Appeal No. UKEAT/0202/11/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 November 2011

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

DR S V VAIDYA	APPELLANT

THE GENERAL MEDICAL COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MS LAURA PRINCE
(of Counsel)
Bar Pro Bono Unit

	
For the Respondent	MR IVAN HARE
(of Counsel)
Instructed by:
General Medical Council 
Legal Services
3 Hardman Street
Manchester
M3 3AW

SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
RACE DISCRIMINATION
HARASSMENT

Consideration of ss.12(1A) and 27A Race Relations Act 1976.  Employment Judge correct in striking out Claimant’s complaint of harassment under s.3A RRA on particular facts of this case.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	This is the full hearing of an appeal by Dr Vaidya, the Claimant before the London Central Employment Tribunal, against the Judgment of Employment Judge Glennie, sitting alone at a Pre-Hearing Review, promulgated with Reasons on 12 October 2010, dismissing all of the Claimant’s claims raised in case number ET/220248010/10, commenced by a form ET1 presented on 17 May 2010.  I identify the particular claim of which I am concerned in this appeal, since it is one of many brought by Dr Vaidya against the Respondent, the General Medical Council (GMC).

2.	The appeal was initially considered and rejected under rule 3(7) on the paper sift by HHJ David Richardson.  At that stage, the grounds of appeal had been drafted by Dr Vaidya acting in person.  Dissatisfied with that outcome, Dr Vaidya exercised his right to an oral hearing under rule 3(10).  That application came before me on 6 May 2011.  On that occasion I heard submissions from Ms Prince of counsel, representing the Claimant under the ELAAS pro-bono scheme, and from Dr Vaidya himself.  Like Judge Richardson, I similarly rejected the Claimant’s grounds of appeal as raising no arguable point of law.

3.	However, at that Appellant only hearing, without representations from the Respondent, I permitted a narrow point of construction, raised by Ms Prince and encapsulated in amended grounds of appeal for which I gave permission, in relation to the Claimant’s complaint of racial harassment of s.12(1A) of the Race Relations Act 1976 (RRA) to proceed to this full hearing when the Respondent could be heard.

4.	My Judgment, given on 6 May, has been transcribed and should be read with this Judgment.  In particular, I refer to my summary of the relevant background (paragraphs 5 to 8) and of Employment Judge Glennie’s decision (paragraph 9), which need not be repeated here.

5.	To give the context for the point taken in this appeal, s.12 RRA headed “Qualifying Bodies”, which includes the GMC, provides as follows:

“12
(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 deliberately omitting to grant, his application for it; or
(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.”

6.	The case below proceeded on the basis that the exclusion of jurisdiction provided for s.54(2) RRA did not apply to claims of harassment, as opposed to claims brought under s.12(1).  The separate statutory tort of racial harassment, introduced by s.3A, was not expressly made the subject of the s.54(2) exclusion.  Out of interest, I note that the new Equality Act 2010 does apply the form of s.54(2) exclusion to the replacement provision for s.12(1A); see s.120(7) of the 2010 Act, read with s.53, particularly s.53(3)

7.	Whether that is any indication that the parliamentary draftsman inadvertently failed to deal with the insertion of s.12(1A) in s.54(2) of the RRA, debated in earlier cases such as Tariquez-Zaman v GMC (EAT 0517/06/DM), HHJ McMullen QC, referred to at paragraph 16 of the Judgment of Employment Judge Edge, promulgated on 21 August 2009 in Dr Vaidya’s earlier case against the GMC (ET/2203106/2006), is moot in the present case in view of the Respondent’s concession on the point below; see Employment Judge Glennie’s Reasons, paragraph 11.4.

8.	The point taken by Ms Prince on behalf of Dr Vaidya in this appeal is that the Employment Judge was wrong to limit the claims of harassment to those which fell within s.12(1)(a), (b) or (c).  On his reasoning, that excluded Dr Vaidya’s complaint of harassment by way of non-disclosure by the Respondent of three case files relating to other doctors, prior to disclosure being given on about 7 April 2010.

9.	On the judge’s construction of s.12(1A), only three claims of harassment, identified in paragraph (a) a to c of the amended grounds of appeal, were capable of falling within s.12(1)(a), and those claims were struck out as being out of time (paragraph 19); already determined by Employment Judge Edge (paragraph 20) and as having no reasonable prospect of success (paragraph 21).

10.	Before considering that argument and Mr Hare’s response it seemed to me, on reading counsel’s skeleton arguments, that Mr Hare raises a point which does not appear to have been dealt with below and it is this: that the Claimant was not “a person who holds or applies for such an authorisation or qualification” at any relevant time (that is, after Employment Judge Edge determined the Claimant’s harassment claim as at 21 August 2009) and is, therefore, not a protected person for the purposes of s.12(1A) RRA.

11.	Ms Prince had considered the point and was able to, and did, respond to it in oral argument.  She, properly in my view, did not take objection to Mr Hare advancing the point under what may be termed Kumchyk principles.  Mr Hare would have relied on the Court of Appeal’s approach in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719, had objection been taken.  I shall therefore deal with that point as part of the construction question.

