thus unnecessary for us to consider the arguments addressed to us on the preliminary issue as to whether, if we considered amplification of the reasoning to be necessary, this Appeal Tribunal could or should invite the Tribunal to provide such amplification.[158]In relation to the sixth issue Mr. Cavanagh submits that the Tribunal erred in failing to consider separately each of the four refusals to provide support and to determine, in relation to each one, whether it was appropriate to draw the inference they did. These are identified at paragraph 129 as the original refusal to support Mr. Chaudhary's claims in December 1997, the further refusal when they considered the matter in the light of counsel's opinion in June 1998, the refusal to support either of his cases in February 1999 and finally their decision on 2 December 1999 not to support his appeal to the STA appeal panel. Mr. Cavanagh relies for this submission on the different states of knowledge of the BMA legal department on each of these occasions and on the fact that members of the STA screening group were different from the members of the BMA legal department who were responsible for the earlier acts complained of. He contends that the Tribunal has inadequately explained their reasons for the finding of a closed mind against these different individuals on the separate occasions referred to.[159]We do not accept this submission. It seems to us that the Tribunal in paragraph 129 are identifying four discrete occasions on which there were refusals to support him, and thus to provide him with access to facilities or services, in order to identify specific acts of less favourable treatment, that is, the first limb of the statutory test for direct discrimination. They decided that on each of these occasions Mr. Chaudhary was treated less favourably than someone who was or would have been provided with access to these services. In paragraph 130 they explain why they are not prepared to draw the inference that the less favourable treatment, on each of these occasions, was afforded on racial grounds.[160]In paragraph 131 however they are considering something different, namely whether, given their primary findings of fact and the inference they have drawn in paragraph 128, they can find that the BMA had unlawfully indirectly discriminated against Mr. Chaudhary pursuant to the provisions of section 1(1)(b) of the Act. The inference drawn here, which led them to find that there had been indirect discrimination, was based on their determination that, from the time when Mr. Chaudhary's first concerns were raised with the legal department in 1996, no-one had adequately addressed the failure to recognise his training; and that from March 1997 when he had first raised the possibility of race discrimination, and thereafter up to and including the failure of the screening group, of which Mr. Hughes of the legal department was a member, to support his STA appeal, there was a refusal to analyse and evaluate Mr. Chaudhary's complaints of discrimination and a refusal to acknowledge that he could have any valid complaints. The Tribunal regarded this as due to an ongoing course of conduct, arising from the closed mind which existed on the part of those in the BMA's legal department, in which the BMA Secretary acquiesced.[161]We consider that the Tribunal made sufficient findings of fact in relation to each occasion over the years 1996 to 1999 when the BMA failed or refused to provide Mr. Chaudhary with the assistance and support he requested; and that for the reasons we have already given, they were entitled both on the evidence and on their primary findings of fact to draw the inference they did.[162]In conclusion, on this ground of appeal, we find that the inference drawn was adequately explained and, further, was one which was open to them on their findings of fact and supported by the evidence.[163]We wish, finally, to add the following observations. The BMA's defence to this complaint could not have been assisted by the number of alternative explanations for their conduct being advanced and, in particular, their move from the pleaded defence that they had carefully considered and investigated Mr. Chaudhary's case over a long period of time and were justified in refusing to support him, to the suggestion, in closing submissions, that his claim was obviously so hopeless that there was no need even to investigate it. The Tribunal would no doubt have had this in mind. Further, we note that the BMA adduced no evidence before the Tribunal to show that they had in fact supported any doctors in claims based on allegations of race discrimination against the medical authorities, either in relation to the application of their criteria and recognition of training or indeed in relation to any other issue. Their response to question 9 (d) of Mr. Chaudhary's Questionnaire, namely whether they had ever provided such support, was expressed as "not known" (1/327) and no evidence was called at the hearing to show that they had. Finally, the Tribunal referred expressly, at paragraph 109 of their Reasons, to a different Tribunal's findings in the complaint brought against the BMA by one of Mr. Chaudhary's witnesses, Dr. Ilangaratne. Whilst the Tribunal decision, promulgated in October 1998, was that Dr. Ilangaratne had not been directly discriminated against by the BMA on racial grounds or as a disabled person, they had recorded that the BMA did not present themselves as an organisation which was sensitive to the requirements of the Race Relations Act 1976 or to the CRE's Code of Practice, that they carried out no ethnic monitoring and that they were not geared up to present statistics. The Tribunal in Mr. Chaudhary's case found that there was no evidence of any particular actions taken by the BMA, subsequent to that decision, to address the criticisms which the Tribunal had made. This Tribunal would no doubt have had in mind all these factors in deciding whether it was appropriate to draw the inference they did in this case. In our judgment their decision cannot be categorised as perverse. (2) INDIRECT DISCRIMINATION[164]Mr. Cavanagh submits that, even if he fails on the first ground, nevertheless the finding of indirect discrimination in this case was based on a misunderstanding and/or misapplication of the law because the Tribunal failed properly to apply the provisions of section 1 (1) (b) of the Act to the facts found and the inference drawn. In this case we should point out that we are concerned with the Race Relations Act 1976 as it was, before the amendments made in July 2003 as a result of the EC Race Directive 2000/43/EC introducing, amongst other things, a new definition of indirect discrimination and changes to the burden of proof. The issues under this ground of appeal are numbered 8 to 13 in the list and are therefore as follows:
"8. Whether the requirement or condition found is a condition or requirement under S1(1)(b) at all. 9. Whether the correct approach to establish discrimination under S1(1)(b) is that of Jones v Chief Adjudication Officer 1990 IRLR 533 ( and whether a failure to strictly follow that approach necessarily invalidates any decision ). 10. Whether alternatively the proper approach is to look for differential impact and the application of common knowledge (Re-Amended Respondent's Answer). 11. Whether the Tribunal applied the proper approach/analysis or misled itself as to the meaning of S1(1)(b). 12. Whether the Tribunal provided adequate reasons for its findings in this regard. (We shall deal with this issue even though it is unclear whether it appears as a ground of appeal) 13. Whether it was permissible on the evidence and the Tribunal's primary findings of fact to find that the requirement or condition was indirectly discriminatory upon a proper consideration of the law."
[165]After determining that the BMA had not directly discriminated against Mr. Chaudhary in this case the Tribunal set out their conclusions on indirect discrimination in paragraph 131. They expressed it in this way:
"We have concluded that the respondents refused to recognise the possibility that the Royal Colleges, the STA, Postgraduate Dean or the SACs might discriminate on racial grounds. We do find that that attitude meant that anyone producing that sort of claim did not have it evaluated or considered in reality. We come to the conclusion that the respondents have therefore imposed a requirement or condition on claims from members that in order to be considered they should not include a claim that the Royal Colleges, Postgraduate Dean or the STA have discriminated on racial grounds in applying their criteria and making their decisions."
