DR MOHAMMED FAWZY SOLIMAN HASSAN v GENERAL MEDICAL COUNCIL [2005] UKEAT 0807_04_0504

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0807_04_0504Case No Appeal Nos. UKEAT/0807/04/MAA UKEAT/0808/04/MAA UKEAT/0880/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR MOHAMMED FAWZY SOLIMAN HASSANAPPELLANTGENERAL MEDICAL COUNCILRESPONDENT
Before
His Honour Judge Prophet Ms K Bilgan Mr J HoughamDate 5 April 2005
[1]APPEARANCES For the Appellant DR MOHAMED F SOLIMAN HASSAN (The Appellant in Person) For the Respondent MR ANDREW GEORGE (Of Counsel) Instructed by: General Medical Council Legal Services Regents Place 350 Euston Road London NW1 3JN SUMMARY Race Discrimination Exclusion of jurisdiction of employment tribunals under Section 54(2) of the Race Relations Act 1976 in respect of powers of General Medical Council on registration of doctors whose qualifications were gained outside UK. HIS HONOUR JUDGE PROPHET The General Medical Council (G.M.C.) is the body principally responsible for the registration of doctors practising in the United Kingdom. Since early in 2001 Dr Hassan, who qualified as a doctor outside the United Kingdom, has been seeking registration from the G.M.C. Three different forms of registration arise, i.e. Full Registration, Limited Registration and Specialist Registration, although it now seems clear that the General Medical Council is not able to confer authorisation for Specialist Registration. In that respect, the issue is whether the doctor qualifys in accordance with the European Specialist Medical Qualifications Order 1995 , that being a matter not for the G.M.C. but for the Specialist Training Authority of the Medical Royal Colleges (S.T.A); see the judgment of Mr Justice Collins in The Queen (Hassan) v General Medical Council in the Administrative Court. (Friday 25 February 2005).[2]On 2 July 2003, Dr Hassan submitted the first of seven applications against the G.M.C. to the Employment Tribunal at London Central, complaining of race discrimination arising from his dealings with the G.M.C. in respect of, or related to, registration.[3]That first claim by Dr Hassan came up for a preliminary hearing before an Employment Tribunal sitting at London Central on 17 September 2003, with Mr Bedeau as the Chairman and Mr Kurukulaaratchy and Mr Walker as the lay members. Dr Hassan represented himself and Mr De Marco of Counsel represented the G.M.C.[4]The Employment Tribunal identified Dr Hassan as having applied for Limited Registration on 11 February 2001 and that such registration was granted on 10 July 2001. Pausing there, at the proceedings today, Dr Hassan has attempted to say that the granting of such registration on 10 July 2001 was not correct but that was the way that he pursued it at the Employment Tribunal. It was acknowledged as such at the time by the G.M.C. and clearly the Employment Tribunal accepted that that was common ground. It is now, in our view, too late for him to attempt to go back on that position.[5]During that period, i.e. between February 2001 and July 2001, as is fully set out in the Employment Tribunal's reasons, Dr Hassan was advised by the G.M.C. as to what was required of him to enable the Council to consider any application from him for Full Registration. However, Dr Hassan did not so apply at that time. The Employment Tribunal determined that having regard to the time which had passed between the events in 2001 and the presentation of the application to the Employment Tribunal in July 2003, any complaints of race discrimination related to those matters were well out of time and that there was not, as Dr Hassan submitted, any continuing act.[6]The Employment Tribunal further identified Dr Hassan as having applied for Full Registration on 10 January 2003 but that no decision in respect of that application had been made by the G.M.C. as at the date of the Employment Tribunal hearing i.e. 17 September 2003. However the Employment Tribunal could not see how, in any event, the Employment Tribunal could have jurisdiction to consider any claim of race discrimination relating to that matter because of the effect of Section 54(2) of the Race Relations Act 1976 . That arose because Section 29 of the Medical Act 1983 (which Act contains the statutory duties and powers of the G.M.C.) provides a form of appeal to the Review Board for Overseas Qualified Practitioners.[7]The Employment Tribunal set out the relevant law for that matter in Paragraphs 11-15 of their Extended Reasons i.e. Section 12 of the Race Relations Act 1976 and Section 54(2), which provides that the right to complain to an Employment Tribunal:
"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."
