Depner v General Medical Council (Race Discrimination : Discrimination by other bodies) [2012] UKEAT 0457_11_1402

EAT
Depner v General Medical Council (Race Discrimination : Discrimination by other bodies)
[2012] UKEAT 0457_11_1402 · 2013-02-14
[1]Dr Depner appeals from the decision of an Employment Judge (‘EJ’) sent to the parties on 20 July 2011. Following a Pre-Hearing Review the EJ held that by reason of section 54(2) of the Race Relations Act 1976 (‘RRA’) the ET did not have jurisdiction to determine her complaints of direct and indirect discrimination and discrimination by way of victimisation made in Case No. 2205139/2010.[2]The EJ held that the ET had jurisdiction in respect of the claims of harassment brought by Dr Depner. The GMC did not dispute the ET’s jurisdiction over harassment claims. Those claims were heard with harassment claims brought by Dr Depner in Case No. 2203331/2010 in September 2011 and were dismissed by an ET. Dr Vaidya who represented Dr Depner said that the dismissal of the harassment claims is being appealed.[3]The EJ held that the ET had no jurisdiction to hear Dr Depner’s claims against individual respondents who are or were Trustees or Executive Members of the General Medical Council (‘GMC’). The GMC is the relevant qualifying body for the purposes of Dr Depner’s claims under the RRA sections 12(1), 12(1A) and 54. The parties to this appeal will be referred to as Dr Depner and the GMC. References below are to the judgment of the EJ unless otherwise indicated.[4]Dr Depner’s appeal was heard together with that of Dr Uddin as the appeals raised similar issues although the claims were brought under different discrimination acts, the RRA in the case of Dr Depner and the Equality Act 2010 (‘EA’) in the case of Dr Uddin. Dr Vaidya represented the Appellant and Mr Hare the GMC in both appeals. Their cases had been dealt with by different Employment Judges.[5]Dr Depner and Dr Uddin are doctors. Dr Depner is of German origin and Dr Uddin is of Bangladeshi origin. They both made complaints of race discrimination and harassment in the way in which complaints against them were dealt with by the GMC. They alleged that its Trustees and other individuals were also liable for such acts. In both cases the Employment Judges held that there was no jurisdiction to hear the claims of race discrimination and of victimisation made by Dr Depner and of race discrimination and harassment made by Dr Uddin.[6]Following a preliminary hearing before Langstaff J, only Ground 1 of Dr Depner’s Notice of Appeal was permitted to proceed to a full hearing. By Ground 1 it was contended that the EJ erred in ruling that the ET does not have jurisdiction to determine Dr Depner’s complaint of direct and indirect discrimination and victimisation and in striking them out. All other grounds of appeal were dismissed including Ground 2 in which it was contended that the EJ erred in holding that Members of the Executive, the Registrar and Trustees of the GMC were not proper respondents to Dr Depner’s complaints.[7]The issue to be determined in Dr Depner’s appeal is whether the Medical Act 1983 (‘MA’) or proceedings for judicial review provide “…an appeal or proceedings in the nature of an appeal…under an enactment” within the meaning of RRA section 54(2) in respect of the acts alleged by Dr Depner in her ET1 in Case No. 2205139/2010 to constitute race discrimination and victimisation contrary to the RRA. RRA section 54 provides:
“54. Jurisdiction of employment tribunals (1) A complaint by any person (“the complainant") that another person (“the respondent")— (a) has committed an act… against the complainant which is unlawful by virtue of Part II …may be presented to an employment tribunal. … (2) Subsection (1) 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.”
