MR RAVINDRA W KULKARNI v (1) NHS EDUCATION SCOTLAND (2) MR DAVID LARGE [2012] UKEAT 0031_12_1610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2012] UKEAT 0031_12_1610Case No Appeal No. UKEATS/0031/12Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
MR RAVINDRA W KULKARNIAPPELLANT(1) NHS EDUCATION SCOTLAND (2) MR DAVID LARGERESPONDENT
Before
Lady SmithDate 16 October 2012
[1]APPEARANCES For the Appellant MR RAVINDRA W KULKARNI (The Appellant in Person) For the Respondents MR I TRUSCOTT (One of Her Majesty's Counsel) Instructed by: NHS Scotland Central Legal Office Anderson House Breadalbane Street Bonnington Road Edinburgh EH6 5JR SUMMARY RACE DISCRIMINATION Discrimination. Consultant surgeon's complaint of discrimination based on the fact that he had not had a trainee allocated to him for five years. "Qualifications body" – Equality Act 2010 ss 53 and 54. Appeal by consultant surgeon against Tribunal's determination that NHS Education Scotland (whose principal objective was to provide education services), was not a qualifications body to whom the provisions of EA 2010 applied, dismissed. THE HONOURABLE LADY SMITH Introduction This is an appeal from the judgment of an Employment Tribunal sitting at Glasgow, Employment Judge Murphy sitting alone, holding that NHS Education Scotland were not a qualifications body under and in terms of sections 53 and 54 of the Equality Act 2010 ("EA") and dismissing the claim against them. The body of the judgment also indicates that the Tribunal's decision was also to dismiss the claim insofar as directed against Mr David Large.[2]I will continue, for convenience, to refer to parties as Claimant and First/Second Respondent.[3]The Claimant represented himself before the Tribunal and before me. The Respondents were both represented by Ms Craik, solicitor, before the Tribunal and by Mr Truscott QC before me.[4]The Claimant is not employed by either Respondent. He is a consultant orthopaedic surgeon employed at Wishaw General Hospital. He complained that he had not been allocated a trainee for five years. He alleged that that the non-allocation to him of trainees was racially motivated. Background[5]On the facts found by the Tribunal, the First Respondent is a statutory body which has as its principal objective the provision of educational services for those who work in the NHS in Scotland. They, accordingly, have responsibility in respect of the education and training of trainee surgeons.[6]The Second Respondent is not employed by the First Respondent. He is employed by Ayrshire and Arran Health Board. His work involves him spending one sixth of his time on tasks for the First Respondent including the allocation of trainee surgeons to consultants in the west of Scotland. Consultants to whom trainees are allocated have, in turn, onerous training and supervision responsibilities in relation to their trainee (Tribunal's judgment: paragraphs 20, 21, 22, 35). The Tribunal inferred that when allocating trainees to consultants, the Second Respondent would strive to select those consultants whom he believed were likely to be best at training (paragraph 41).[7]A consultant does not need a trainee to do his work (paragraph 24). Any consultant can have a trainee allocated to him. The status of consultant is dependent on registration by the General Medical Council ("GMC"); the First Respondent has no power to award that status to a doctor.[8]There are, however, some positive factors involved in having a trainee.[9]Consultants who have trainees allocated to them generally find that it leads to greater job satisfaction; they are consultants who enjoy teaching. That said, trainees are not universally valued (paragraph 34).[10]The Claimant considered that it was of value to have a trainee since if he had one, it would relieve him of some routine work thus freeing him up to carry out research (paragraph 35).[11]The Claimant viewed having a trainee as an opportunity to network but any advantage gained thereby was minimal (paragraph 36).[12]A significant number of - though not all - health professionals hold consultants who have trainees in somewhat greater esteem than they would otherwise do (paragraph 41).[13]Overall, having a trainee confers some advantage on the relevant consultant but the advantage thus conferred is minimal (paragraph 43).