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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Igboaka v. The Royal College of Pathologists [2009] UKEAT 0036_09_0312 (3 December 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0036_09_0312.html Cite as: [2009] UKEAT 0036_09_0312, [2009] UKEAT 36_9_312, [2010] Med LR 78 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR C CARR (of Counsel) Instructed by: Messrs Edward & Co Solicitors Maple House High Street Potters Bar Herts EN6 5BS |
For the Respondent | MR J DAVIES (of Counsel) Instructed by: Messrs Beachcroft LLP 100 Fetter Lane London EC4A 1BN |
SUMMARY
RACE DISCRIMINATION: Discrimination by other bodies
PRACTICE & PROCEDURE: Costs
Claims brought under ss12 and 13 Race Relations Act 1976. Properly struck out by Employment Tribunal under Rule 18(7)(b) as having no reasonable prospect of success.
Costs of aborted EAT hearing to be paid by Appellant who was wholly responsible for those wasted costs.
HIS HONOUR JUDGE PETER CLARK
Background
"38. 3 May 2007, Dr Peter Cowling, RCPath, FTPP decided to suspend my GMC Registration and erase my name from the Medical Register. These are considered unfair and disproportionate. An appeal is in place.
39. 13 August 2007, the Royal College of Pathologists RCPath said it would be inappropriate to investigate the complaints until the GMC and Tribunal processes have been completed, thus ignoring the fact that the Tribunal proceedings were started to protect my position."
Dr Peter Cowling was Director of Professional Standards at the College.
The Law
"(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 it is prepared to confer on him that authorisation or qualification; or
(b) by refusing, or deliberating omitting to grant, his application for it; or
(c) by withdrawing it from him or varying the terms on which he holds it."
"(1) It is unlawful, in the case of an individual seeking or undergoing training which would help to fit him for any employment, for any person who provides, or makes arrangements for the provision of, facilities for such training to discriminate against him –
(a) in the terms on which that person affords him access to any training course or other facilities concerned with such training; or
(b) by refusing or deliberately omitting to afford him such access; or
(c) by terminating his training; or
(d) by subjecting him to any detriment during the course of his training."
"(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description."
"(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, or, in relation to discrimination on grounds of race or ethnic or national origins, or harassment, or
(b) is by virtue of section 32 or 33 to be treated as having committed such an act… against the complainant, 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."
The Employment Tribunal Conclusions
"The Respondent cannot be liable for aiding an unlawful act under section 33 Race Relations Act in a situation where the person primarily responsible for the discrimination (in this case the GMC) cannot be liable because section 54(2) RRA applies. The Fitness To Practice Panel is an organ of the GMC and as such must not discriminate under section 12 RRA. Thus any claim must be brought against the GMC. Because there is an appeal procedure available to the Claimant under section 40(1)(a) of the Medical Act 1983, which he is pursuing, [I interpose successfully] he cannot make a claim against the GMC in the Employment Tribunal. It follows therefore that the Tribunal has no jurisdiction to hear a claim against an aider and abetter under section 33 RRA where there can be no claim against the person who is alleged to have done the unlawful act (see Khan v General Medical Council [1994] IRLR 646 CA). The provisions on aiding and abetting cannot establish jurisdiction where there is no jurisdiction to proceed against the person who has aided and abetted."
"I find that the Respondent is not a body concerned with provision of vocational training. Its function is to set the standards for training in pathology which includes involvement in the content and structure of training. It provides the infrastructure to support training in the pathology specialties but it does not provide the vocational training itself or make arrangements for its provision, whether in the form of training courses or placements which involve on the job training. Exceptionally, the College assisted the Claimant to find a training place in a hospital in Manchester. This was not a function of the College, nor its practice, and such assistance has never previously been provided."
The Appeal
(1) that Judge Palmer was wrong in law in holding that the College was not a person concerned with the provision of training for the purposes of section 13 RRA (ground 1).
(2) she was wrong to find that there had been no variation in the qualification bestowed on the Claimant by the College, that of Fellow, for the purposes of section 12 RRA (ground 2).
(3) that she was wrong to find that the acts complained of at paragraph 38 and 39 of the written answers were the acts of the GMC and not acts for which the College was principally liable (ground 3).
Ground 1
Ground 2
"If there were two separate bodies, one of which awarded qualifications and the other of which selected referees, it would no doubt be correct to say that the selecting body, by not inviting women to referee men's competitions, would not infringe section 13. But that is not the case here. The Association both awards the qualifications and selects the referee."
Ground 3