[8]That summary of the law appears to us to be a correct statement and the outcome of the Employment Tribunal's hearing was a unanimous decision that it had no jurisdiction to consider Dr Hassan's complaints of race discrimination, as either being presented outside the three month time limit or, in any event, falling within Section 54(2) of the Race Relations Act 1976 .[9]Dr Hassan sought a review of the Employment Tribunal's decision which was refused by the Employment Tribunal Chairman on 2 March 2004 on the grounds that the application for a review had no reasonable prospects of success. Dr Hassan appealed the Employment Tribunal decision to the Employment Appeal Tribunal and also the refusal to review.[10]Following the first claim a further six applications against the G.M.C. from Dr Hassan were presented to the Employment Tribunal, all relating to alleged race discrimination in regard to some form of registration. The Employment Tribunal made an order, dated 17 February 2004, for those further applications to be consolidated and heard together by an Employment Tribunal. There was no appeal lodged by Dr Hassan against that order. Following a hiccup on that matter, duly sorted out by His Honour Judge Peter Clark at the Employment Appeal Tribunal on 5 May 2004, that consolidated hearing at the Employment Tribunal at London Central duly took place on 16 July 2004, with Ms Monk as the Chairman and Mr Carter and Mr Secher as the lay members.[11]Dr Hassan, again, was self represented and Mr George of Counsel represented the G.M.C. In a clear and comprehensive set of reasons that Employment Tribunal found essentially that the effect of Section 54(2) of the Race Relations Act 1976 , in the particular circumstances, acted as a complete bar to Dr Hassan's complaints. They reached that conclusion having particular regard to the judgment of the Court of Appeal in Khan v General Medical Council [1994] IRLR 646. Consequently all the further applications by Dr Hassan fell to be dismissed. Dr Hassan has also appealed that decision and all his appeals have been consolidated for today's appeal hearing.[12]Dr Hassan did not submit, as he was asked to do, a skeleton argument and on 14 March 2005 he asked the Employment Appeal Tribunal to revoke the order in relation to filing skeleton arguments saying that he would rely on the arguments in the Notices of Appearance. He then added this:
"In the meantime, I will be providing the Tribunal with written submissions by the date of 21/3/2005 for the use of the Tribunal in case that I am not able to attend. This might be read by the Tribunal in advance of the hearing as well."
[13]We did, therefore, prior to this hearing read the written submissions which he sent to us. However he has attended before us today but indicated that he did not wish to advance further argument until he had heard the position from Mr George. In that situation we decided to remind ourselves again of the content of the written submissions before proceeding further which we did. Mr George of Counsel again represented the G.M.C. Following Mr George's submissions, Dr Hassan then made further submissions.[14]The Court of Appeal, in the Khan case considered the argument, which has been a primary part of Dr Hassan's submissions to us today, that the exclusion of the Employment Tribunal's jurisdiction in matters of registration by the G.M.C., means that his opportunity of having race discrimination allegations related to those matters fully considered has been unlawfully curtailed.[15]The judgment of the Court of Appeal, in the Khan case, clearly rejected that argument and there is now, although it was not before the Employment Tribunal, a further recent Court of Appeal decision in Chaudhary v The Specialist Training Authority Appeal Panel and Others which was reported at 2005, All England Reports D at page 256 which considered but rejected, with particular reference to the Human Rights Act 1998, arguments that Khan had not been correctly decided. Nothing which Dr Hassan has submitted to us today has persuaded us that the conclusions in those two cases is somehow to be doubted, even if they did not, as clearly they do, bind this Tribunal.[16]Dr Hassan has pursued detailed submissions to us today that the G.M.C. has deliberately omitted to deal with his requests for registration within reasonable time periods and that there is a distinction to be drawn between omissions of that nature and actual refusals, so as to cause Section 54(2) not to apply. However we are not persuaded that that is so.[17]We have preferred Mr George's submissions to us. Where there are requirements to be followed before a registration can be granted and the person applying does not wish to meet those requirements, there is bound to be delay. The nature of the exclusion of the Employment Tribunal from registration matters, arising from Section 54(2), only makes sense if it applies to the process as a whole.[18]It may be that there are matters which Dr Hassan has attempted to put to us today about G.M.C. policies relating to registration, which might benefit from consideration, but that can be done through the procedures within the G.M.C. We would today, urge Dr Hassan to follow the advice from Mr Justice Collins in the Administrative Court in the case referred to in paragraph 1 above, to pursue the procedures which are presently available to him. If at the end of that process he remains with a grievance about his treatment then presumably he might pursue those matters through judicial review.[19]Today however, we have been obliged to limit our consideration of his appeals to the issue of whether the Employment Tribunal has jurisdiction to examine the matters which concern Dr Hassan. We have not been persuaded by him, notwithstanding his most courteous presentation to us today, that the Employment Tribunal fell into error in applying Section 54(2) as they did to his various applications to the Employment Tribunal and consequently we shall dismiss all his appeals.