[14]In his form ET1, the Claimant complains that "David Large has consistently not allocated any SpR/ST trainee holding a NTN (national training number) to me on the 'trainee distribution chart' during the period from October 2006 up to July 2011…" and it is clear that the target of his criticisms and allegations is David Large, the Second Respondent.[15]In a letter to the Tribunal dated 24 November 2011, the Claimant stated that his case was primarily against the Second Respondent, a position which he confirmed at the outset of the appeal hearing. The Tribunal's Decision[16]The Tribunal held that the First Respondent was neither a qualifications body under EA sections 53 - 54 or an employment service provider under EA sections 55 - 56 [1] . The Claimant challenged the determination in respect of the "qualifications body" issue in the course of the appeal before me. The Claimant's submission was that the prohibitions against discrimination provided for by EA applied to the First Respondent by virtue of those statutory provisions.[17]The Tribunal records, at paragraph 62, that the Claimant accepted that if he was to succeed in his case that the First Respondent was a qualifications body, it could only be on the basis that it was an authority which could confer a relevant qualification that would facilitate engagement in his profession.[18]The Tribunal rejected the proposition that the First Respondent was a qualifications body within the meaning of section 53 - 54 of EA. First, the First Respondent could not confer any authorisation, qualification, recognition, enrolment, approval or certification which was needed for the Claimant's profession.[19]Secondly, whilst the word "engagement" was ambiguous and was synonymous with involvement, the Tribunal was not satisfied, on the facts, that having a trainee facilitated engagement in the medical profession. Having a trainee did not amount to the conferment of any qualification, and there was no test that had to be passed before a consultant could be allocated a trainee (the only requirement was that the consultant be duly registered with the GMC). Although much had been said about the advantages to be gained by having a trainee, that was not determinative; even if having a trainee facilitated engagement in the profession it could not be said that the decision to allocate one amounted to the conferment of a qualification. The Tribunal was not satisfied that being allocated a trainee in any practical sense would enable the surgeon who had one to engage in the profession any more than a surgeon who did not have one. There was nothing that such a surgeon would be qualified to do after such allocation that he was not qualified to do before it. In those circumstances, the Claimant had not established that the Respondent was a qualifications body.[20]The tribunal referred, in support of its reasoning, to the statutory provisions and to the cases of British Judo Association v Petty [1981] ICR 660, Tattari v Private Patients Plan Ltd [1997] IRLR 586, and Loughran and anr v Northern Ireland Housing Executive [1998] IRLR 593 . Relevant Law[21]EA does not proscribe discrimination in all circumstances. To the contrary, it sets out carefully the precise circumstances in which discrimination can give rise to a relevant claim. In particular, where a claimant alleges that he has suffered discrimination by a body which is not his employer but has the power to confer professional qualifications, as a pre-requisite, he must show that that body is a "qualifications body" as defined by sections 53 and 54 of EA.[22]Insofar as relevant, sections 53 - 54 of EA provide:
"53 Qualifications bodies E+W+S (1) A qualifications body (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding upon whom to confer a relevant qualification; (b) as to the terms on which it is prepared to confer a relevant qualification on B; (c) by not conferring a relevant qualification on B. ……… 54Interpretation E+W+S (1) This section applies for the purposes of section 53. (2) A qualifications body is an authority or body which can confer a relevant qualification. (3) A relevant qualification is an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular trade or profession."
