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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Pathak v Secretary of State for Health & Ors [2004] UKEAT 0036_03_0801 (8 January 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0036_03_0801.html Cite as: [2004] UKEAT 0036_03_0801, [2004] UKEAT 36_3_801

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APPEARANCES

UKEAT/0036/03

 

For the Appellant	MR G MAHMOOD (of Counsel) Instructed By: Messrs Birchfields Solicitors 142b Cheetham Hill Road Manchester M8 8PZ
UKEAT/0939/03 For the Appellant UKEAT/0036/03 & UKEAT/0939/03 for the Respondents	MR R CHAUDHARY THE APELLANT IN PERSON MR P MEAD (of Counsel) Instructed By: Messrs Carter Lemon Camerons Solicitors 11 Breams Buildings London EC4A 1DW


 


HIS HONOUR JUDGE D PUGSLEY:

1. With the agreement of the parties we have heard these two cases together as they both raise an identical issue namely the application of the provisions of Section 54(2) of the Race Relations Act. That provides that there is no right to bring an appeal to an employment tribunal on grounds of race discrimination from the decision of a qualifying body if there is a right of appeal by enactment. Although this is the common theme in the two cases there are separate issues in each case. In the case of Dr Pathak the appeal against the decision of the First Respondent case was not pursued. Because of pending litigation we have been requested that we give our decision by the beginning of January. Since we only concluded hearing the case on the 19^th of December that has imposed certain difficulties as we wished to reserve our decision on certain aspects of the case.
2. Section 12 (1) of the Race Relations Act makes it unlawful for a qualifying body to discriminate on grounds of race in the terms on which it is prepared to confer an authorisation or qualification. Section 54(2) states:-

"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."

3. We have not been referred to any ministerial statements as to the intentions of Parliament in relation to this section but it is not difficult to discern the intention of this section and the underlying policy that led to its enactment. In most contested discrimination cases a tribunal or court has to decide whether the reason for the discriminatory act is, as the applicant alleges, racial discrimination or, as the respondent alleges, an innocent non racial reason. This is pre-eminently a task in which an employment tribunal has both experience and expertise. In essence a tribunal is making a judgement as to credibility which is the hallmark of the judicial function.
4. In a case of alleged racial discrimination against a body conferring qualifications rather different considerations apply and Parliament decided that employment tribunals do not have either the expertise or the experience to decide whether a qualification is justifiably refused by an examining board. If an appeal procedure is enacted by Parliament to deal with the refusal of a qualification by a professional body then it clear why Parliament has determined that such a decision should not be open to review by an employment tribunal.
5. The background to this case lies in the decision by the European Community to grant mutual recognition of professional qualifications. This was implemented only after considerable discussion and in particular the British Government wished to negotiate a greater weight be given to the value of practical experience as a criterion.
6. Dr Pathak is of Asian origin. He qualified in medicine in 1976 obtaining his primary qualifications in India. He came to the United Kingdom in 1990. He has extensive experience in orthopaedics. The employment tribunal noted in paragraph 2 of its decision that much of his oral evidence was essentially a complaint about what he saw as unfair treatment of him in relation to his failure to be placed on the specialist register rather than being focussed on acts of racial discrimination, although it is pertinent to note that the tribunal expressed the view that they understood why he felt aggrieved. Despite his long experience he cannot obtain a post as a consultant unless he is on the specialist register. Dr Pathak has reached the highest grade he can reach at registrar level without being entered on the specialist register.
7. The position can best be summarised by quoting from the decision of the Employment Tribunal at Paragraph 6 onwards:

"The second respondent is a company limited by guarantee established pursuant to the European Specialist Medical Qualifications Order under an EC directive about the recognition of medical qualifications in member states. The result of that legislation coupled with other legislation was that with effect from 31^st December 1996 no one could be appointed to a consultant post in the National Health Service unless his or her name was included on the specialist register. The specialist register principally includes those with a certificate of Completion of Specialist Training (CCST) at the conclusion of specialist medical training or a qualification accepted as being equivalent under the EC directive. However, when these rules came into effect transitional arrangements were provided for a limited period to allow people to be entered on that specialist register even though they did not hold a CCST. The categories are in Article 12 of the 1995 Order and in November 1996 the applicant applied to the second respondent to be included on the register. It is clear that he could only qualify under the transitional category in Artcle 12(2)(c)(ii). At that time it read as follows:-

'A person falls within this paragraph if he has satisfied the STA (the second respondent) that he has qualifications awarded in the United Kingdom in such a speciality that are equivalent to a CCST in the speciality'.