[166]They also found at paragraph 133 that a considerably smaller percentage of Asian members of the BMA could comply with that requirement or condition than other members because it was largely the members from the Indian subcontinent who had their applications rejected by the STA and also largely those members who alleged race discrimination by the Royal College in the STA exercise. There was no suggestion that Mr. Chaudhary could comply with this condition. He clearly could not. Further the BMA did not contend that, if such a requirement or condition was applied, it was justifiable, and the Tribunal found that they were satisfied in all the circumstances that it was a condition which could not be justified. They summarised their finding on indirect discrimination at paragraph 3 of the opening paragraphs of the Decision. They also explained generally at paragraph 135 that, in arriving at their conclusions on indirect discrimination, victimisation and time-limits, they had had regard to all the submissions from counsel and had read and considered the cases to which they were referred.[167]It is important to note paragraph 135 because of the criticism Mr. Cavanagh makes of the Tribunal's failure to set out the relevant statutory provisions in their Reasons. He submits that this failure contributed to the errors of law which he suggests occurred in their approach to indirect discrimination. We agree that it is usually advisable and preferable to include a reference to the relevant statutory provisions and, where appropriate, the relevant cases considered in a Tribunal's Reasons. However, their omission is not, and is not suggested to be, by itself an error of law, especially where they have had the provisions, the case law and submissions upon them set out in detailed written submissions provided by both counsel. There was no dispute between the parties below as to the legal principles which applied here. The crucial question is whether the Tribunal applied those principles correctly.[168]Section 1 (1) (b) of the 1976 Act provides as follows:
"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a) … (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but – (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it."
The relevant circumstances, in the present case, for a consideration of these provisions are contained in section 11(3)(a) which provides:
"(3) It is unlawful for an organisation to which this section applies, in the case of a person who is a member of the organisation, to discriminate against him- (a) in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them;"
It is accepted that members' requests to the BMA for advice and assistance and for support in Tribunal claims fall within these provisions.[169]It is common ground that the provisions in both the Race Relations Act 1976 and the Sex Discrimination Act 1975 are to be given a broad and purposive construction, having regard to the evils of race and sex discrimination which they seek to eradicate ( Jones v Tower Boot [1997] ICR 254 at 262). It is also recognised that the indirect discrimination provisions, which take the same form in both Acts, have been the subject of considerable judicial scrutiny and interpretation over the years. Mr. Cavanagh's first challenge to the finding of indirect discrimination was that the Tribunal failed to itemise and address all the relevant matters set out in the case of Jones v Chief Adjudication Officer [1990] ICR 124; and that inadequate reasons were therefore given for the decision.[170]The Jones case concerned Social Security benefits in the form of the refusal of a claim for invalid care allowance and the question whether relevant Social Security regulations indirectly discriminated against women having regard to Directive 79/7/EEC. The Court of Appeal, adopting the agreed approach of the parties, considered that one way in which indirect discrimination could be established was using what was called the "demographic" argument. Mustill LJ then set out a seven stage process for establishing discrimination on that basis, as follows:
"1. Identify the criterion for selection; 2. Identify the relevant population, comprising all those who satisfy all the other criteria for selection. (I do not know to what extent this step in the process is articulated in the cases. To my mind it is vital to the intellectual soundness of the demographic argument); 3. Divide the relevant population into groups representing those who satisfy the criterion and those who do not; 4. Predict statistically what proportion of each group should consist of women; 5. Ascertain what are the actual male/female balances in the two groups; 6. Compare the actual with the predicted balances; 7. If women are found to be under-represented in the first group and over-represented in the second, it is proved that the criterion is discriminatory."
[171]The decision thus provides a good example of how a case of indirect discrimination may be established where the demographic argument is being relied upon. However the Court of Appeal were not deciding that these are mandatory criteria, to be applied in every case of indirect discrimination, or that a Tribunal which fails to adhere rigidly to this process, with an analysis stage by stage of the various factual findings will have erred in law. In any event the Tribunal in the present case were not required to consider or apply the demographic argument. The questions for us are whether they were correct to find that section 1(1)(b) applied at all, whether they correctly applied the statutory provisions to the facts they found and whether they adequately explained their reasons for doing so.[172]What has usually been contemplated in the indirect form of discrimination in both Acts has been the application of a requirement or condition which, on the face of it, appears to be either gender neutral or race neutral but which can be shown disproportionately to disadvantage women or members of a particular minority ethnic group. For example, in the sex discrimination context, an employer's requirement that a particular job in the organisation should be done by someone working full-time hours was seen to be sex neutral in its terms but was also seen disproportionately to disadvantage women, many of whom were able only to work part-time hours because of traditional family responsibilities. The employer who applied such a requirement was then obliged to show that it was objectively justifiable.[173]Some requirements are more neutral than others, however. To take a far-fetched example in the race context, but to make the point, an employer's requirement that, to be considered for employment, an applicant must be white-skinned, is a requirement which disadvantages all persons of a different skin colour and is discriminatory in its terms. A black job applicant to whom this requirement was applied could legitimately complain of direct, rather than indirect discrimination.[174]Whether discriminatory treatment of an applicant is directly or indirectly discriminatory will always be for the Tribunal to determine on the particular facts before them. Thus in the case of James v Eastleigh Borough Council [1990] 2AC 751 the Council's practice of providing free access to a swimming pool to those of state pensionable age (60 for women, 65 for men) was held to be sex-based and to discriminate directly against men. In the case of Mandla v Dowell Lee [1983] ICR 385 , however, a school's refusal to admit a Sikh boy unless he cut his hair and remove his turban was held, at first instance, not to amount to direct discrimination. The Claimant succeeded in the House of Lords on indirect discrimination however, where it was held that Sikhs were a racial group for the purposes of the 1976 Act and that there had been unlawful indirect discrimination against the boy by the school contrary to section 1 (1) (b).[175]In the present case, whilst the BMA's refusals to assist and to support Mr. Chaudhary were held to amount to less favourable treatment of him the Tribunal, on the evidence they had heard and the facts they had found, did not consider that the BMA had so treated Mr. Chaudhary "on racial grounds" so as to lead to a finding of direct discrimination under section 1 (1) (a). This was because they regarded the BMA's recognition of and support for complaints of race discrimination in appointment and promotion cases for all members, including Asian members, to be a powerful argument against such an inference. They did however identify a requirement or condition, which had been applied to Mr. Chaudhary, on the basis of their factual conclusions and the inference drawn. We regard this as a permissible approach. A condition that, in order to receive BMA assistance and support, a member must not complain of race discrimination against the regulatory authorities in their application of medical training criteria may be less "race neutral" than other conditions, but the Tribunal were in our judgment entitled to regard the BMA's treatment of Mr. Chaudhary as falling, more appropriately, within the indirectly discriminatory bracket so that section 1(1)(b) was engaged. Whether it amounted to unlawful indirect race discrimination contrary to that sub-section then depended, in this case, on their findings as to the requirement or condition imposed and as to disproportionate impact. On these issues Mr. Cavanagh makes essentially three submissions.