DR A A BARI v THE GENERAL MEDICAL COUNCIL [2005] UKEAT 0660_05_2809

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0660_05_2809Case No Appeal No. UKEATPA/0660/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR A A BARIAPPELLANTTHE GENERAL MEDICAL COUNCILRESPONDENT
Before
His Honour Judge Peter ClarkDate 28 September 2005
[1]APPEARANCES For the Appellant MISS JENNIFER EADY (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme SUMMARY Race Discrimination Section 12 RRA complaint. No ET jurisdiction, RRA s54(2), applying Chaudhary [2003] ICR 1510 , paras 84-120 (Mummery LJ). HIS HONOUR JUDGE PETER CLARK The issue in this proposed appeal is whether the Employment Tribunal had jurisdiction to entertain a complaint of racial discrimination/victimization brought by Dr Bari against the General Medical Council ("GMC") under section 12 of the Race Relations Act 1976 ("RRA") or whether jurisdiction is precluded by operation of the provisions of section 54(2) of the 1976 Act. Before me today, Dr Bari is represented by Miss Jennifer Eady of Counsel under the ELAAS pro bono scheme. Background[2]By his Claim Form Dr Bari ("the Claimant") refers to the GMC's first refusal to grant him full registration as a medical practitioner in 1992-1994, which he alleges was based on racist grounds, that on 13 May 2004 the GMC retaliated and victimized him again on racist grounds and that on 31 March 2005 they decided to continue on their decision to suspend him for a further six months.[3]By a letter dated 27 April 2004 the London Central Tribunal informed the Claimant that a Chairman, Mr Baron, had considered his application and concluded that the application appeared to arise out of the decision of the Interim Orders Panel ("IOP") (formerly the Interim Orders Committee ("IOC")) of the GMC dated 4 April 2005 to suspend his registration for 18 months. The Chairman noted that the GMC is a licensing authority to which the provisions of section 12 RRA applied, however, he found that the Tribunal had no jurisdiction to hear Dr Bari's complaint by virtue of section 54(2) RRA because a right of appeal existed to the High Court against the interim suspension order made by the IOP under section 41A(10) of the Medical Act 1983. The proposed appeal[4]The Claimant's Notice of Appeal was considered by HHJ McMullen QC, and by letter dated 8 July 2005 the Claimant was informed that in that Judge's opinion the appeal had no reasonable prospect of success on the grounds that the Chairman was right to hold that the Tribunal had not jurisdiction because of section 41A(10) of the Medical Act and the RRA section 12. Reference was made to the Chaudhary litigation definitively dealing with this issue. See Chaudhary v Specialist Training Authority [2003] ICR 1510 , paragraphs 84-120 (per Mummery LJ). A direction was given under Rule 3(7) of the EAT Rules that no further action be taken on the appeal.[5]Dissatisfied with that outcome the Claimant has exercised his right under Rule 3(10) to refer the matter to a Judge for an oral hearing. That is the hearing before me today. Jurisdiction[6]On paper, and this has been further emphasized by Miss Eady on his behalf this morning, Dr Bari is anxious to canvas before me or any Court his case that he has been subjected to racially discriminatory treatment and/or victimization at the hands of the GMC. However, first he must satisfy me that he has reasonable grounds for appealing against the Tribunal Chairman's ruling that the Tribunal has no jurisdiction to entertain his claim.[7]Section 41A(1) of the 1983 Act provides that the IOC (now IOP) may, in certain circumstances, make an order suspending a person's registration for a period not exceeding 18 months. Section 41A(10) provides for a right of appeal to the High Court against any such suspension order. Dr Bari has included, within the bundle before me, draft Grounds of Appeal to the High Court against an order of the IOC dated 13 October 2004, directing that the suspension order made on 13 May 2004 (referred to in the Claim Form in these proceedings) should remain in place. Those Grounds of Appeal were settled by Mr Martin Westgate of Counsel. I enquired of Miss Eady what had happened in relation to that proposed appeal. I am told that Dr Bari pursued the appeal. There was a hearing in the High Court on 17 June this year when Dr Bari appeared in person and that hearing was adjourned until 14 November 2005.[8]Paragraph 28 of those draft Grounds reads as follows:
"A complaint under section 12 [RRA] is normally to be made to an Employment Tribunal. However, that does not apply to a complaint under section 12(1) of an act in respect of which an appeal or proceedings in the nature of an appeal, may be brought under any enactment (section 54 of the 1976 Act)."