7 It is clear from the judgment on a case dealing with this point R v Specialist Training Authority ex parte British Medical Association (1998) EWHC Admin 1047 that the second respondent realised that the criteria was too restrictive and it recommended the Secretary of State to seek modification of Article 12 in order to take the experience of an individual into account. As a result the regulations were amended in 1997 so that the relevant part of Article 12 now reads:-

'12.1 A person is entitled to have his name included in the specialist register if he applies to the Register of the GMC for the purpose before 1^st December 1998 and satisfies him then or in the case of a person who falls within paragraph 2(c) before 1^st December 2001 that he falls within paragraph 2.

(2) A person falls within this paragraph if he satisfied the STA that –

(ii) he has qualifications awarded in the United Kingdom in such a speciality which together with any experience which he has in the speciality in question and any further training which he has undertaken at the recommendation of the STA under paragraph (2B), give him a level of expertise equivalent to the level of expertise he might reasonably be expected to have attained if he has a CCST in that speciality.

(2A) The STA shall, before 1 November 1998, determine, in respect of each person who applied to it before 1 April 1998 for the purposes of sub-paragraph (c) of paragraph (2), whether or not it is satisfied as mentioned in that sub-paragraph.

(2B) Until 1 November 1998 the STA may be for the purposes of sub-paragraph (2) (c) (ii) recommend that a person undertake such further training in the medical speciality in question not exceeding twelve months in duration as the STA consider is required to give that person a level of expertise equivalent to the level of expertise he might reasonably be expected to have attained if he had a CCST in that speciality.

(2C) A person falls within this paragraph if the STA has made a recommendation under paragraph (2B) that he undertake further training for the purposes of sub-paragraph (2)(c)(ii).'

8 Because of the change to the legislation the applications were put on hold pending the changes which widen the number of people who would be able to go onto the register.

9 On 11 August 1998, the second respondent refused the applicant's application to go on the register. On 14 November 1998, the applicant applied for a review of that decision as set out in the regulations. Following that review, on 19 March 1999 the second respondent again refused the application. On 11 June 1999 the applicant gave notice of appeal under the regulations. Under the 1995 regulations the members of the second respondent comprised 19 individuals, 4 of whom are appointed by the Secretary of State and the rest from a list of the main professional medical bodies. Any appeal against the second respondent's decision is provided for in the 1995 Order and is to a panel of independent persons, which comprises a legally qualified chairman and two doctors, not from the applicant's own speciality. The appeal panel hearing was initially arranged for 10 October 2000, but was postponed and reconvened on 14 November 2000.

10 The applicant was represented by counsel at the appeal. His appeal was unsuccessful in that he was not permitted immediate entry to the specialist register, but the panel accepted his appeal to the extent that he would be permitted to be placed on the register provided that he did 12 months further training in trauma and passed the Inter-Collegiate Speciality examination. Because entry to the register under the transitional arrangements was to end on 1 December 2001 the applicant only had three or four days to arrange the training. With considerable effort by him and help from his colleagues at the Leicester General Hospital, where he worked, that was arranged and the applicant was able to satisfactorily complete that 12 months training within the time limit.

11 The applicant then had to set about taking the exam. He was initially told that he could not take the exam in February 2001 because the entry date had passed. He went to the solicitors who had represented him at the appeal panel, and they took up that issue on his behalf. As a result he was permitted to take the exam in February. Unfortunately, he did not pass all heads of the exam and therefore failed. The applicant took the exam again in May and in November, but each time failed some of the heads of the exam. The year from late November 2000 had been very busy for the applicant because he had to take up his new training in trauma, whilst still carrying out some of the functions under his old job. Moreover, he wanted to concentrate on the exams. ... He had two children doing GCSE's and A-levels. He did not consider whether he should bring an application to the Tribunal following the result of the appeal in November 2000 until after he failed the exam for the third time in November 2001. By that stage it was not possible for the applicant to take another examination before the deadline of 1 December 2001 under the transitional arrangements.