12.	In addition to the Judgment of Employment Judge Glennie and Employment Judge Edge, I have been referred to two other Tribunal decisions emanating from the London Central Tribunal.  In the case of Dr G Depner v GMC (ET 2203331/2010), a case involving complaints by Dr Depner of race discrimination and harassment against the GMC, in which Dr Vaidya represented the Claimant and Mr Hare the Respondent, Employment Judge Dr Simon Auerbach, in a Judgment with Reasons promulgated on 26 November 2010, considered the point of construction now arising before me and rejected the construction contended for by Mr Hare and adopted by both Employment Judge Glennie and Employment Judge Edge (see his Reasons, paragraph 47 to 53).  Faced with the conflicting views of his brother judges, Employment Judge Sigsworth, in the case of Dr Swapenini v GMC (ET 2200392/2011), Judgment 27 April 2011, preferred the approach taken by Judges Edge and Glennie to that of Judge Auerbach (his Reasons, paragraph 11).

13.	Whilst the views expressed by each of those experienced Employment Judges are of interest, I am of course not bound to follow any of them.  On the contrary, it is for me to determine the question at this appellate level.  However, as Ms Prince points out, it is significant that there is a division of view at Employment Tribunal level which requires resolution.  Having considered the rival submissions of counsel and the four Tribunal decisions, including that of Judge Glennie presently under appeal, I can state my conclusions as follows.

14.	On the narrow construction point raised by Ms Prince, I agree with her and Judge Auerbach that s.12(1A) does not import the specific acts listed in s.12(1)(a) to (c) directly into subsection 1A.  However, that is not the end of the matter.

15.	S.12(1A) is made of up three constituent parts:
(i)	The potential harasser is the same as in s.12(1); “an authority […] particular profession or trade”.  In this case, that is the GMC as Mr Hare accepts.

(ii)	The protected person is one who holds or applies for the relevant authorisation or qualification.  Here, Dr Vaidya held the relevant authorisation to practice medicine in this country until his erasure from the Register of Practitioners by the FPP in June 2008.  His appeal against that decision was dismissed by Plender J in December 2008.  Under s.41(2) of the Medical Act 1983, he cannot apply to be restored to the register for a period of five years from the date of erasure, effectively December 2008.  I therefore agree with Mr Hare’s new point on appeal, that Dr Vaidya does not fall within s.12(1A) without more.  However, I also accept Ms Prince’s submission that, by virtue of s.27A(2) RRA, a claim of harassment may arise after the relationship between the Claimant and the GMC ended, as a result of the decision of Plender J, provided it is closely connected to that relationship.  That leads me to the third, and in this case, vital element in s.12(1A).

(iii) The act of harassment, to be unlawful, must be done in relation to an authorisation or qualification conferred by the GMC.

16.	The relevant authorisation conferred by the GMC, inclusion on the medical register, was effectively withdrawn in December 2008.  Looking at the particulars of complaint contained in the form ET1, I am unable to detect any alleged act of harassment which post-dates the Judgment of Employment Judge Edge in August 2009.  On 7 April 2010, the documents relating to other doctors, which the Claimant had been seeking on his case since 2004, were disclosed.  Doing what he asked cannot give rise to a complaint of harassment.  In her reply, Ms Prince, on the instructions of Dr Vaidya, supplied a page from the form ET1 which had, until then, been omitted from the bundle prepared for this hearing.  I have given it the page number 22A.  I should read the relevant passage drawn to my attention.

“Had GMC afforded me due access to these documents at the material time between 20.4.04 to 11.9.06, 18.6.2007, 31.3.2008, 27.6.2008 or 16.12.2008; I would have been in a position to compel GMC 
•	to accept that I ‘never had any case to answer’, and/or 
•	to strike out almost all of the 25 ‘expanded’ charges, and/or 
•	to quash its fitness to practice panel’s ‘first’ and ‘second’ decisions in their entirety and with costs.”

17.	It follows that, assuming in the Claimant’s favour non-disclosure of those documents could amount to an act of harassment as defined in s.3A RRA, the complaint is limited by the Claimant to various dates between 20 April 2004 and 16 December 2008.  No further failure is alleged prior to disclosure in April 2010.  Returning to s.12(1A), those are the acts of harassment in relation to the authorisation or qualification conferred on the Claimant by the GMC.  But that period pre-dates 21 August 2009 and those complaints have been determined by, or ought to have been brought before (applying the rule in Henderson v Henderson [1843] 3 Hare 100) Employment Judge Edge in August 2009 and, thus, were determined by him on 21 August that year and cannot now be resurrected.

18.	It therefore follows in my judgment that, applying the wording of s.12(1A) and s.27(A)(2), that there is no extant harassment claim, on the Claimant’s pleaded case, in relation to the authorisation conferred by, and later withdrawn by, the GMC nor one which arises out of (or is closely connected to) the relationship which existed between the parties.

19.	For these reasons, Employment Judge Glennie was right to strike out the harassment claim.  Accordingly this appeal fails and is dismissed.