[23]Accordingly, the key question for the Tribunal was whether or not the Claimant had established that the First Respondent had the power to confer on the Claimant a qualification of the type listed in section 54(3), the nature of which was likely to facilitate the Claimant's engagement in a profession to which he had already been admitted as a member. It did not also require to be satisfied that the qualification was "needed" before the Claimant could engage in his profession, "needed for" and "facilitates" being disjunctive (as in section 12(1) of the predecessor Race Relations Act 1976 - see: Paterson v Legal Services Commission [2004] ICR 312 at 345).[24]Where an issue arises as to whether or not a respondent is a "qualifications body", the tribunal's task is, essentially, set by the words of the statute. It requires first to decide what are the facts in the particular case. That involves determining what as a matter of fact was the interrelationship between the claimant and respondent, if any. Then, applying the statutory terminology, the tribunal requires to ask whether, in the context of that interrelationship, there was anything that the respondent could do which amounted to granting to the claimant an authorisation, qualification, recognition, registration , enrolment, approval or certification? The contextual setting for that list is clearly one of formality and connotes B (as referred to in section 53) being specifically declared by A as having attained a particular set standard. If A does not have the power to set such a standard and make such a declaration then A cannot be a qualifications body within the meaning of section 53.[25]The authorities referred to before the Tribunal and before me provide some useful illustrations of the application to particular facts and circumstances of similar provisions in the Race Relations Act 1976 s.12 , Sex Discrimination Act 1975 s.13 and Fair Employment (Northern Ireland) Act 1976 s.23 but, as always, the task for the Tribunal is to apply the statutory provisions. I will deal with the authorities briefly.[26]In British Judo Association there was no issue as to whether or not the respondent had the power to award certification (as a national referee); the issue was whether or not the holding of such a certificate facilitated engagement in the claimant's profession. On the facts, although she did not require the qualification for her then current job, having it would be likely to enhance her future job prospects; she did not have to show that they had actually been damaged thus far. The respondent was, accordingly, a qualifications body.[27]In Tattari , the respondent was a commercial organisation which provided private medical insurance cover. They had rejected an application by a plastic surgeon to be added to their list of surgeons; she had not held a substantive NHS consultant post nor did she have a certificate of higher specialist training from the Royal College of Surgeons, as their rules required, before a surgeon could be added to their list. The Court of Appeal held that they were not a qualifications body. Section 12 of the Race Relations Act had to be read as a whole and referred to bodies similar to those who were empowered to grant medical qualifications. At p.111 Beldam LJ observed:
"….in relation to the practice of medicine the recognition, registration or facilitation of practice is granted by bodies authorised in the public interest to ensure an appropriate standard of qualification. Thus I consider that section 12 of the Act of 1976, referring as it does to an authority or body which confers recognition or approval, refers to a body which has the power or authority to confer on a person a professional qualification or other approval needed to enable him to practise a profession, exercise a calling or take part in some other activity. It does not refer to a body which is not authorised to or empowered to confer such qualification or permission but which stipulates that for the purpose of its commercial agreements a particular qualification is required."
[28]Thus, the fact that an organisation applies set criteria when considering whether or not to grant an application the success of which would be regarded by a professional person as being beneficial to them did not, of itself, show that they were a relevant qualifications body.[29]Similarly, in Loughran , the House of Lords held that the Northern Ireland Housing Executive which maintained panels of solicitors to whom they would give instructions in certain types of litigation were not a qualifications body. At paragraphs 30 and 34, Lord Slynn, with whom Lords Griffiths, Lloyd of Berwick and Clyde expressly agreed, explained the reasons for so concluding:
"30….The tribunal referred to the decision in Department of the Environment for Northern Ireland v Bone (unreported but dated 15 September 1993 in that the court said: 'It is our view that the word 'qualification' itself and the other words in the definition, viz "authority, recognition, registration, enrolment, approval and certification" convey with reasonable clarity the idea of (a) some sort of status conferred on an employee or self employed person in relation to his work, or the work which he proposes to do; and as respects a self-employed person, in relation to his trade profession or calling; (b) a status which relates only to a person carrying on that work or trade, profession or calling; and (c) is either necessary for the lawful carrying on thereof or making that carrying on more advantageous.' … 34. I agree that the wording of the Act of 1976 is wider than that of the Act of 1996 and that the emphasis on 'status' in Bone may be subject to further argument though the word 'status' may give some indication of the essence of 'qualification'. I am however satisfied that 'qualification' as defined does not cover the appointment of a duly qualified professional man to carry out remunerated work on behalf of a client, however prestigious the client."