12 The applicant, however, did make application to sit the examination again in February 2002. That application was rejected by the third respondent by letter of 29 November 2001 on the basis that the examination regulations did not permit him to take the exam. The regulations include a number of preliminary requirements for candidates under regulation 3. The applicant did not qualify under 3(a) those undergoing training for the CCST or 3(b) those on an approved overseas training course. Regulation 3(c) permitted candidates under the transitional scheme to take the examination, but as that scheme ceased on 1 December 2001 so did the category 3(c). The position of the third respondent is that arrangements for the examination were expensive and there was no point in someone taking it where it can have no effect upon them. The applicant suggests that passing the exam would be of benefit to him in terms of his professional standing as a qualification recognised in other countries and for medico-legal work. He says that he is the only person who has not been permitted to take the exam.

13 We were shown statistics which indicate that a large proportion of the applicants under the transitional scheme were from the Indian subcontinent and that their applications were proportionately much more like to be unsuccessful than candidates with qualifications from other countries.

14 On behalf of the Secretary of State Mr Adamson pointed out that the Tribunal has only jurisdiction in confined areas and that the applicant's complaints could only be brought under section 12 of the Race Relations Act which related to the acts of bodies conferring a qualification. Only the second respondent was the body with authority to confer that qualification. The Secretary of State could not control it because he could only appoint 4 out of 19 members. The Secretary of State has the power of direction on administrative matters but cannot otherwise control the second respondent. He submitted that the applicant's case was misconceived if it was brought under section 32 of the Act alleging that the Secretary of State was somehow the principal and the second respondent an agent. The second respondent has a clear independence of action which is in conflict with any relationship of agency.

15 He also referred us to section 54 of the Act and the decision in Khan v General Medical Council [1994] IRLR 646, in which the Court of Appeal held that in a similar situation the Employment Tribunal was excluded from jurisdiction by that section, because there is a proceeding in the nature of an appeal. At that point Ms Chandran confirmed that she and Mr Stewart representing the second respondent, were involved in another case going to the Court of Appeal on the effect of section 54 in which arguments under the Human Rights Act will be raised. However, she accepted that as the law currently stands this Tribunal is bound by the decision in Khan, which shows that this Tribunal does not have jurisdiction to consider the complaint against the second respondent. Apparently other cases involving Ms Chandran and Mr Stewart have been stayed pending that decision. They both then suggested that we should not make a decision on that point, but stay it until the Court of Appeal decision. Mr Adamson submitted that we would continue to make a decision. He pointed out that, as at its highest the applicant's complaint against the Secretary of State was a derivative action from the complaint against the second respondent, as the complaint against the second respondent was bound to fail by reason of section 54, so would whatever complaint there could be against the Secretary of State.

16 Mr Stewart referred us to the 1995 Order and its amendment and in particular the case of R v Specialist Training Authority ex parte British Medical Association [1998] EWHC Admin 1047. He pointed out from that case that the second respondent was justified in imposing the requirement to pass the examination. Although the applicant pointed to delays by the second respondent, he himself had delayed firstly in asking for a review and then for the appeal having taken almost all of the three month period each time to do so. He submitted that the application was substantially out of time in respect of the second respondent. The applicant was legally represented at the time of the appeal decision and whilst he complains of severe pressure since then, he was able to carry on working and take other actions. The applicant must have known his chance of being on the specialist register would cease if he did not pass the exam before December 2001. The transitional route is now over and, therefore, the applicant can only get onto the register by the CCST route and he would have to undergo training to do so and then take the examination. He also made a number of submissions on the facts to suggest that the contentions of the applicant that the second respondent was deliberately delaying the application by the applicant and others of his background was an unsupportable allegation.

17 The third respondent is the body established by the Surgical Royal Colleges to conduct the examinations, which is to test the expertise of doctors entering consultant status. Once the 1 December 2001 deadline had passed, the third respondent acted lawfully in declining an application from the applicant, because by that date the examination had ceased by operation of the legislative deadline to be a qualification which facilitated engagement in a particular profession or trade.

18 Ms Chandran submitted that the 1995 Order does not give a deadline for the examination nor does it require the examination to be passed. The case of R v Specialist Training Authority ex parte British Medical Association [1998] EWHC Admin 1047 was an issue of unreasonable action not a race discrimination issue. She suggested there was no power to prohibit a doctor from taking the exam and that doctors in other specialities are able to take the equivalent exam. The exam would provide benefits to the applicant and would improve his vocational training and his qualifications for a medico legal career. Any issue of the late time of the application did not apply against the third respondent, because the application was clearly within three months of the refusal of the application to take the exam in February 2002. The Secretary of State is vicariously liable for actions of the second respondent, although she accepted not the third respondent. Other than that she was not able to suggest why the Secretary of State should be liable.