Disciplinary action and Employment Tribunal proceedings[8]Dr Depner is a medical practitioner. She is German. A complaint was made about her to the GMC in September 2006. The complaint was initially considered by the Interim Orders Panel (‘IOP’) and between 2007 and 2009 various measures were taken in respect of the complaint. In early 2010 Dr Depner was referred to the Fitness to Practice Panel (‘FPP’). On 6 July 2010 Dr Depner made various claims to the ET under Case No. 2203331/2010 against the GMC complaining of direct and indirect race discrimination and harassment under RRA. Those claims of discrimination and harassment were later summarised under letters (a) to (y) in paragraph 9 of the judgment of EJ Auerbach who conducted a pre-hearing review in that case.[9]In August 2010 the GMC’s FPP found Dr Depner’s fitness to practice impaired by both “poor performance” and “misconduct”. It suspended her registration for nine months under the MA section 35D and imposed an order for immediate suspension under the MA section 38(1).[10]The Chronology prepared for Dr Depner for the Employment Appeal Tribunal (‘EAT’) shows that on 17 September 2010 she appealed the FPP’s decisions under the MA sections 40(7) and 38(8). Neither that appeal nor the applications made by her for judicial review succeeded.[11]Following the pre-hearing review before him on 3 November 2010 in a judgment sent to the parties on 26 November 2010 of the claims in Case No. 2203331/2010, EJ Auerbach held that save for a complaint relating to the decision of the IOP on 27 November 2007 to impose restrictions on Dr Depner’s registration, none of the complaints set out in paragraph 9 of his judgment under letters (a) to (y) fell within the scope of section 12 of the RRA, the provision under which Dr Depner could bring complaints of discrimination against the GMC. Further, EJ Auerbach held that the ET did not have jurisdiction in respect of the complaint of the IOP’s action as RRA section 54(2) applied to it. An appeal or proceedings in the nature of an appeal could be brought under an enactment, the MA in relation to the act complained of. EJ Auerbach therefore dismissed all the complaints of direct and indirect discrimination which were before him. There was no or no successful appeal from the dismissal of the discrimination claims.[12]EJ Auerbach held that the ET had jurisdiction under RRA section 12(1A) to hear complaints of harassment, relating to the matters summarised in paragraph 9 of his judgment, at (a) to (y). RRA section 54(2) does not apply to complaints under section 12(1A) (harassment), but only to complaints under section 12(1) (discrimination). The EJ therefore held that the jurisdiction of the ET to hear Dr Depner’s harassment claims was not excluded by RRA section 54(2).[13]On 6 July 2011 Dr Depner issued ET Claim No. 2205139/2010 against the GMC and named individual Executives and Trustees. On 7 (or 9) February 2011 EJ Auerbach declined to include the individual respondents named in 2205139/2010 as respondents to the harassment claims in Case No. 2203331/2010. An appeal from this decision was dismissed on 23 June 2011 by Underhill P at a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993 (‘EAT Rules’) .[14]On 1 June 2011 following the hearing and decision which is the subject of this appeal, EJ Glennie conducted a Case Management discussion for the substantive hearing of cases 2203331/2010 and 2205139/2010. The hearing was to consider the only matters which had been held to be within the jurisdiction of the ET, those of harassment. The EJ noted that the allegations in Case No. 2203331/2010 were set out in paragraph 9 under letters (a) to (y) of the judgment of EJ Auerbach sent to the parties on 26 November 2011. The EJ considered that the additional issue arising from claim 2205139/2010 was reflected in the following addition to that list:
“(z) in August 2010 the GMC suspended Dr Depner’s registration for 9 months and imposed an immediate suspension.”
[15]The EJ recorded that EJ Auerbach had already adjudicated on the issues in Case No. 2203331/2010 summarised in paragraph 9(a) to (y) of his judgment. He had dismissed Dr Depner’s race discrimination and victimisation claims based on those allegations. There has been no or no successful appeal from EJ Auerbach’s judgment. The only factual allegation in the claims before the EJ in Case No 2205139/2010 was that summarised in (z). It is therefore that allegation which forms the basis for this appeal.[16]Dr Depner’s chronology shows that her claims of harassment under RRA were heard in September 2011 and dismissed by a judgment sent to the parties on 7 December 2011. On 17 January 2012 Dr Depner appealed to the EAT from the judgment of the ET dismissing the consolidated harassment claims. The Relevant Statutory Provisions[17]Race Relations Act 1976 :
“12. Qualifying bodies (1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person— … (c) by withdrawing it from him or varying the terms on which he holds it. (1A) It is unlawful for an authority or body to which subsection (1) applies, in relation to an authorisation or qualification conferred by it, to subject to harassment a person who holds or applies for such an authorisation or qualification. … 54. Jurisdiction of employment tribunals (1) A complaint by any person (“the complainant") that another person (“the respondent")— (a) has committed an act… against the complainant which is unlawful by virtue of Part II …may be presented to an employment tribunal. … (2) Subsection (1) 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.”