[30]At paragraph 74, Lord Clyde added :
"Section 23 is concerned with the exercise or non-exercise of a power to confer a qualification such as is envisaged in the section. That is something more than a decision to demand a particular qualification before accepting someone as a recognised practitioner for the purposes of particular operations ( Tattari v Private Patients Plan Ltd [1997] IRLR 586). It is also something more than selecting someone to provide for oneself the professional services which that person is already qualified to perform. The Executive here was not exercising a power to grant qualifications and their selection of and retaining of particular firms to do their litigation work did not fall within the scope of s.23."
[31]It was plainly not enough that the applicants themselves saw it as being to their benefit to be included in the relevant panel.[32]Paterson was an example of a case where the respondent was exercising a power of the sort envisaged by their Lordships in Loughran as being required before the body in question could be classed as a qualifications body. The claimant was a solicitor who sought a franchise from the respondent to carry out legal aid work. Before any such franchise was granted to an applicant solicitor, the respondent, acting in the public interest, put the applicants through a rigorous system of accreditation involving their undergoing audit tests which they could either pass or fail. If they passed then they were certified as having attained the Legal Aid Franchise Quality Assurance Standard. At paragraph 76, Clarke LJ, giving the judgment of the court, explained that they were satisfied that the grant of franchise was a form of recognition within the statutory definition, adding: "Moreover it seems to us that the commission is the type of body to which the section is intended to apply…." and at paragraph 75, explained that they were satisfied that the grant of franchise would facilitate engagement in the profession; indeed, in that case, there was evidence that without it, the applicant, who was a sole practitioner, would have to close down her legal practice.[33]Finally, in the case of Watt (formerly Carter) v Ahsan [2009] 1 AC 696, where the Labour party had not selected the applicant as a candidate for the purpose of local authority elections, Lord Hoffman said, at paragraph 18:
"….logically the first question to be answered is whether the Labour Party is a qualifying body for the purposes of section 12. In my opinion, for the reasons given by Peter Gibson LJ in Ali v McDonagh [2002] ICR 1026 it is not. The notion of an "authorisation or qualification" suggests some kind of objective standard which the qualifying body applies, an even handed, not to say "transparent", test which people may pass or fail. The qualifying body vouches to the public for the qualifications of the candidate and the public rely upon the qualification in offering him employment or professional engagement."
[34]As in Paterson , the public interest element was emphasised. The reason for that seems obvious; the point of a body regulating admission to, advancement in or engagement in a trade or profession is that the public interest ought thereby to be furthered and protected. The Appeal[35]Mr Kulkarni's case was, essentially, that the Tribunal ought to have found that the First Respondent was a qualifications body because having a trainee would have had significant advantages. That was all that was required for the purposes of the statutory provisions. His focus was very much on the expression "facilitates engagement". Having a trainee would, he said, in many ways facilitate engagement in his profession. He did not address that part of section 54(3) which provides that a relevant qualification must constitute an authorisation, qualification, recognition, registration, enrolment, approval or certification.[36]He referred to the positive factors to which I refer above and asserted that they were not simply a matter of amounting to some advantage. They would be a significant advantage. He sought, on a number of occasions to, in effect, give evidence about the nature and extent of those advantages as he perceived them to be. I, in turn, sought to explain to him that it was not open to him to give evidence and that he had to proceed on the basis of the facts as found by the Tribunal; this was not an appeal in which the Claimant sought to set aside those factual findings as not being open to the Tribunal on the basis of the evidence before it.[37]Mr Kulkarni stated that the Tribunal's reasons were based on their findings in fact and case law but he did not agree with them because the former was a misinterpretation of the evidence and as for the latter, the cases had been applied in the wrong way. The sense of the cases had been missed.[38]He submitted that the definition of qualification was very broad and latitude had been afforded to it in the cases referred to by the Tribunal. The Tribunal ought to have accorded it similar latitude. It was not entirely clear where he thought that that latitude had arisen. It seemed to be related to his submission that wherever jurisdiction was found to exist the body in question was a public one - as in his case - and whenever it was found not to exist, the body in question was, unlike the First Respondent, a commercial one. His argument thus seemed to be that because the Respondent was public body, it was a qualifications body. Alternatively, the fact that it was a public body weighed heavily in favour of it being classed as a qualifications body.