[176]He submits first that you do not even reach disproportionate impact in this case because the Tribunal erred in finding that there was a requirement or condition imposed upon a person within the meaning of section 1(1)(b). He submits that the requirement or condition identified by this Tribunal depends not upon the characteristics of the individuals concerned but upon the nature of the complaint they are making. The reported cases on indirect discrimination, within both the race and sex contexts, have all concerned the imposition of a requirement or condition which concerns the personal characteristics of the applicant; for example a requirement that the applicant does not wear a turban (the Mandla case above), or a requirement that the Applicant has certain academic qualifications ( Raval v DHSS [1985] ICR 685). Here he submits there was no requirement or condition, which related to the experience, abilities or other characteristics of BMA members. Rather, the Tribunal's finding amounted to a finding that the BMA were not providing a particular benefit, of which a higher proportion of one group of members than another might have wanted to avail itself. Such non-provision of a benefit to all members he submits does not amount to the application of a requirement or condition within the meaning of section 1 (1) (b).[177]We do not agree. Firstly, whilst it may be right that in the reported cases, a requirement or condition has related to an applicant's personal characteristics or circumstances, the legislative provisions themselves contain no such restriction. For section 1 (1) (b) of the 1976 Act to apply an applicant needs to show only that there has been applied to him/her a requirement or condition, which has been applied or would be applied equally to persons not of the same racial group as the applicant. The existence of a requirement or condition is a matter for the Employment Tribunal to determine on the facts of each case.[178]Secondly, the requirement or condition need not be an express requirement but can, as in this case, be implied on the basis of the primary findings of fact and permissible inferences. It would not be possible, or sensible, to attempt to define the circumstances which might give rise to the existence of a requirement or condition applied to an applicant in such a case. They may not be readily apparent and may arise in an infinite variety of circumstances. This will always fall to be determined by the Tribunal on the particular facts of each case.[179]Thirdly, in the present case, the correct analysis is as follows. In relation to employment and discrimination issues the BMA provides its members, in return for their subscriptions, with advice and assistance and, if their conditions for support are met after a proper consideration and evaluation of the case, with representation in the Tribunal. The conditions applied for such representation were that there should be reasonable prospects of success or that the case should involve an issue of principle or of importance to members generally. However, on the facts of this case, the Tribunal found that the BMA imposed an additional condition on access to their services. The BMA were not prepared to "take on" the regulatory authorities and to allege or even consider and investigate complaints of race discrimination in the way that they regulated doctors' qualifications and access to training grades. Thus, in order to receive assistance and to have their case considered and evaluated for a decision as to support and representation, a member could not be complaining of race discrimination by the authorities in the way they applied the criteria and made decisions on training recognition.[180]That this was the requirement or condition implied here is clear from the Tribunal's decision. It was a requirement or condition which the BMA were found to have applied to Mr. Chaudhary, when he sought assistance from them, and which was applied or would be applied equally to others applying for such assistance. Mr. Chaudhary had to satisfy the condition in order to qualify for the membership benefit of advice and representation, including an evaluation of his case. As such we find that it was a requirement or condition which fell within section 1 (1) (b).[181]Before turning to disproportionate impact we should deal with one further submission made by Mr. Cavanagh in relation to the finding of a requirement or condition in this case. He relied in support of his submissions on an analogy, which he described as exact; namely, if a company provided company cars to its staff and, proportionately, more black employees than white employees availed themselves of the opportunity to have a company car, the withdrawal of the company car perk would not amount to racial discrimination, even though it would have a disproportionate effect on the black employees. This is because there is no requirement or condition that an employee has certain characteristics in order to qualify for a company car. However, caution is required when considering such "analogous" constructs, outwith the factual matrix of the particular case. Such an exercise can sometimes be misleading. We do not in any event consider this hypothetical situation to provide an exact analogy. The first sentence is correct, as far as it goes. However, if other evidence in the case showed that the withdrawal of the company car perk had been deliberately targeted at black employees, an entirely different and directly discriminatory picture emerges. Similarly, the potential for indirect racial discrimination would arise if, in order to limit access to a higher grade of car, the company had imposed a requirement or condition that members of staff should not be claiming entitlement to other company perks in addition; and that requirement was shown to have a disproportionate effect on black employees. The possibility of unlawful indirect discrimination would arise even though there was no requirement or condition that an employee has certain characteristics in order to qualify for the higher grade car. This exercise only serves to demonstrate the way in which slight factual variations can deliver very different outcomes and the risks involved in attempting to draw analogies in the fact-sensitive field of discrimination. In our view, it was not of assistance in considering the Tribunal's analysis and conclusions on the evidence and findings of fact in the present case.[182]As we have already stated no issue arose as to section 1 (1) (b) (iii). Clearly the requirement or condition was to Mr. Chaudhary's detriment, because he could not comply with it, and Mr. Cavanagh accepts that it was open to the Tribunal to find this. His other two submissions under this ground of appeal relate, rather, to section 1 (1) (b) (i) and the Tribunal's findings on disproportionate impact. He contends, firstly, that the requirement or condition identified is not disproportionately more difficult for Asian BMA members to comply with than BMA members of other racial groups who were in the same position. The Tribunal's finding was that there was a blanket bar on support for complaints involving allegations of race discrimination against the regulatory authorities in relation to the application of their criteria. This bar applied equally to white, West Indian, African or Asian doctors and the requirement or condition was equally impossible to comply with, whatever a person's race. A requirement or condition excluding almost the entire pool could not constitute indirect discrimination. He relies on the recent Court of Appeal decision in the case of Lord Chancellor and another v Coker and another [2002] ICR 321 . Giving the judgment of the Court the Master of the Rolls said at paragraph 38:
"The test of indirect discrimination focuses on the effect that the requirement objected to has on the pool of potential candidates. It can only have a discriminatory effect within the two statutes if a significant proportion of the pool are able to satisfy the requirement. Only in that situation will it be possible for the requirement to have a disproportionate effect on the men and the women, or the racial groups, which form the pool. Where the requirement excludes almost the entirety of the pool it cannot constitute indirect discrimination within the statutes."