[18]Medical Act 1983 (as amended):
“35D. Functions of a Fitness to Practise Panel (1) Where an allegation against a person is referred under section 35C above to a Fitness to Practise Panel, subsections (2) and (3) below shall apply. (2) Where the Panel find that the person’s fitness to practise is impaired they may, if they think fit— … (b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; … … 38. Power to order immediate suspension etc. after a finding of impairment of fitness to practise. (1) On giving a direction for erasure or a direction for suspension under section 35D(2)… in respect of any person the Fitness to Practise Panel, if satisfied that to do so is necessary for the protection of members of the public or is otherwise in the public interest, or is in the best interests of that person, may order that his registration in the register shall be suspended forthwith in accordance with this section. … (3) Where, on the giving of a direction, an order under subsection (1) or (2) above is made in respect of a person, his registration in the register shall, subject to subsection (4) below, be suspended (that is to say, shall not have effect) or made conditional, as the case may be, from the time when the order is made until the time when— … (b) an appeal against it under section 40 below… is (otherwise than by the dismissal of the appeal) determined. … (8) The relevant court may terminate any suspension of a person’s registration in the register imposed under subsection (1) above… and the decision of the court on any application under this subsection shall be final. … (9) In this section “the relevant court” has the same meaning as in section 40(5) below. … 40. Appeals (1) The following decisions are appealable decisions for the purposes of this section, that is to say— (a) a decision of a Fitness to Practice Panel under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration; … … (4) A person in respect of whom an appealable decision falling within subsection (1) has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 35E(1) above… appeal against the decision to the relevant court. (5) In subsection (4)… above, “the relevant court”— … (c) in the case of any other person… means the High Court of Justice in England and Wales. … (7) On an appeal under this section from a Fitness to Practise Panel, the court may— (a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or (d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court, and may make such order as to costs… as it thinks fit. ”
The Judgment of the EJ[19]In the claim before the EJ, Dr Depner made complaints of direct discrimination, discrimination by way of victimisation and harassment all under the RRA. In paragraph 12 of his judgment the EJ noted that the complaint before him, Complaint No. 2205139/2010, the second claim “essentially adds to the matters narrated in the first [Complaint No. 2203331/2010], the suspension of Dr Depner”. The issue listed for determination at the pre-hearing review before him was:
“whether all of the claims in the second case apart from the claim of harassment should be dismissed on the basis that the Tribunal only potentially has jurisdiction to consider them under section 12(1) of the 1976 Act, but does not in fact have such jurisdiction because section 54(2) applies.”
[20]Since claims of direct and indirect discrimination and victimisation made in the complaint before him, 2205139/2010, and summarised in (z), were of the suspension of Dr Depner from practice, and the GMC was a qualifying body, the EJ held that they all fell within RRA section 12(1). There was no dispute that the claims of harassment in respect of the suspension of Dr Depner fell within the RRA section 12(1A). Section 54(2) applied to complaints under section 12(1) (discrimination) but not to those under section 12(1A) (harassment). Jurisdiction over the harassment claims was therefore not excluded by RRA section 54(2).[21]The EJ then considered whether RRA section 54(2) excluded from the right to bring a claim in the ET the claims of discrimination and victimisation which were before him.[22]In paragraph 17 the EJ recorded that Dr Vaidya contended on behalf of Dr Depner that there was no right of appeal under any enactment from:
“all of the investigatory and procedural decisions and acts that may precede a decision to suspend, or strike off, or conditions, or take no action, those being the sort of decisions that can be the subject of an appeal under the Medical Act.”