[39]Mr Kulkarni was concerned at what he saw as being a misquotation by the Tribunal in that part of the judgment where Ms Craik's submissions were recorded; the reference was to British Judo and the emphasis was on whether a person's career prospects were prejudiced whereas the relevant passage in the case referred to job prospects. He attributed that misquotation to the Tribunal and did not appear to appreciate that at that part of the judgment, the Tribunal was summarising the Respondents' submissions. Mr Kulkarni observed that there was nothing about prospects in the case of Paterson at paragraph 75, where the concept of engagement in a profession was being discussed. He referred to the case of Loughran which, unfortunately, he had not understood as being against his argument; he had thought that the decision was that the Northern Ireland Housing Executive was a qualifications body and that the decision was thus of assistance to him, possibly because the appeal of one of the applicants was successful but that was on other grounds, not the 'qualifications body' issue. Finally, under reference to paragraph 82 of the Tribunal's judgment, Mr Kulkarni stated that it was shown that he needed a trainee because he could not teach a trainee if he did not have one.[40]At no point in his submissions when presenting the appeal did Mr Kulkarni seek to challenge the Tribunal's decision that the First Respondent was not an employment service provider nor did he challenge the determination at paragraph 109 that the case against the Second Respondent also fell to be dismissed. I did give him an opportunity to reply to Mr Truscott at which he point he sought to introduce a submission regarding the employment service provider issue. Mr Truscott objected and I decided that it was too late for him to do so; anything he had to say about it would not be a response to Mr Truscott's submissions.[41]For the Respondents Mr Truscott submitted that the appeal should be dismissed. On the Tribunal's findings in fact, consultants did not need trainees to be perform their work and such advantage as may arise from having a trainee was minimal. The First Respondent was not a body which conferred qualifications in any sense. This was a jurisdiction matter and the Tribunal had not erred in its approach to interpretation of the statutory provisions or its considerations of the relevant authorities. In some respects, the Tribunal had gone further than was necessary in its judgment but that was simply by way of testing the arguments, for the benefit, it seemed of the Claimant and the outcome had still been that they could not find in his favour on this fundamental issue of jurisdiction. Discussion and Decision[42]I am satisfied that there is no merit in this appeal. The issue raised by Mr Kulkarni is whether or not the Tribunal erred in law in concluding that, on the facts, the First Respondent was not a qualifications body within the meaning of s. 53-54 of EA. On that issue, the Tribunal cannot be said to have erred. Whilst the discussion section of the judgment is somewhat discursive, it is clear that the key questions to which I refer in the "Relevant Law" section above are properly addressed and that the Tribunal reached the only answer that was open to them on the findings in fact. The overwhelming problem for Mr Kulkarni was that whatever the perceived advantages of having a trainee, on no view could it have been concluded that the First Respondent was a body which had the power to confer "authorisations, qualifications, recognitions, registrations, enrolments, approvals, or certifications" upon consultant surgeons or, indeed, anyone in the medical profession. There is no finding in fact that that or anything of that nature was part of their function which is not surprising given their statutory function which was simply to provide educational services. A comparison can perhaps be drawn with the distinction between schools and examination boards. The former provides educational services and could never be classed as a qualifications body. The latter, on the other hand, sets and marks examinations the outcome of which may be the awarding of the certification needed for engagement in a trade or profession e.g. a Scottish National Unit qualification required by a particular trade or a 'Higher' pass in English as required by the teaching profession.[43]Further, even if the First Respondent had had the power to confer a qualification within the s.54(3) list, the question of whether or not it facilitated a consultant surgeon's engagement in the profession was very much one of fact for the assessment of the Employment Tribunal. This Tribunal was not satisfied that such minimal advantages as were involved amounted to facilitation of engagement in the profession and that conclusion is not one with which this Tribunal, which has not heard the evidence, could interfere. Disposal[44]In these circumstances, I will pronounce an order dismissing the appeal. Note 1 See ‘Relevant Law’ section for the terms of these provisions, insofar as material.