He submits, secondly, that there was in any event no evidence before the Tribunal that this requirement or condition would have a disproportionate impact on BMA Asian members; and no evidence that, amongst those BMA members who wished to bring discrimination complaints, Asians were substantially more likely to want to bring complaints against the regulatory authorities than members of other racial groups.[183]In our judgment these submissions fail to recognise the evidence which was before this Tribunal, their findings upon it and the nature of disproportionate impact under the legislation. Section 1 (1) (b) (i) involves looking at the relative effect of a requirement or condition on different racial groups in order to ascertain whether it has a disproportionately adverse effect on one racial group. The "relevant circumstances" for the comparison of the impact of the requirement or condition must be the same or not materially different as between the comparators (section 3(4)). In the present case the relevant circumstances of the comparators and the disproportionate impact were relatively easy to identify on the evidence before them and caused the Tribunal little difficulty. As Mr. Cavanagh acknowledged in his submission, members of the BMA in the same relevant circumstances as Mr. Chaudhary, for the purposes of comparison, were those members who were complaining of race discrimination, for it is upon this group of persons that the requirement or condition impacts. In this group, absent the requirement or condition identified, members of all racial groups, including Asian members, could expect to have their complaints taken seriously, properly evaluated and supported if the BMA criteria for representation were met. The question then becomes whether, in practice, a significant proportion of that group were able to satisfy the requirement or condition imposed. If, in practice, the proportion of Asian members in this group who could satisfy the actual requirement or condition was "considerably smaller" than the proportion of members of other racial groups who could satisfy it, there will have been unlawful indirect discrimination unless the requirement or condition could be objectively justified. We must therefore remind ourselves of the evidence before the Tribunal.[184]In addition to Mr. Chaudhary the Tribunal heard evidence in this case from a number of other Asian doctors, who gave evidence about their complaints of discriminatory treatment by the regulatory authorities and/or requests for assistance from the BMA. Throughout the period when Mr. Chaudhary was seeking the BMA's help all the evidence before the Tribunal indicated that it was Asian members who were complaining of discriminatory treatment in terms of access to the specialist grade or register or in recognition of their training under the relevant provisions. This was the basis upon which counsel had advised Mr. Chaudhary. The evidence referred to by the Tribunal included the statistics supplied to the legal department by Mr. Malkan re unequal access to SAC approved posts for Asian members after 1989. The failure to recognise non-SAC approved posts was recognised to feed directly into rejection by the STA for entry to the Specialist Register. Statistics were sent to the BMA by the STA in January 1999 re the disparities between rejections of members with primary qualifications from the Indian subcontinent and rejections of those whose primary medical qualifications were obtained in the U.K. (The BMA had conceded in their Reply (see paragraph 40 above) that the proportion of members of Indian and other Asian racial origin who seek the assistance of the BMA in connection with appeals to the STA is larger than the proportion of such individuals in the membership of the BMA at large.) The CRE expressly raised concerns that doctors from the Indian subcontinent appeared to be at a disadvantage, when compared to others. Further, the limited statistics the Tribunal had about applications to the BMA for assistance in challenging the STA decisions showed that of the four cases where race discrimination was alleged, three were from doctors of Indian ethnic origin. The fact is that the evidence before this Tribunal showed that it was Asian BMA members, rather than members of other racial groups, who were being disadvantaged by the decisions of the regulatory authorities.[185]This led the Tribunal to find on the evidence that it was "largely the members from the Indian subcontinent who had their applications rejected by the STA and also largely those members who alleged race discrimination by the Royal College in the STA exercise"; and therefore that "…a considerably smaller percentage of Asian members….were able to comply with the requirement or condition actually imposed than other members". In our judgment they adequately explained their reasoning and were entitled both to come to this conclusion on the evidence and to find that there was disproportionate impact within the meaning of section 1 (1) (b) (i). In the circumstances of this case the proportion of Asian members who could comply with a condition of BMA assistance that they do not allege race discrimination in the decisions of the regulatory authorities was considerably smaller than the proportion of members from other racial groups who could comply with it, those other racial groups, on the evidence, not being disadvantaged by the regulatory decisions on access to training posts to the extent that the Asian members were. A significant proportion of members of the BMA alleging race discrimination could comply with the requirement or condition because, on the evidence and the Tribunal's findings, they were not seeking to challenge the authorities, as Asian members were. To submit, as Mr. Cavanagh does, that a white member in the same position as Mr. Chaudhary would be no better off in terms of his ability to satisfy the requirement or condition leaves out of the equation altogether the vital fact that there was no evidence before the Tribunal that any white member of the BMA had ever sought to allege race discrimination against the authorities in relation to their criteria and training recognition decisions. It is not therefore the case that the entire pool was, in fact, being excluded.[186]The Tribunal, in our judgment, properly understood and correctly applied the provisions of section 1 (1) (b) (i) and were entitled to conclude that the BMA had unlawfully indirectly discriminated against Mr. Chaudhary. Whilst it is correct that proof of disproportionate impact under these provisions has sometimes been established by detailed statistical evidence and mathematical calculations it has been accepted on a number of occasions that the use of statistics is not always necessary or may not even be appropriate, depending on the facts and the nature of the evidence before the Tribunal in any particular case. It was recognised as long ago as 1982 that it is most undesirable that, in all cases of alleged indirect discrimination, elaborate statistical evidence should be required before the case can be found proved ( Perera v Civil Service Commission [1982] IRLR 147 at page 151 paragraph 29, Browne Wilkinson J.). These sentiments were not affected by the subsequent decision on appeal and similar sentiments are to be found in a number of cases decided since then. The Tribunal were entitled to approach disproportionate impact in this case on the basis of the evidence they had heard and the conclusions they had reached upon it. We do not consider that they erred in law in finding in Mr. Chaudhary's favour on indirect discrimination. (3) VICTIMISATION[187]The issues arising under this ground of appeal are these :
"14. Whether the finding of the Tribunal that the failure to support the Southampton case after the Russell Jones & Walker letter of February 1999 amounted to victimisation was a misapplication of the law and/or was perverse. 15. Whether there was evidence of a new decision not to support after that letter was received. 16. Whether the Tribunal applied the test set out in Chief Constable of West Yorkshire Police v Khan (H of L) [2001] 1WLR 1947 at para.29. 17. Whether in the face of the finding at paragraph 132 of the Extended Reasons: 'After that letter any refusal to support was in our view by reason of the fact that the Applicant complained that they might be discriminating on racial grounds because the Respondent's Legal Department clearly decided that they should not make a new decision in order to avoid the time limit running anew.' it was permissible to find that the Respondent victimised the Applicant."
[188]Section 2 of the 1976 Act provides, so far as is relevant, as follows:
"(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has – (a) brought proceedings against the discriminator or any other person under this Act; or (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or (c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."
[189]Mr. Cavanagh submits first that the Tribunal's finding that Mr. Chaudhary was treated by the BMA less favourably than someone who had not suggested they might be unlawfully discriminating against him was perverse. He submits that the only finding open to them on the evidence was that the BMA were reasonably and legitimately seeking to protect themselves from the threat of litigation, as they tried to elicit further information in order to understand Mr. Chaudhary's case. He acknowledges that, in seeking to make good this submission, he relies to a considerable extent on the submissions advanced in support of the perversity challenge to the inference drawn, which resulted in the finding of indirect discrimination. Since we have rejected that challenge this creates a difficulty on his first submission. It is necessary nevertheless in considering the second submission, namely that the Tribunal erred in law in finding unlawful victimisation, to set out what their findings were and then to deal with the perversity challenge before considering the law.[190]At paragraph 129 the Tribunal found that on each of four occasions when the BMA refused to provide assistance to Mr. Chaudhary he received less favourable treatment. These were the original refusal to support his claims in 1997, the further refusal when they received counsel's opinion in 1998, their refusal in February 1999 to support either of his Tribunal cases and, lastly, their decision in December in 1999 not to support his appeal to the STA panel. They did not infer on the evidence they had heard that this less favourable treatment was on racial grounds. They did consider that indirect discrimination had occurred for the reasons they subsequently set out.