19 This tribunal only has power to deal with cases allocated to it by legislation. The applicant's complaints are brought under the Race Relations Act 1976. The applicant was not an employee of any of the respondents and it is clear that his complaint can only be brought under section 12 of that Act and any sections which are ancillary to it. Section 12 reads:-

'(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 –

(a) in the terms on which is it prepared to confer on him that authorisation or qualification; or

(b) by refusing, or deliberately omitting to grant, his application for it; or

(c) by withdrawing it from him or varying the terms on which he holds it.

(2) In this section –

(a) 'authorisation or qualification' includes recognition, registration, enrolment, approval and certification;

(b) 'confer' includes renew or extend.'

20 The liability of employers or principals is set out in section 32. We do not consider it is necessary to set out that section nor section 54 as all parties agree that the law as it currently stands under the decision in Khan v General Medical Council is such that we do not have jurisdiction to consider the applicant's complaint against the second respondent, because there is an appeal process within the legislation.

21 Although the applicant and the solicitor for the second and third respondent suggested that we should stay any decision on jurisdiction in relation to section 54, because of a further appeal to the Court of Appeal during February 2003, on consideration we have decided to make a decision on that point. We accept that if the Court of Appeal overturns the earlier decision our decision would have to be reconsidered either by way of appeal or in a review application to this Tribunal. However, any appeal by the applicant on this point would be unlikely to be heard before the Court of Appeal decision and we consider it is better that we make decisions on the various points that have been put before us as there are other provisions apart from those under section 54, which determine the case. Under the authority, as it now stands, we accept that we do not have jurisdiction to consider the applicant's complaint against the second respondent because of the right of appeal within the process. That means that the applicant's complaint against the first respondent must inevitably fail as that complaint derives from the complaint against the second respondent.

22 In relation to the complaints against the first respondent, the Secretary of State, they are in any event wholly misconceived. Given that ministers are responsible for appointing many members of public bodies, that does not of itself make the minister liable for the actions of that public body. We cannot see any basis on which it can be suggested that the second respondent was the agent of the Secretary of State in order to find liability under section 32 of the Act. The second respondent is set up by legislation and that legislation does not give the Secretary of State power to direct the second respondent in the way that deals with people in the applicant's position. Accordingly, apart from any arguments under section 54, we dismiss all complaints against the first respondent as being misconceived.

23 The second respondent is the body which confers authorisation to enter the specialist register, which is needed for engagement in a particular profession. It is, therefore, a qualifying body under section 12. On that basis we accept that if the applicant's evidence substantiates the complaint he makes against the second respondent, there is a valid complaint under the Act. However, we must then consider whether that complaint is in time. Section 68(1) of the Act sets out the period within which proceedings shall 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.'

24 The complaint by the applicant against the second respondent, on the authority of Khan v General Medical Council, is the refusal of the application to the second respondent, not the decision on the appeal. That refusal, after review, was given on 19 March 1999 and the applicant's application to this Tribunal was not received until 11 February 2002. Of course, in between the applicant appealed the decision and that appeal was not heard until 14 November 2000. The applicant was not responsible for anything other than a fraction of the delay between the original decision and the appeal. Nevertheless, it is right that we should take into account that period in considering the further delay after the appeal decision was given to the applicant in late November 2000, which is the latest date he can have a cause of action against the second respondent. The applicant did not take action at that time. The applicant accepts that he was concentrating on undergoing his years training and taking his exams. He was not at that stage contemplating proceedings to the Tribunal although he always knew of the transitional deadline of 1 December 2001. Those proceedings only came into his mind, when having failed the exams for the third time, his limit for entry onto the register expired, because of the statutory provisions. Although the applicant was clearly very busy during that year, he had solicitors available to him, who did successfully take up on his behalf the issue of taking the exam in February. Had he wanted to bring proceedings at that time, he could easily have instructed those solicitors or approached the BMA, as he did later, for assistance. The applicant was aware of the time limit of three months, which is the same time limit that had applied in his internal applications to the second respondent. We consider it would have been reasonable for the applicant to have brought a complaint against the second respondent within at the latest a month of his first exam failure in February 2001. His application was not made until a year later. We consider it would not be just and equitable to extend the time to permit the application so long after the event.