The EJ held:
“17. …However, it seemed to me that this submission involved difficulty with a proposition from which it appears to me that there really is no escape. If a particular act by or on behalf of the GMC is not within the three categories in section 12(1)(a) to (c) then the Tribunal does not have jurisdiction in respect of complaints about that act. However, if a particular act is within one or more of those three categories, then in each case there is a right of appeal under either section 38 or section 40 of the 1983 Act and/or the right to judicially review any decision so made. That in turn would mean that the apparent jurisdiction under section 12(1) would be ousted by section 54(2). If seemed to me that that is a situation from which the Claimant in this case really has no escape.”
In paragraph 18 the EJ held that:
“18. Dr Vaidya addressed me on the broad merits of the case and on the suitability of the Employment Tribunal for determining issues such as those arising in the present matter. Whatever the situation about the merits in this case, and whatever the merits or otherwise of the Employment Tribunals, those submissions cannot in my judgment give the Tribunal a jurisdiction that it does not have under the statute. Similarly, the submissions that Dr Vaidya made about the desirability of allowing the matters of complaint to be heard by the Tribunal would not give it a jurisdiction that it does not otherwise have.”
[23]The EJ further rejected an argument advanced by Dr Vaidya that the Court of Appeal in Khan v General Medical Council [1996] ICR 1032 held that an internal appeal within the GMC but not a statutory appeal to the courts was an appeal within the meaning of section 54(2) which would oust the jurisdiction of the ET. Further, the EJ held that the submission was inconsistent with the observation of HH Judge McMullen QC in Dr Tariquez-Zaman v GMC UKEAT/0292/06/DM, UKEAT/0517/06/DM . At paragraph 31 HH Judge McMullen QC held that if required to make a decision he would uphold the submission that section 54(2) applied because proceedings to challenge the withdrawal of Dr Tariquez-Zaman’s registration as a doctor or varying the terms on which he held it could be brought by judicial review.[24]The EJ held in paragraph 21 that Dr Depner’s claims of direct and indirect discrimination and discrimination by way of victimisation were to be struck out. The claims of harassment were to proceed to a full hearing. The Submissions of the Parties[25]Dr Vaidya for Dr Depner contended that her claim arose from actions preceding the decision of the FPP to suspend her. In the skeleton argument for Dr Depner it was stated:
“9. It is important to remember at the outset: (iii) that the claim is brought against the GMC staff (its charity – Trustees and agents since excluded) and not against the GMC panels, which must be sufficiently ‘independent’ to comply with Dr Depner’s Article 6(1) Human Rights and EU Community Law. (iv) that any claim against the GMC Panels that might properly fall within section 12(1) has not been made and hence irrelevant to Dr Depner’s present ET claim.”
Dr Vaidya submitted that as there was no statutory right of appeal from actions preceding the decision to suspend Dr Depner such claims were not precluded by section 54(2). Dr Vaidya contended in the skeleton argument that the EJ erred in equating the final decision of the Panels with the:
“…upstream intra-GMC activities of the GMC staff, from the moment of opening a case against a doctor to the stage of deciding to employ a particular Panel (10P/FPP). While the former may have recourse to statutory appeal applications under section 40(7), 38(8) or 41A(10) of the Medical Act 1983, the latter do not.”
[26]Dr Vaidya submitted that Dr Depner’s claims were of discrimination. Those claims were not extinguished by parallel litigation on other causes of action. The appeal provisions of the MA do not include discrimination claims.[27]Further, Dr Vaidya submitted that the EJ erred in holding that the MA or judicial review provided an appeal or proceedings in the nature of an appeal in respect of the acts complained of within the meaning of RRA section 54(2) so as to preclude the pursuit of a claim before an ET under RRA section 12(1). Dr Vaidya relied on the judgment of Richards J (as he then was) in R (Sudesh Madan) v General Medical Council [2001] EWHC 322 to contend that the court has limited powers of interference with the decisions of the GMC which are susceptible to statutory appeal under the MA or to judicial review. In paragraph 5 Richards J held that the approach of the court hearing an application under MA section 41A(10) is not materially different from the approach of the court on an application for judicial review:
“There, too, essential questions are whether irrelevant considerations have been taken into account or there has been a failure to take relevant considerations into account, and whether the decision ultimately reached is one that was reasonably open to the decision maker – a test close to, if not identical to, that of ‘manifestly wrong’.”