[9]The Chaudhary litigation in the Court of Appeal raised an issue as to whether Mr Chaudhary could bring a complaint of race discrimination against the Specialist Training Authority under section 12 RRA . The nature of his complaint was that, on racial grounds, the STA had refused to enter him on the specialist register, thus preventing his transition to eventual consultant status. There existed a right of appeal to the STA appeal panel derived from an Order in Council made under section 2(2) of the European Communities Act 1972.[10]In his judgment at paragraphs 84-120 Mummery LJ reviewed the earlier cases on the jurisdictional question under section 54(2) of Khan v GMC [1996] ICR 1032 and R v Department of Health ex parte Ghandi [1991] ICR 805 and concluded that, as the Employment Tribunal Chairman and a subsequent division of the EAT on which I sat had found, section 54(2) RRA was engaged and that the Tribunal had no jurisdiction to entertain that claim. In reaching that conclusion Mummery LJ also held that the meaning of section 54(2) RRA was unambiguous, so that it was not incompatible with Article 6(1) of the European Convention on Human Rights, nor was it incompatible with Article 39 (formerly Article 48) of the EC Treaty, providing for the free movement of workers within the Community. Before me this morning Miss Eady acknowledges and accepts on behalf of Dr Bari that that following Mummery LJ's judgment in Chaudhary , with which the other members of the Court agreed, it is now not open to him to argue that the Chairman was wrong in law in refusing to accept his claim in April 2005.[11]Armed with that concession by very experienced Counsel and based on the Court of Appeal's reasoning in Chaudhary , by which I am of course bound, I have concluded that the right of appeal to the High Court against decisions of the IOP afforded to Dr Bari by section 41 (A)10 of the Medical Act 1983, directly engages section 54(2) RRA so as to exclude the Tribunal's jurisdiction to entertain his claim, as the Chairman Mr Baron found. Further, I am not persuaded that any question of incompatibility arises between sections 12 and 54 RRA and Article 6 and /or 14 ECHR, as was argued by Dr Bari on paper. I am further satisfied that even were such incompatibility shown this Appeal Tribunal has no jurisdiction under the Human Rights Act 1998 to make a declaration of incompatibility. See Whittaker vPD Watson [2002] ICR 1244 .[12]Further, applying the reasoning of Mummery LJ in Chaudhary, paragraph 120, I am unable to discern any breach of EC Directive 2000/43, that is the principle of equal treatment between persons irrespective of racial or ethnic origin, since the rule providing for appeal to the High Court under section 41A(10) of the Medical Act against decisions of the IOP applies equally to all doctors regardless of their nationality or racial or ethnic origins.[13]However, that is not quite the end of the matter. Miss Eady raises on Dr Bari's behalf events which have occurred since 27 April 2005 when the Chairman made his decision in this case. Specifically, she tells me and the letter has been produced before me, that on 3 August 2005 the GMC 'Fitness to Practice' panel wrote to Dr Bari and in that letter made these two observations. First, that he had agreed on oath to undergo a formal assessment of his professional performance, and secondly, and materially, he had agreed under oath that he would not object to an application by the GMC to the High Court to extend the period of suspension which began on 13 May 2004 as a result of the Interim Orders Committee, now IOP's decision.[14]It is submitted in these circumstances on behalf of Dr Bari that the basis on which the Chairman found that section 54(2) was engaged does not in fact apply. That is to say, that he having been persuaded to waive any objection to an extension of the suspension beyond 12 November 2005 the statutory right of appeal for the purposes of section 54(2) RRA afforded by the Medical Act no longer applies. I have considered that submission but it is subject to a number of difficulties which Miss Eady, very fairly, has pointed out.[15]The first is that this appeal is an appeal against the decision of the Tribunal Chairman reached on 27 April 2005. It follows that subsequent events cannot affect the decision made on that date, specifically the concession apparently made by Dr Bari to the Fitness to Practice panel in August of 2005.[16]Secondly, Miss Eady again very fairly tells me that Dr Bari has put in a fresh Employment Tribunal claim arising out of the concession which he apparently made in August 2005 to the Fitness to Practice panel. It therefore follows that the question, as to whether or not any waiver on his part somehow removes the statutory right of appeal ordered by section 41A(10) of the Medical Act, falls to be determined in the new proceedings and not in the present proceedings under appeal to me. I make absolutely no observation on the merit of the point which will have to be considered by a Chairman when the new Claim Form is received.[17]It follows that in my opinion nothing that happened in August affects the judgment which I have to make in this proposed appeal for the reasons which I have given earlier, and in particular bearing in mind the proper concession made by Miss Eady, based on Mummery LJ's judgment in Chaudhary . I am not persuaded that any point of law arises in relation to the Chairman's decision of 27 April 2005. It follows that this application must be dismissed and consequently the proposed appeal fails and is dismissed.