25 The complaint against the third respondent is that it refused to allow the applicant to take the exam in February 2002. It is clear that refusal was made at the end of November 2001 and the applicant's application on 11 February 2002 was within three months and, therefore, in time, whether or not he should have foreseen that. It seems to us that for the purposes of section 12 of the Act the third respondent, although it operates in conjunction with the second respondent, is itself an authority which confers a qualification, which is needed for or facilitates engagement in a particular profession. The examination is a required part of qualification for any doctor undergoing a normal training course, unless there is a qualification recognised from another EC country. Although that exam is not set out in the 1995 Order, in practice the second respondent did also require the exam to have been passed by transitional applicants before entry onto the register. The exam is, therefore, a qualification which at least facilitates engagement in the medical profession at a specialist level. Accordingly, if the applicant is able to show that that the third respondent has discriminated against him in refusing to allow him to take the exam, then the applicant has an arguable case.

26 The applicant's case against the third respondent is that the discrimination is indirect and, therefore, is under section 1(1)(b) of the Race Relations Act:-

'1(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –

(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.'

27 The applicant has not specified what requirement he relies on, with which he could not comply. The only one we can deduce that he could allege against the third respondent is the requirement to be on a recognised training course, because after 1 December 2001 the transitional scheme was finished and the applicant having been on it could comply. However, the applicant has not in his application or argument put to us given any consideration to the pool in that way. The applicant is looking at the pool of people who have undergone the transitional procedure, but they are not the people who have been denied entry into the exam. The applicant has not put his mind to the correct pool and raises no allegation that the proportion of persons in the applicant's racial group who are on the normal training course is considerably smaller than the proportion of persons not of that racial group who are on the training course. Nor is he prevented from undergoing such training.

28 Moreover, the respondent's reason for not permitting the applicant to take the exam is that there would be no point, because, as the applicant is beyond the cut off period, passing the exam would have no effect on his ability to enter the specialist register, which is the purpose of the exam. That is such an obvious justification that the applicant has no reasonable prospect of success in the face of that non racial justification. It is particularly so as the applicant, of course, also alleges that he is the only person who has been denied access to the exam. We are satisfied, therefore, that the complaint against the third respondent is also misconceived and should be dismissed.

29 In view of our decision we have not found it necessary to consider the pre-hearing review aspects of the complaint before us and make no decision on that point."

8. The re- amended notice of appeal raises four grounds of appeal (grounds 5 and 6 have been abandoned) which may be summarised as follows:-

1) As the Respondents had not raised a jurisdictional defence and as this hearing had not been convened for that purpose the Tribunal should not have deliberated and then determined this matter.

9. Quite simply we consider that this argument is totally misconceived. An employment tribunal has no inherent powers of its own; it is a creature of statute. There is an obligation on an employment tribunal to consider the question of jurisdiction in any event even if it had not been raised by the parties (see British Midland Airway Ltd v Lewis [1978] ICR 782). The Applicant's counsel was well versed in the issues of the case since she told the tribunal that she was counsel in a pending case in the Court of Appeal. She did argue that that it was appropriate to stay the hearing pending but this application was refused (paragraph 21 of the Employment Tribunal decision). There is nothing in the tribunal decision to suggest that she was in difficulties by this point being taken; or that that she could not deal with the case properly because the matter had not been formally pleaded. We consider that as a matter of common sense such matters should be pleaded and if the issue was not raised there may well be cases in which a tribunal would as a matter of fairness allow an applicant who was not represented, or represented by a non professionally qualified advocate, an adjournment to consider the matters. We can see no unfairness in this case at all. We dismiss this aspect of the appeal.
10. The second ground of appeal is that the employment tribunal erred in law in finding that it had no jurisdiction by virtue of Section 54(2) against the Second Respondent's appeal panel. It erred in law in failing to consider whether the structure of the Appeal Tribunal of the Second Respondents was compliant with the Human Rights Act 1998, specifically Article 6(1) and whether it had jurisdiction to entertain the Appellant's complaints regarding the Appeal Tribunal in the light of the fact the Appeal Panel's decision was reached after the Human Rights Act 1998 came into force. The grounds of Mr Chaudhary's appeal are in effect in identical terms. There are distinctions in the case. Dr Pathak did not argue the Human Rights issue either before the appeal panel or the employment tribunal and there is an issue as to whether it is open to him to argue the issue before us. Mr Chaudhary has sued the Appeal Panel itself. In view of the extreme pressure we are under to promulgate this judgment we hope we shall be forgiven if we follow the same procedure which Mr Chaudhary adopted in addressing us which is not to set out the factual history of his case but to adopt the factual background (without actually reiterating it in our judgment) which is contained in the judgment of Mummery L.J. in his case in the Court of Appeal.