[191]However, in relation to the refusal to assist and support Mr. Chaudhary in February 1999, the Tribunal found on the evidence that other factors were also operating. In addition to the refusal to consider and evaluate allegations of discrimination against the regulatory authorities, there was a further reason for the BMA's less favourable treatment on that occasion. This was the fact that Mr. Chaudhary had complained to the BMA that they might themselves be discriminating against him in refusing to provide assistance.[192]Their findings of fact relating to this were set out at paragraphs 82 to 90. The Tribunal had regard to these findings together with the findings which led them to reject Mr. Quigley's explanations for refusing to support Mr. Chaudhary and to draw the inference they did. In their letter to Doctor Armstrong dated 1 st February 1999 (2/783) Russell, Jones and Walker, experienced employment solicitors, enclosed counsel's advice on Mr. Chaudhary's first Tribunal claim and described the purpose of their letter as being, in part, to ask that the BMA reconsider their decision in relation to providing him with support. They addressed the BMA's criteria for support by referring to counsel's advice on the prospects of success and by referring to the importance generally to BMA members of the issues raised. They also raised the question of support for the STA Tribunal proceedings commenced in December 1998. The Tribunal set out in full the final substantive paragraph of their letter in paragraph 82, in which discrimination by the BMA themselves is canvassed.[193]Mr. Cavanagh describes this as an undisguised threat and generally as a letter before action to the BMA. We do not consider that either of these descriptions is accurate, although we accept that the phrasing used involved an allegation of discrimination by Mr. Chaudhary such as to engage the provisions of section 2 of the Act. An important point, as far as the Tribunal were concerned, was that the solicitors were genuinely asking the BMA to reconsider Mr. Chaudhary's application for support in relation to both his Tribunal claims.[194]The Tribunal found that Dr. Armstrong, to whom the letter was addressed, simply referred it to the legal department and later on approved Mr. Quigley's draft reply. They found that neither he nor anyone else investigated the possibility of discrimination by the BMA any further than that. Mr. Quigley's reply (2/789) was summarised by the Tribunal at paragraph 83. It included his statement that "the BMA give legal assistance in meritorious cases". The Tribunal considered that, whilst it might have been understandable if Mr. Quigley was acting genuinely and reasonably for him to ask the solicitors for their views on the merits of the STA proceedings, the fact that he was asking for their views on the chances of success on the 1997 claim was "a deliberate attempt to bolster the impression that the legal department were rejecting assistance on the grounds that they did not assess the claim as likely to succeed and holding them out as reasonably reconsidering the position when we find that was not true". Further, in his subsequent memorandum to Tony Coley (2/793) and later on to Peter Forster (2/800), they found that Mr. Quigley's aim, in the context of the possibility of an action by Mr. Chaudhary against the BMA, was to persuade Messrs. Coley and Forster to say the same as the legal department, that is for them all to take the same line. The Tribunal found, correctly, that this was not what he had told Russell, Jones and Walker. They regarded this as a position adopted by Mr. Quigley as a result of the possibility of an allegation of race discrimination against the BMA in order "to protect any time-limits" in their favour. They also rejected Mr. Quigley's explanation that he did not understand Mr. Chaudhary's case, regarding it as unsupported by the evidence. They also rejected as unreasonable his suggestion that he was genuinely seeking to elicit further information. In general they found his explanations to be inconsistent or contradictory and we would repeat here all the findings referred to above in relation to Mr. Quigley, in whose conduct Dr. Armstrong was found to have acquiesced.[195]Against this background the Tribunal held that the BMA, through Mr. Quigley,(a) refused to contemplate that they could be discriminating themselves;(b) did not take the opportunity to consider the position anew when Russell, Jones and Walker wrote to them, though they gave Mr. Chaudhary the false impression that they had or that they would be prepared to do so; and(c) decided that they should not make a fresh decision in relation to support for Mr. Chaudhary, in order to avoid a new time-limit starting to run, still contending that the claim was difficult to understand and suggesting to the solicitors that they should provide their views on the merits of the claim. The reason why Mr. Quigley acted as he did in these circumstances was a question of fact for the Tribunal to determine. Whether he was acting at this point genuinely and reasonably, legitimately seeking to elicit further information about a case he did not understand whilst simultaneously seeking to protect the BMA's position in relation to the threat of litigation or whether, alternatively, in addition to his general failure to consider and evaluate Mr. Chaudhary's complaints, he was acting by reason of the fact that Mr. Chaudhary had complained that the BMA may themselves be discriminating against him was for this Tribunal to decide on the basis of the evidence they heard. We do not consider, on the evidence before them in this case, that their finding can be said to be perverse.[196]Mr. Cavanagh further submitted however that, having regard to the decision of the House of Lords in the case of Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 , the Tribunal erred in law in concluding that there had been unlawful victimisation within the meaning of the 1976 Act. The Tribunal found that the refusal to support Mr. Chaudhary's complaints in February 1999 was by reason of the fact that he complained that they might be discriminating on racial grounds because the BMA's legal department clearly decided that they should not make a new decision, in order to avoid the time-limit running anew. This, he submits, amounts to a finding that a step taken by the BMA to address threatened litigation (that is, to avoid a new time-limit starting to run), amounted to victimisation. Such a finding cannot stand in light of the decision in Khan . The BMA's refusal to assist Mr. Chaudhary was not by reason of the fact that Mr. Chaudhary had threatened to bring discrimination proceedings but because of the BMA's need to preserve their position in relation to them.[197]In the Khan case a police officer who had presented to a Tribunal a race discrimination complaint against the Chief Constable asked for a reference to be provided by the Chief Constable whilst the proceedings were still pending. The Chief Constable, on legal advice, refused to provide the reference given that the race discrimination proceedings in the Tribunal had not been concluded. On these facts the House of Lords held that this was not unlawful victimisation, because the Chief Constable had declined to provide the reference not by reason that the police officer had brought proceedings against him but because of the existence of the proceedings and his need to preserve his position under them. Accordingly he had not discriminated against the officer by way of victimisation.[198]After stating that the reason why a person acted as he did is always a question of fact, Lord Nicholls said at paragraph 31:
"Employers, acting honestly and reasonably, ought to be able to take steps to preserve their position in pending discrimination proceedings without laying themselves open to a charge of victimisation. This accords with the spirit and purpose of the Act. Moreover, the statute accommodates this approach without any straining of language. An employer who conducts himself in this way is not doing so because of the fact that the complainant has brought discrimination proceedings. He is doing so because, currently and temporarily, he needs to take steps to preserve his position in the outstanding proceedings. Protected act (a) ("by reason that the person victimised has – (a) brought proceedings against the discriminator . . . under this Act") cannot have been intended to prejudice an employer's proper conduct of his defence, so long as he acts honestly and reasonably. Acting within this limit, he cannot be regarded as discriminating by way of victimisation against the employee who brought the proceedings."
Lord Mackay at paragraph 44 referred to the Chief Constable having acted in accordance with perfectly understandable advice from the solicitor. Lord Hoffman agreed with Lord Nicholls and said at paragraph 59:
"… once proceedings have been commenced, a new relationship is created between the parties. They are not only employer and employee but also adversaries in litigation. The existence of that adversarial relationship may reasonably cause the employer to behave in a way which treats the employee less favourably than someone who had not commenced such proceedings. But the treatment need not be, consciously or unconsciously, a response to the commencement of proceedings. It may simply be a reasonable response to the need to protect the employer's interests as a party to the litigation. It is true that an employee who had not commenced proceedings would not have been treated in the same way. Under section 1, one would have needed to go no further. Under section 2, however, the commencement of proceedings must be a reason for the treatment …"
Lord Scott said at paragraph 80:
"I would allow the appeal in the present case on the ground that Sergeant Khan has failed to show that the reason for the chief constable's refusal to comply with the Norfolk police force's request for a reference about him was that he had brought the race discrimination claim. The reason, on the evidence, was that the proceedings were pending. This conclusion, in my opinion, makes sense of the legislation and its purpose. It does not stand in the way of the success of a section 2(1) victimisation claim where, on the evidence, the conclusion is justified that the employer's reason for singling out the complainant for less favourable treatment is that the complainant has brought the proceedings. It does enable justice to be done to an employer who, as in the present case, would otherwise be placed by the pendency of the proceedings in an unacceptable Morton's fork, forced to choose between conduct which risked a section 2(1) complaint and conduct which risked an aggravated damages award if the race discrimination claim should succeed."