At paragraph 15 Richards J held:
“It is not for this court, as Mr Fortune rightly accepts, to substitute its own judgment on the merits.”
[28]The Court of Appeal in Khan v General Medical Council [1996] ICR 1032 held that proceedings under MA section 29 to appeal to a review board from a refusal by the GMC to register a medical practitioner fell within the procedures envisaged by RRA section 54(2). Dr Vaidya contended that Khan was to be distinguished from Dr Depner’s case as the provision there considered provided for an internal appeal.[29]Dr Vaidya relied on the judgment of Eady J in Dr Rakesh Aga v General Medical Council [2012] EWHC 782 (Admin) as a recent example of judicial observation that the scope of the courts’ scrutiny considering a challenge by judicial review to a decision of the GMC was limited. Dr Aga challenged the characterisation by the GMC of certain of his actions as ‘misconduct’. At paragraph 2 Eady J held:
“Whether to classify a doctor’s acts or omissions as misconduct is a matter left to the judgment of those on the relevant Fitness to Practice Panel in the light of their experience. On an application of this kind, the essential question is whether it was irrational to apply the term to the relevant conduct as either proved or admitted.”
[30]For these reasons Dr Vaidya contended that neither a statutory appeal available to Dr Depner under the MA nor judicial review were “an appeal, or proceedings in the nature of an appeal” by which an act complained of under RRA section 12(1) could be challenged. The EJ therefore erred in holding that Dr Depner was precluded by RRA section 54(2) from pursuing her complaints in the ET. Further, in respect of acts complained of which occurred before the decision to suspend was taken, Dr Depner had no statutory right of appeal.[31]Dr Vaidya sought to revive the argument that EJ Auerbach erred in refusing to join individual Respondents to Dr Depner’s claim. He contended that the effect of sections 54 and 65 of the Charities Acts 1993 and 2006 respectively had not been considered.[32]Finally, Dr Vaidya asked if the ET does not have jurisdiction to hear Dr Depner’s claims, which court has?[33]Mr Hare for the GMC submitted that the only ‘live’ claims of discrimination which are the subject of appeal are whether the GMC discriminated against Dr Depner on the grounds of her race by suspending her registration for nine months in August 2010 and imposing an order for immediate suspension. The reason for the order for immediate suspension under the MA section 38(1) is that the order for nine months suspension under the MA section 35D does not take effect until any appeal by the doctor is determined. The jurisdiction of an ET to hear complaints by Dr Depner about matters leading up to the decisions to suspend her registration and for immediate suspension were dealt with by EJ Auerbach who dismissed them save insofar as they were of harassment.[34]The right of a person who holds a relevant qualification to bring a complaint of race discrimination under RRA against a qualifying body is set out in section 12(1)(c). In any event the only acts by the GMC asserted by Dr Depner which fall within section 12(1)(c) of the RRA were the decisions of the FPP on 13 August 2010 to suspend her registration for nine months and the decision to impose an order for immediate suspension. This variation in the terms on which the doctor held her registration fell within RRA section 12(1)(c).[35]Mr Hare submitted that the EJ did not err in holding that the jurisdiction of the ET to adjudicate on complaints that the suspension decisions of the FPP constituted acts of race discrimination was excluded by RRA section 54(2). The MA sections 40 and 38(8) provided for an appeal or proceedings in the nature of an appeal from the ‘live’ complaints before EJ Glennie. The Court of Appeal in Khan held that a statutory provision which allowed the decisions of the GMC to be reversed by a differently constituted set of persons was the essence of what was meant by “proceedings in the nature of an appeal” in RRA section 54(2). Further, judicial review was held in Tariquez-Zaman v The General Medical Council (EAT/0517/06/DM by HHJ McMullen QC sitting alone) to be “proceedings in the nature of an appeal” for the purposes of RRA section 54(2). Accordingly the EJ did not err in holding that the ET did not have jurisdiction to determine Dr Depner’s claim.