The Section 54(2) issue.

11. It has been argued that the Employment's Tribunal's jurisdiction is not ousted by Section 54(2) in respect of the Appeal Panel's decision because there is no procedure for an appeal against that decision. We have heard extensive argument from both Appellants on this issue. Like many issues which can be stated in simple and stark terms it has an immediate appeal. Mr Chaudhary reminded us in his submissions that one member of this tribunal had queried what would be the remedy if a member of the appeal panel had used racially abusive language. It cannot be right Mr Chaudhary states for an Appeal Panel to act in a way that is racially discriminatory and enjoy immunity from an action in an employment tribunal. Yet the attractiveness of an argument can wilt on further consideration.
12. If there was no authority on the point we would regard the meaning of Section 54(2) as straightforward. Section 12 of the Race Relations Act does not provide an Applicant with a cause of action against the appeal panel but only against the original decision. We cannot see how the Section could be construed in any other way. The fact that Mr Chaudhary has sued the Appeals Panel is of no significance: the only matter that is within the employment tribunal's jurisdiction is the original decision. In the light of the Court of Appeal decisions in Khan and Chaudhary we consider that this must be taken as settled law. In the words of Mummery L.J. in Chaudhary at paragraph 108:

"On a purposive approach the "act" in Section 54(2) of which complaint is made under Section 12 is, in this case, that of the STA in refusing Mr Chaudhary's application for registration: it is not the act of the appeal tribunal in rejecting the appeal against which there is no appeal. As Hoffmann LJ said in Khan (at paragraph 35):

'Section 54(2) distinguishes between an act under s 12(1) in respect of which complaint is made, and an appeal in respect of that act. In my judgement, it follows that for these purposes the appeal cannot itself be the act in respect of which complain is made'."

13. Attempts to distinguish the facts of this case from those of these two leading cases are of no avail: in our view the issue of principle is clear. We would dismiss the appeal on this ground.

Dr Pathak's argument on Human Rights.

14. The short answer is that this point was never argued before the appeal panel, although mentioned in a skeleton argument before, it was not pursued and it was accepted that the appeal hearing had been fair (see Bundle at 96). Further, although the human rights argument was mentioned in the originating application again the issue was not pursued at the employment tribunal. We accept as a matter of principle the Respondent's contention that the Respondent cannot pursue arguments that were not pursued before the original appeal panel or before the employment tribunal(see Jones v The Governing Body of Burdett Coutts School [1998] IRLR 521) Of course there is a residual category of cases in which an Employment Appeal Tribunal would intervene if, for example, through an oversight a tribunal had made a finding of unfair dismissal when it was obvious that it had been overlooked that the applicant did not have the requisite continuity of service. We do not consider that this case comes within that category. However in deference to the arguments before us and as we have to consider the matter in Mr Chaudhary's case we have decided that it is appropriate as a matter of caution in the event we are wrong to reach a decision on this matter in Dr Pathak's case.

The Human Rights Act

15. On this issue we have not only had the advantage of hearing Mr Mahmood on behalf of Dr Pathak but also of hearing Mr Chaudhary. We hope that without appearing patronising we can say that he has addressed us with great skill. Section 3 requires primary legislation to be read and given effect in a way which is compatible with the Convention Rights. Section 6 declares that it is unlawful for a public authority to act in a way which is incompatible with a Convention Right - subject to the caveats at 6(2). Article 6 ensures that there should be a right of access to an impartial and independent tribunal.
16. The implicit premise behind all the arguments which the Appellants have put to us is that it is fundamentally unfair that a litigant should be denied access to an employment tribunal to determine an issue of race discrimination. As we sit as a tribunal we do not apologise for stating what we consider to be the crucial issue in what may be regarded by the purist as simplistic language. Since the Race Relations Act was enacted a whole body of case law has recognised the difficulties which an applicant has in proving discrimination on the grounds of race. Employment tribunals have developed experience and expertise in detecting whether there is a pattern of discrimination and have been prepared to admit statistical evidence as being indicative of discrimination. Before us it has been argued that the Human Rights Act is offended by Section 54(2) which effectively ousts the jurisdiction of the employment tribunal to examine the issue of racial discrimination. Effectively it is said that the appeal body has neither the expertise or experience to enquire into the issue of racial discrimination. This is an argument with which we have some sympathy. The questionnaire procedure and the presence of industrial members who have practical as well as tribunal experience is a considerable advantage for a tribunal which is required to deal with cases of racial discrimination. Whilst it is true that judicial review does provide a remedy, it is a forum which has certain disadvantages in procedure and the remedies it can provide and is subject to the same objections namely that it does not have the experience or expertise of an Employment Tribunal.
17. At Paragraph 38 of its decision the tribunal set out the allegations made by the Applicant:

"a) The applicant would be deprived of the right of access to an impartial and independent Tribunal capable of giving an effective remedy to a victim of race discrimination.

b) Judicial review is an inadequate remedy in the context of claims of discrimination generally and in particular in the subjective circumstances of the present case.

c) The Appeal Panel was not 'established by law' as its basic jurisdiction and the formal framework were not laid down by primary legislation.

d) The Appeal Panel is not 'independent' by reason of the basis upon which the Chairman and members of the panel are appointed, remunerated and contractually committed.

e) There is no legitimate aim or proportionately based justification for excluding the applicant's rights of access to an Employment Tribunal, particularly in a situation where the Appeal Panel showed itself reluctant to investigate and determine an allegation of race discrimination.

f) The applicant would be denied proper procedural avenues which would otherwise be open to him (including for example the questionnaire procedure) was required to pay a high fee for determination of his appeal and would not have available to him the extensive remedies within the power of the Employment Tribunal if he was successful."

18. The tribunal at paragraph 43 rejected the claim of incompatibility by concluding that the restrict of the Applicant's remedy to judicial review whilst arguably not the most complete way of dealing with discrimination complaints, defined the nature and extent of his substantive right as opposed to amounting to a procedural bar to an existing right.
19. In Chaudhary at paragraph 115 Mummery L.J pointed out that it was unnecessary for that Court to reach detailed submissions that the exclusion of the jurisdiction of the employment tribunal is incompatible with article 6(1) but he summarised the various submissions in a way in which we have found most helpful.

Conclusions:

20. We have not been persuaded by any of the arguments which have been put to us that Section 54(2) is incompatible with the Human Rights Act. In particular we note that for the Applicant to succeed he needs to show that a lack of independent and impartial tribunal was a sufficiently serious breach of duty such as to fulfil the common law test of bias: see Lawal's 2003 IRLR 538 case. Applying the test set out by Kirby J in Johnson v Johnson 200CLR 488, 509 at Paragraph 53 and approved in Lawal we do not consider that a "reasonable member of the public (who) is neither complacent nor unduly sensitive or suspicious" would regard the Appeal Panel as flawed by being neither independent or impartial.
21. Secondly we accept that the drawing of the boundaries of the jurisdiction was a determination by the legislature of substantive rights and not a procedural bar (see Matthews v Ministry of Defence [2003] AC 1163. The exclusion of the jurisdiction employment tribunal was a specific decision of Parliament. In the case of qualifying bodies where there is a statutory appeal body Parliament has determined that this is the forum in which the right not to be discriminated against on grounds of race can be asserted.
22. But even if we were wrong about all these matters we consider that the availability of judicial review is fatal to each Appellant's case. In Alconbury [2001] 2WLR 1389 and Begum v Tower Hamlets LBC 2003 2 WLR 388 this issue was extensively explored. There is a way of challenging the Appeal panel's tribunal. The jurisdiction of the employment tribunal may be ousted but not of the High Court by means of judicial review. In any event we do not consider that we can construe Section 12 in such a purposive way as to apply Section 3 of the Human Rights Act. We hope that the fact that we are sympathetic to the arguments that employment tribunals have their own expertise is more than tribal loyalty. Yet we can envisage powerful objections if an employment tribunal took on the task of evaluating the role of a qualifying body where there was a statutory appeal body. What would be the remedy that would be appropriate?
23. Public confidence in professional qualifications would be critically undermined if the public perception was that a qualification could be conferred not by a professional body but by order of the employment tribunal. We bear in mind that Section 54 deals with a body granting qualifications. Whilst it is no doubt that there may be a subjective element in deciding whether a qualification is granted the position is much more objective than a job interview and the sort of highly subjective reasons ("we did not think he or she would fit in" – see North West Thames Authority [1988] ICR 813) are not possible in the context of evaluating professional competence. Balancing the various priorities we consider a specialist appeal panel, with the right to judicial review, is compliant with the Human Rights Act.