[199]Mr. Cavanagh submits that the letter from Russell, Jones and Walker created an adversarial relationship between the parties and that the BMA were effectively caught in the Morton's fork referred to by Lord Scott. They were faced either with deciding the matter afresh and providing Mr. Chaudhary with a fresh time-limit or not reconsidering the matter and facing a victimisation complaint. He submits further that, if the Tribunal were right, the potential applicant in a discrimination case, whose claim was prima facie out of time, could arrange for his claim to be in time by asking his or her employer to take the decision complained of anew purely in order to start time running again. To decline to do so would inevitably be an act of victimisation by the employer.[200]We do not accept, however, that an employer or other respondent will inevitably be faced with that stark choice or that that is the inevitable consequence, if he or she is acting throughout genuinely and reasonably. And it is, in our judgment, that element of honesty and reasonableness, which the House of Lords regarded as important and as present on the facts in Khan , which principally distinguishes that case from the present. Put simply, and for the reasons we have already set out fully above, this Tribunal did not consider that Mr. Quigley was acting either genuinely or reasonably. His stated reasons for non-support were found to be inconsistent and unsupported by the evidence and were rejected as not genuine. He conveyed to Mr. Chaudhary's solicitors a false impression that he would be prepared to consider Mr. Chaudhary's case anew but did not in fact seek to do so. He also asserted that the BMA supported meritorious claims, showing that his view was, without ever having considered or evaluated Mr. Chaudhary's claim, that it was without merit. And the BMA's response was found on the evidence to be a deliberate attempt to ensure that a limitation defence remained securely in place, although outwardly maintaining the pretence that Mr. Chaudhary's claim was difficult to understand and that more information was required. In such circumstances it seems to us that the Tribunal were entitled to reject the suggestion that the BMA were refusing support because of a genuine, reasonable and legitimate need to preserve their position under the threat of litigation and to conclude as they did in paragraph 132. It is to be noted that the Tribunal reached a very different conclusion in relation to the BMA's refusal to support the STA appeal in December 1999, rejecting Mr. Chaudhary's complaint of victimisation in respect of that refusal. We also consider that the parties here could not in any event be said in February 1999 to be in a new relationship, as adversaries in litigation, where different rules are in play. The letter cannot be interpreted only as a letter before action, given its contents overall. And more than a year passed before Mr. Chaudhary presented his complaint against the BMA to the Tribunal, during which time he was continuing to seek their assistance in respect of the STA decision. This case was clearly distinguishable from Khan and we do not consider that the Tribunal erred in law in their finding that victimisation was an additional reason for the treatment of Mr. Chaudhary in February 1999. (4) TIME-LIMITS[201]The issues arising under this final ground of appeal on the liability decision are listed as follows:
"18. If the finding that the Respondent discriminated against the Applicant in December of 1999 was wrong, whether the Tribunal could find that there was a relevant act within 3 months of the IT1. 19. Whether the Tribunal was perverse in finding that there was an act extending over a period. 20. Whether the Tribunal properly and judicially exercised its discretion to extend the period for the submission of the IT1 and to do so separately in respect of each cause of action. ( The Respondent challenges whether the grounds of appeal raise as an issue whether the Tribunal did so "separately in respect of each cause of action". ) In the event this was not pursued before us."
[202]Early on in their Reasons the Tribunal referred to the serious issues which arose concerning the Tribunal's jurisdiction to entertain Mr. Chaudhary's claims, having regard to the provisions of section 68 of the 1976 Act. This provides, so far as is relevant:
"68 Period within which proceedings to be brought (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 the circumstances of the case, it considers that it is just and equitable to do so. (7) For the purposes of this section- (a) … (b) any act extending over a period shall be treated as done at the end of that period; …"
[203]Mr. Chaudhary's originating application was presented to the Tribunal on 1 March 2000. Mr. Chaudhary alleged that the BMA's refusal, by letter dated 2 December 1999, to support or assist him in his STA appeal was the final act in a series of refusals of support. He contended that there was a continuing discriminatory policy or practice not to assist him so that the act complained of extended over a period up to and including the refusal of support on 2 nd December 1999, as provided for by section 68 (7) (b). His proceedings were therefore brought in time. Alternatively, in all the circumstances and given that the full picture did not emerge until the end of 1999 or early 2000 so far as the BMA were concerned, he contended that even if there was no act of discrimination in December 1999 and his other complaints were out of time it would be just and equitable to allow them to proceed.[204]Given their findings in this case the Tribunal were able, without difficulty, to form a clear view on time-limits and jurisdiction. They concluded at paragraph 134:(a) that the refusal of the 2 December 1999 was an act of discrimination which occurred within the period of three months immediately preceding the presentation of the claim;(b) that this act of refusal was one act in a series of discriminatory refusals which occurred, in that the same requirement or condition which they had identified was imposed by the BMA in relation to "all their decisions on Mr. Chaudhary's various applications"; thus section 68 (7) (b) applied and the Tribunal had jurisdiction;(c) whilst the victimisation which occurred in relation to the refusal to support, after the solicitor's letter in February 1999, was a different sort of discrimination, it had arisen "out of the same circumstances" and they were satisfied that it would be just and equitable to allow Mr. Chaudhary to rely on that act.[205]The first issue to be determined (number 18) is resolved because we do not consider that the Tribunal's finding of discrimination in December 1999 was wrong in law. The remaining questions are whether the finding that there was an act extending over a period was perverse and whether the Tribunal properly and judicially exercised their discretion to extend the period in relation to victimisation.[206]Mr. Cavanagh submits that the finding that section 68 (7) (b) applied was perverse given that the STA decision in December 1999 was taken by a different group of people from the members of the legal department who were found to be responsible for the other acts of discrimination. He submits that it is not sufficient simply to say that, because the two groups imposed the same requirement or condition, this means that the acts complained of were part of the same continuing state of affairs. They were, rather, two separate and unconnected sets of acts of different types and by different people, with certain common features. This he submits is not sufficient to permit a finding that there was an act extending over a period within the meaning of section 68 (7) (b).[207]The meaning of "an act extending over a period" has most recently been considered by the Court of Appeal in the case of Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530 . After considering the concepts of policy, rule, practice, scheme or regime in various previous authorities, including Owusu v London Fire & Civil Defence Authority [1995] IRLR 574, 580-581, paragraphs 21-23, Rovenska v General Medical Council [1998] ICR 85 , 96 and Cast v Croydon College [1998] ICR 500 , 509, Mummery LJ giving the judgment of the Court said this at paragraph 52:
"52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'. … Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed."