[36]As for the contention that the EJ erred in not permitting claims to proceed against named individual Trustees, Mr Hare submitted that this argument was disposed of by Sir Stephen Sedley in refusing on 22 August 2011 permission to Dr Vaidya to appeal the dismissal of his appeal by the Employment Appeal Tribunal from the refusal of an ET to add individual trustees and executive members as respondents to his race discrimination claim against the GMC. The only route to liability of those individuals would have been by asserting that under RRA section 33 they had knowingly aided the alleged acts of unlawful discrimination, the suspension from practice and order for immediate suspension. This had not been claimed by Dr Depner and there had been no application to amend her ET1 to raise this argument. Discussion[37]This appeal is from the judgment of the EJ sent to the parties on 20 July 2011. It is not an appeal from the judgment of EJ Auerbach on Dr Depner’s claim in Case No. 2203331/2010 sent to the parties on 26 November 2010 by which he dismissed the complaints of direct and indirect race discrimination made by Dr Depner summarised under letters (a) to (y) in paragraph 9 of his judgment. Those complaints which were of events before the suspension of Dr Depner’s registration were not for determination by the EJ nor are they the subject of this appeal.[38]The complaints before the EJ which he struck out were of direct discrimination, indirect discrimination and discrimination by way of victimisation by the GMC in suspending Dr Depner’s registration in August 2010 for nine months and imposing an immediate suspension under the MA. By Ground 1 of the Notice of Appeal Dr Depner challenged the decision of the EJ to strike out the claims of direct and indirect race discrimination and victimisation for “lack of jurisdiction”. At the preliminary hearing of this appeal on 7 March 2012, Langstaff P ordered the case to go to a full hearing on Ground 1 only. By order sealed on 8 March 2012 all other grounds of appeal were dismissed.[39]The right to bring complaints of race discrimination, victimisation and harassment is given and defined by statute. In Dr Depner’s case, the relevant statute was the RRA. Section 1 sets out the acts which in any circumstances relevant for the purposes of any provision of the RRA are to be regarded as direct or indirect discrimination. Section 2 makes similar provision for victimisation. Section 1 and 2 do not themselves give a right to claim. A claimant must bring their case under a provision which applies to the circumstances in respect of which they allege discrimination. The only provision potentially applicable to Dr Depner’s discrimination and victimisation claims which are the subject of this appeal, is RRA section 12(1)(c). In order to be within the scope of that provision it must be established that a qualifying body has discriminated against a person by withdrawing the qualification from him or varying the terms on which he holds it.[40]The EJ was therefore concerned with whether the suspension of Dr Depner’s registration as a medical practitioner fell within RRA section 12(1)(c). Rightly he held that it clearly did. Dr Depner’s complaints about acts of alleged race discrimination by the GMC and individuals before her suspension on 27 August 2010 were considered and dismissed by EJ Auerbach for want of jurisdiction. They could not be re-litigated. Even if they had been for determination by the EJ, which they were not, complaints of discrimination or victimisation by acts prior to the suspension of registration were not acts withdrawing or varying the terms on which Dr Depner held her registration. They therefore did not fall within the scope of RRA section 12(1)(c) and the ET would not have jurisdiction to adjudicate on them under the RRA. The RRA, unlike the EA in section 53(2)(c), does not include the right to bring a claim in respect of being subjected to “any other detriment”.[41]The acts complained of in the proceedings before the EJ which fell within the scope of section 12(1)(c) of the RRA were the suspension of registration in respect of which Dr Depner had and exercised a right of appeal in the Administrative Court under the MA section 40 and the order of immediate suspension in respect of which she also had and sought to exercise a right to challenge under the MA section 38(8).[42]The statutory appeal provided by the MA section 40 gives a court power to allow the appeal and quash the direction appealed against or remit the case to the GMC to dispose of the case in accordance with the directions of the court. A court hearing an appeal from an order of immediate suspension may under the. MA section 38(8) terminate such an order[43]In Khan the Court of Appeal considered whether a review under the MA section 29 now repealed was a proceeding “in nature of an appeal” within the meaning of RRA section 54(2). Section 29 provided an appeal from a decision of the GMC on application for registration. A Review Board heard such appeals. Pursuant to the MA section 29(4) the Review Board could determine that the original decision stand or direct that the decision be reversed. At page 1042E-F Hoffmann LJ (as he then was) held:
“The main question in this appeal is whether proceedings under section 29 of the Medical Act 1983 are ‘in the nature of an appeal’ within the meaning of section 54(2) of the Race Relations Act 1976. It is a short question of construction which, in my judgment, admits of an easy answer, namely, ‘Yes.’ Section 29 of the Act of 1983 allows the decision of the General Medical Council to be reversed by a differently constituted set of persons. For present purposes, I think that this is the essence of what is meant by ‘proceedings in the nature of an appeal.’”