Ground 3 in Dr Pathak's case:

24. This is stated in broad terms that the employment tribunal erred in law in the application of Section 68 of the Race Relations Act. Before us this has been amplified to suggest that the tribunal failed to consider when the claim crystallised. What is argued is that the claim was within time because the appeal panel pronounced its decision in November 2000; the Appellant suffered detriment in November 2001 when he failed the requisite examination and was denied any further attempts. It is submitted that the claim was within time; that it was a continuing act of discrimination not to recognise the appellant's qualifications and that in any event the tribunal were wrong in not exercising their discretion to allow the action to proceed.
25. As we consider that Dr Pathak's appeal is dismissed on other grounds we do not intend to deal at length with the issues raised. Parliament has fixed a limitation period of three months. This is markedly less time than the limitation periods which apply in other areas of civil litigation. It is in stark contrast to the criminal jurisdiction in which there is no period of limitation subject only to the court's inherent power to order an action be stayed as an abuse of process. Whilst cases such as British Coal Corporation v Keeble [1997] IRLR 336 EAT have tended to suggest that an employment tribunal should consider matters listed in Section 33 of the Limitation Act of 1980 such Court of Appeal cases as London Borough of Southwark v Afolabi [2003] IRLR 220 and Robertson v Bexley Community Centre [2003] IRLR 434 have deprecated the suggestion that the guidance given by British Coal should be elevated to a legal requirement and emphasised the dangers of an appellate tribunal seeking to intervene in matters which are essentially within the discretion of the original tribunal.
26. In paragraph 24 of the original decision the Tribunal found that the appeals process was concluded by late November 2000 when the Appeal decision was given to the Applicant which was the latest date the Applicant could have a cause of action against the Second Respondent. The Tribunal found that it would have been reasonable for the Applicant to have brought a claim against the Second Respondent within one month of the first failure to pass the examination in February 2001 but that the application was not made until a year later. Whilst we accept that certain criticisms can be made of the drafting of this part of the decision on this point we do not consider that it is appropriate to fine comb a decision for misdirections of law when it clear from the total picture of the decision what findings of fact were made and what was the overarching direction of law the Tribunal gave itself. We consider that the issue of the crystallisation of the cause of the action has been definitively defined by Mr Justice Mummery (P) in Mensah v The Royal College of Midwives EAT/124/94 at page 11 G-H when he held:

"An act occurs when it was done, not when you acquire knowledge of the means of proving that the act was done was discriminatory. Knowledge is a factor relevant to the discretion to extend time. It is not a precondition of the commission of an act which is relied upon as an act of discrimination."

27. In Chaudhary v The Senate of the Royal College of Surgeons of Great Britain and Ireland and others EAT/975/99 the authorities were exhaustively considered in the judgement of Miss Recorder Elizabeth Slade Q.C. and we consider there is no merit in rehearsing the matters yet again.
28. Nor can we accept the Appellant's argument that discrimination was a continuing act of a policy of failing to recognise the Appellant's qualifications. As Mummery L.J observed in Chaudhary at Paragraph 66:

"Cases such as Rovenska and the instant case, in which applications are made for registration by regulatory authorities and are rejected, are distinguishable from the cases in which an employer continuously applies a requirement or condition in the form of a policy, scheme or practice operated by him in respect of his employees throughout their employment : see Barclays Bank PLC v Kapur 1991 ICR 208: Cast v Croydon College 1998 ICR 500; Owusu v London Fire and Civil Defence Authority 1995 IRLR 574."

29. For the reasons we have already given we do not consider that there is any basis upon which we could find there was any error in the way in which the tribunal exercised its discretion.

Ground 4 in Dr Pathak's case

30. This ground is that the Employment Tribunal misdirected itself in law in refusing the Applicant's request to take the exam once the December 2001 deadline had passed. Further the Respondent misdirected itself in law in holding that the Third Respondent acted lawfully in refusing the Appellant's request to take the exam once the December deadline had passed. What has been argued before us is that this qualification is recognised not only in the UK but also in Europe and it would assist the Appellant's career prospects.
31. At paragraph 28 (set out above) of their decision the Tribunal give their reasoning for their decision which we consider is wholly justified; the deadline had expired under the statutory instrument and there was no discrimination nor any detriment in not allowing the applicant to sit an exam which by then would not and could not give him entry on to the specialist register, which is the purpose of the exam.

Summary

32. We dismiss all these appeals. In Dr Pathak's case we would not have allowed him to raise the Human Rights argument but have considered the arguments raised out of caution and because we were required to do so in any event.