[208]In our judgment the Tribunal were entitled to conclude on the evidence and their findings of fact in the present case that there was here an ongoing situation or a continuing state of affairs and therefore an act extending over a period as distinct from a succession of unconnected or isolated specific acts. Whilst the screening group did include different personnel from those in the legal department, it also included Mr. Hughes from the legal department and, in his absence, another legally qualified member of staff and a representative from the Junior Doctors' Committee. Mr. Quigley agreed that he had acted as the legal department representative on the steering group on occasions as Mr. Hughes's deputy (see paragraphs 67 and 70). There was thus, in that sense, commonality of personnel. Further the Tribunal found that the screening group had decided to refuse to challenge the STA's criteria and the assessment of the quality of training by the Royal Colleges. Thus any member seeking to challenge as racially discriminatory the criteria or decisions re the recognition of training would not be supported. And the same discriminatory requirement or condition was found to have been applied to Mr. Chaudhary by the BMA in their decision not to support Mr. Chaudhary's appeal on 2 nd December 1999 as was applied in relation to all their decisions. Essentially the BMA had delegated to the legal department and the screening group the task of deciding whether or not to support members' claims and they were found in the present case both to have adopted the same policy. At paragraph 133 the Tribunal expressly found that the decision not to support Mr. Chaudhary in his STA appeal was as a result of the discriminatory requirement or condition that such support would not be given if a member was alleging race discrimination by the Royal College or the STA. In our judgment the Tribunal were entitled to conclude in this case that there was an act extending over a period within the meaning of section of 68(7)(b). This finding was supported by the evidence and cannot be said to be perverse.[209]Mr. Cavanagh submits, finally, that the Tribunal were not entitled to find that it was just and equitable to permit Mr. Chaudhary's victimisation complaint to proceed. This he submits was irrational, given his representation by solicitors in February 1999 and the reference to possible Tribunal proceedings at that stage. It was also, he complains, a finding insufficiently explained and inadequately reasoned.[210]We agree that their conclusion on the "just and equitable" issue was shortly stated. However, on our reading of the Decision as a whole, it is clear to us that the Tribunal, by referring to the victimisation complaint as arising "out of the same circumstances" had in mind the whole continuum of behaviour on the part of Mr. Quigley throughout this period, of which they had been critical and whose evidence they did not consider to be reliable or credible. The criticisms levelled at him generally were levelled in addition at his actions in response to the letter from Russell, Jones and Walker and the victimisation complaint thus arose out of exactly the same circumstances. This was a matter for the Tribunal's discretion. They clearly considered the BMA's closing written submissions on the issue of prejudice and cogency and evidently decided against the BMA on this issue. We do not consider that they were required to set out each and every reason for their decision and what was stated in paragraph 134 was sufficiently explained in this case, having regard to all that had gone before.[211]In oral argument no submissions were addressed to us on issue number 20 which, in any event, we regard as an unnecessary task for the Tribunal, having identified an indirectly discriminatory practice and an act extending over a period. They were entitled in our judgment to conclude that they had jurisdiction to determine Mr. Chaudhary's complaints.[212]For the reasons given above under the various headings we therefore dismiss the BMA's appeal against the Tribunal's Decision on liability. The Cross Appeal[213]Since we have upheld the Tribunal's findings on indirect discrimination and have dismissed the BMA's appeal, there is no necessity for us to consider the cross appeal, which we therefore also dismiss.[214]We turn now to consider the BMA's appeal against the Tribunal's Decision on compensation. REMEDIES The Tribunal's Decision(a) (A) The Section 57(3) Ground "(1) Where an [employment tribunal] finds that a complaint presented to it under section 54 is well-founded, the tribunal shall make such of the following as it considers just and equitable- (a) ….(b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court or by a sheriff court to pay to the complainant if the complaint had fallen to be dealt with under section 57;" The BMA contended before the Tribunal that no award at all should be made in respect of indirect discrimination because of the provisions of section 57(3) of the Act. These provide that:
"(3) As respects an unlawful act of discrimination falling within section 1(1)(b), no award of damages shall be made if the respondent proves that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on racial grounds."
The BMA contended that, having regard to the Tribunal's finding at paragraph 131 of the Liability decision (that the requirement or condition may well not have been deliberate policy), they had proved that the requirement or condition identified was not applied by them with the intention of treating Mr. Chaudhary unfavourably on racial grounds. In this appeal it is submitted that the only act to be compensated would therefore be the act of victimisation identified in February 1999. The "out of time" point in the Southampton Tribunal proceedings was already doomed by then, as the Court of Appeal has subsequently held, so Mr. Chaudhary's only loss in relation to the victimisation, if any, would be for injury to his feelings. "…. the BMA's attitude to these proceedings conveyed to members and to [the applicant] by their general publications and correspondence with his lawyers was that indirect discrimination was less important than direct race discrimination." Referring to the BMA's appeal from the Liability Decision the Tribunal found that:
"Mr. Dowsett's evidence clearly showed that he did not accept that the Tribunal was right. He is of course perfectly entitled to take that attitude and indeed he may be justified in it in the Employment Appeal Tribunal but, in our view, the relevance to these proceedings is that it does not mitigate the effects of the discrimination. The only regret he expressed was that anyone should think that the Department had acted unfairly."
Overall they found the true position to be that the BMA had not done very much in all the circumstances and what they had done had been done very late. The setting up of the Equal Opportunities Committee they regarded as "pointless unless it actually does something". "22. Mr Rigby pointed to relevant findings in our first decision at paragraph 131. We have found that the imposition of the requirement may well not have been deliberate but it arose from an attitude of mind which was persisted in despite indications by others that it might be wrong or discriminatory and we certainly found that it was not justified. Section 57(3) of the Race Relations Act 1976 requires the respondent to prove that the requirement or condition in question was not applied with the intention of treating the claimant unfavourably on racial grounds. In this case of course the respondents denied that they applied any requirement or condition and indeed still do. They submit that it follows that it was not applied by them with any intention at all and if it was applied, it was not applied with the intention of treating the claimant unfavourably on racial grounds because they submit it was unconscious. We have to decide whether they have shown what Section 57(3) requires. 23. The meaning of intention for the purposes of Section 57(3) has been clarified by the case of JH Walker Limited v Hussain (1996) IRLR 11. In that case the Employment Appeal Tribunal held that intention is concerned with the state of mind of the respondent in relation to the consequences of his act. A respondent intends the consequences to follow if he knew when he did the act that they would and if he wanted the consequences to follow. 24. In this case we find that the respondents refused to contemplate the possibility of the authorities discriminating even when others suggested that they could have done and at best, they refused to consider the consequences of that state of mind. We certainly find that they did not want to support a claim of race discrimination against the authorities or to see a claim brought by a member . We think that is sufficient to indicate that they wanted to bring about the state of affairs which is the discriminatory requirement. The second limb of the requirement is that the respondents knew that the prohibited result follows. We ask ourselves "Did they know in the circumstances of this case?". We come to the conclusion that they did know, if they cared to consider it, that more Asian members than white would be affected by that attitude but they did not want to consider it expressly. That attitude was, in our view, illustrated further by the victimisation discrimination when they took action to avoid the consequences rather than to consider in reality whether they were discriminating. We note that the cases in which the defence has succeeded have been cases where the respondents have put forward a justification and have therefore of necessity, put forward a reason for acting as they did and acted consciously. We have come to the conclusion that the respondents have not established that they did not apply the requirement with the intention of treating the applicant unfavourably on racial grounds. The application of it was at best reckless. They did not want to know that they discriminated." "1. Whether the Tribunal erred in law and/or was perverse in rejecting the submission of the Respondent that s.57(3) of the RRA 1976 applied and that no damages should be awarded, particularly in the face of its finding at paragraphs 130 and 131 of the Extended Reasons on Liability. 3. Whether the Tribunal failed to apply the proper test i.e. did the Respondent intend to treat the Applicant less favourably, and that a significant cause of its decision was his race. (We observe, to ensure accuracy, that the wording used in the sub- section is "unfavourably", "not less favourably" and that no comparative exercise is required)." "35 (2) In general, cases of indirect discrimination do not involve an intention to treat persons unfavourably on racial grounds (cf cases of direct discrimination falling within s.1(1)(a)). Nevertheless, the wording of s.57(3) presupposes that there may be some cases in which the application of a condition or requirement is with the intention of treating the claimant unfavourably on racial grounds. In those cases the respondent will be liable to pay damages for applying a condition or requirement which, despite its neutral formulation, is disparate in impact." 36 (3) The burden is on the respondent company to prove that it did not apply the requirement or condition in question with the intention of treating the claimant unfairly on racial grounds. The respondent has to show a state of non-intention to treat unfavourably on racial grounds. He will fail to show that if the tribunal finds or infers a prohibited intention." And at paragraph 39 he said this:
"39 (6) Intention is a state of mind commonly required in law to accompany the performance of a specified act in order to establish liability for that act. The crucial question is what state of mind is relevant to a respondent in the particular context of s.57(3)? In our view, as a matter of ordinary English, 'intention' in this context signifies the state of mind of a person who, at the time when he does the relevant act (i.e. the application of the requirement or condition resulting in indirect discrimination), (a) wants to bring about the state of affairs which constitutes the prohibited result of unfavourable treatment on racial grounds; and (b) knows that that prohibited result will follow from his acts. In our view, s57(3) is not concerned with an inquiry into the motivation of a respondent, i.e. the reason why he did what he did. It is concerned with the state of mind of the respondent in relation to the consequences of his acts. He intended those consequences to follow from his acts if he knew when he did them that those consequences would follow and if he wanted those consequences to follow."
