Rovenska v General Medical Council

Where a professional qualifying body operates an allegedly discriminatory exemptions regime, each refusal of a fresh application made under that regime may constitute a separate act of discrimination under section 12(1)(b) of the Race Relations Act 1976. A complaint presented within three months of the latest refusal is therefore in time under section 68(1).

A tribunal should identify the substance of a discrimination complaint. It should avoid a technical, narrow or legalistic reading of the originating application. The court left open whether maintaining such a regime is itself an act extending over a period.

A doctor qualified in Czechoslovakia sought limited registration from the General Medical Council. She had twice failed the Professional and Linguistic Assessments Board test and repeatedly sought exemption under the Council's published rules. In January 1992 the Council rejected a further request which advanced a new ground, supplied a new reference and expressly sought an exemption.

The Industrial Tribunal held that her racial discrimination complaint was out of time and declined to extend time. The Employment Appeal Tribunal allowed her appeal, holding that she complained about the maintenance and operation of a continuing exemptions scheme.

The Council appealed. The central issue was whether the complaint, presented in March 1992, complied with the three-month limit under section 68 of the Race Relations Act 1976.

1. Appeal dismissed unanimously. Brooke LJ delivered the judgment, with which Roch and Nourse LJJ agreed. The Employment Appeal Tribunal was entitled to identify the substance of the doctor's complaint as concerning her inability to obtain an exemption from the qualifying test. Following the guidance in Sourgin v Haringey Health Authority [1992] ICR 650, an originating application should not be construed technically, narrowly or legalistically.

2. It was unnecessary to decide whether the Council's maintenance of its exemptions policy was a continuing act under section 68(7)(b) of the Race Relations Act 1976. Nor was it necessary to decide whether the expression “terms” in section 12(1)(a) included conditions which had to be satisfied before an authorisation or qualification would be granted.

3. If the Council's exemptions regime was inherently discriminatory, each occasion on which it refused to allow the doctor limited registration without first passing the qualifying test constituted an act of unlawful discrimination under section 12(1)(b). The court did not determine whether the regime was discriminatory on its merits.

4. The January 1992 correspondence was a fresh application rather than a complaint about the December 1991 refusal. It relied on the newly acquired master's degree, supplied an updated reference and expressly requested exemption. The Council's rejection was consequently a fresh refusal. Since the tribunal received the complaint within three months of that refusal, it was presented in time under section 68(1).

5. The court therefore did not need to determine whether it would have been just and equitable under section 68(6) to admit an otherwise late complaint. The parties agreed that section 41 did not provide the Council with a complete defence once the complaint was understood in substance, because the exemptions policy resulted from discretion rather than statutory necessity.

1. Court of Appeal: The General Medical Council's appeal was dismissed unanimously. The complaint was presented within three months of a fresh refusal and was therefore in time. Rovenska v General Medical Council [1996] EWCA Civ 1096.

2. Employment Appeal Tribunal: On 16 June 1994 it allowed the doctor's appeal. It treated the complaint as concerning the maintenance and operation of an exemptions scheme extending over the period of its operation.

3. Industrial Tribunal: On 1 December 1992 it held that the complaint was out of time and that it was not just and equitable to extend time.