In my judgment there is no basis upon which to distinguish Khan from the case under appeal. In Khan the Court of Appeal held that a review by a Review Board of a refusal of registration of an Overseas Qualified Practitioner fell within RRA section 54(2). On such a review under the now repealed section 29 of the MA, the Review Board could merely give its opinion to the President or members of the Council of the GMC whether a refusal of registration should stand. On appeal under the MA section 40 which applies to the decision of the FPP to suspend Dr Depner, the court has the power under section 40(7)(b) to quash the decision appealed from. On an appeal from an order for immediate suspension, the court has the power under section 38(8) to terminate such suspension. The powers of the court under the MA sections 38 and 40 are greater than that of the Review Board under the now repealed section 29. The distinction drawn by Dr Vaidya that that an internal right of appeal considered in Khan is an appeal or proceeding in the nature of an appeal within RRA section 54(2) but an appeal to a court cannot be accepted. The MA sections 38 and 40 give greater redress to an appellant than did section 29. If the internal review provided by section 29 was an appeal or proceeding in the nature of an appeal within RRA section 54(2) the greater rights on appeal provided by sections 38 and f0 must fall within that provision. Nor is there any basis to depart from Khan because of the passage of time. Khan remains good law and is binding on the EAT.[44]Dr Vaidya relied upon the judgment of Richards J (as he then was) in Sudesh Madan to contend that the court’s powers under the MA section 38(8) or section 40 are limited to interfering with an irrational decision. Proceedings under those provisions therefore do not fall within RRA section 54(2). I do not accept this contention. The EAT is an appellate court which can only set aside the decision of an ET if it has been reached by misdirection in law or is perverse or irrational. The EAT does not undertake a factual enquiry or its own assessment of the facts. It applies a similar test to that referred to by Richards J in paragraph 5 of Sudesh Madan of whether the decision of the ET was reasonably open to them. Proceedings in the EAT are unarguably appeals. So too are proceedings before a court under the MA sections 38 and 40.[45]The case of Dr Rakesh Aga relied upon by Dr Vaidya to support an argument that judicial review does not provide an appeal or proceedings in the nature of an appeal within the meaning of RRA section 54(2) in its outcome demonstrates the contrary. On judicial review the court quashed the decision challenged by Dr Aga.[46]Discrimination and victimisation complaints under RRA are of acts, omissions or treatment accorded to a complainant on grounds of their race, by applying a racially discriminatory provision criterion on practice or, in the case of victimisation because the complainant had brought proceedings or taken certain action in relation to the RRA. Discrimination or victimisation unrelated to such an act, omission or treatment does not give rise to a claim. It is not necessary to decide whether the jurisdiction of the ET is ousted by the right of Dr Depner to bring judicial review proceedings as the acts within RRA section 12(1) of which she complained are acts in respect of which an appeal may be brought under the MA.[47]In my judgment the EJ did not err in holding that Dr Depner’s claims of discrimination and victimisation which were before him and which fell within the scope of the RRA were excluded from the jurisdiction of the ET by operation of RRA section 54(2).[48]Dr Vaidya sought to revive Ground 2 of the Notice of Appeal: that the EJ erred in ruling that named individual members of the Executive, the Registrar and Trustees of the GMC were not proper respondents to Dr Depner’s claim. That ground of appeal had been considered and dismissed by Langstaff P at the preliminary hearing on 7 March 2012. It was not a ground of appeal before me. Conclusion[49]The EJ did not err in holding that the ET had no jurisdiction to hear Dr Depner’s discrimination and victimisation claims. The appeal is dismissed.