The EAT held that the Tribunal were entitled to conclude from their findings of fact that the company had failed to establish that it did not have the intention of treating the applicants unfavourably on racial grounds; and were entitled to take account of the company's knowledge of the consequences of its acts and to draw an inference that it wanted to produce those consequences. At paragraph 41 the EAT stated:
"41 … The fact that the company's reason or motive in adopting and applying the holiday policy was to promote its business efficiency does not, in our view, either displace the company's knowledge of the consequences, which follow from applying that condition or requirement, or prevent the industrial tribunal from inferring that the company wanted to produce a state of affairs in which the applicants were in fact treated unfavourably on racial grounds. The tribunal were entitled to find that the company did not have the benefit of s.57(3)." "
Depending on the circumstances, a tribunal may infer that a person wants to produce certain consequences from the fact that he acted knowing what those consequences would be. For example, if an employer continued to apply a condition or requirement after it had been declared by a tribunal that it resulted in unlawful indirect discrimination and thus knew of its prohibited disparate impact, it would not be difficult for an industrial tribunal to infer that he intended to treat an employee unfavourably on racial grounds, even though his reason or motive for persisting in the action was one of business efficiency." (B) Other General Grounds of Challenge "3. Whether the Tribunal took account of alleged failures by the Respondent which were not the subject of a finding of discrimination or victimisation. 4. Whether the Tribunal failed properly or adequately to assess the loss of a chance. 5. Whether any reasonable Tribunal properly directing itself could have concluded that there was a 50% chance that the Applicant would have been entered on the Specialist Register if no acts of discrimination had taken place." Issue number 3 Issues 4 and 5: Loss of a Chance "I bear in mind that there are many statements in the authorities on the narrow circumstances in which it would be proper for an appellate body to interfere with the assessment of damages by a tribunal. We were referred in particular to Gbaja-Biamila v DHL Ltd [2000] ICR 730 at p.742 paragraph 36, where Lindsay J, the then President of the Employment Appeal Tribunal, said this:
'An appellate court, when reviewing the quantification of compensation by an employment tribunal, should not act as it would when reviewing an award of damages by a jury. In contrast to a jury, the tribunal is expected to give reasons and hence can be judged by those reasons: Skyrail Oceanic Ltd v Coleman [1981] IRLR 398, 401. That is not to say that the employment tribunal's sovereignty as to facts is here in question. Only if, firstly, a tribunal's given reasons expressly indicate that it has adopted a wrong principle of assessment, or, secondly, (that not appearing by reason of its either correctly stating the principles or stating none) it has arrived at a figure at which no tribunal properly directing itself by reference to the applicable principles could have arrived, will the assessment demonstrate an error of law, the only class of error which this appeal tribunal can correct. That second category may fairly be described as one where the award has been perverse, an award so high or low as to prompt in those aware of the relevant facts found and the applicable principles a reaction that the award was wholly erroneous, even outrageous: see also the collection of definitions of perversity in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 at 443.'
This court, like the Appeal Tribunal, will interfere with such assessments with reluctance, given that the tribunal as the industrial jury can be expected to make broad brush assessments which reflect the tribunal's local knowledge and experience." The Court of Appeal also observed in that case that the Tribunal had had to do what it could with the evidence put before it and that it was significant that Bentwood chose not to put in any evidence. These remarks have a resonance with the present case and we shall return to them later on. (C) Loss of Earnings "6. Whether the Tribunal ( took into account or) should have taken into account the fact that entry onto the Specialist Register did not mean that a doctor would have become a Consultant. 7. Whether the Tribunal erred in finding that the total loss of earnings was £1,250,000 and/or failed to give adequate reasons for so finding. 8. Whether the Tribunal erred in finding that the Applicant had lost his career and/or failed to give adequate reasons for the finding. 9. Whether the Tribunal erred in finding that it was reasonable for the Applicant to give up his medical career and/or failed to give adequate reasons for so finding." Issue 6 – Would Mr. Chaudhary Have Become a Consultant ? Issue 7 – Alleged Error in Assessing Total Losses at £1,250,000 (D) Injury to Feelings "10. Whether the Tribunal reached a decision which no reasonable Tribunal could have reached in respect of the indirect discrimination found at paras. 130 and 131 in the Extended Reasons on Liability." (F) Aggravated Damages "13 Whether the Tribunal erred in law in awarding aggravated damages in an indirect discrimination case and in the face of paragraphs 130 and 131 aforesaid." (E) Legal Costs "11. Whether the Tribunal erred in law in awarding the Applicant £75,000 legal costs paid by legal expenses insurers when he was under no obligation to repay them (see Groom v Crocker [1939] 1KB 194) ( but lost the benefit of legal expenses insurance to that amount in further litigation if he did not repay them). 12. Whether the Tribunal erred in law/was perverse in concluding that the Respondent should compensate the Applicant for the costs arising from judicial review proceedings where there was no evidence or finding that the Respondent discriminated against the Applicant in respect thereof." "35. … In fact also we accept that he has lost because there is a limit to his insurance. If he was able to reimburse his insurers for costs already paid by them under the policy the limit will thereby be released further in relation to the event in question. We accept it is true, as the applicant concedes, that if he recovers any compensation for these costs he has an obligation to refund his insurers. We accept Mr Rigby's submission that that obligation only arises if the applicant actually receives the compensation referable to those costs. He does not have the obligation to pay his insurers those costs unless he receives them from elsewhere. However, the fact that he had the resources to litigate in this way arises only from his own act of insuring and we are therefore satisfied that he is entitled to recover the loss because it arises from the discrimination in our view." Interest "14. Whether the Tribunal erred in law in finding that the date of the act of discrimination for interest purposes was the 4 th of December 1996 rather than December 1997."