Hussain v King’s College Hospital NHS Trust

For the purposes of section 4(1)(a) of the Race Relations Act 1976, “arrangements” has a broad meaning. It includes an employer’s participation in an appointment scheme operated by another body, where the employer appoints representatives and makes representations contributing to the decision. Discriminatory acts by those representatives may be attributed to the employer. Section 4(1)(c) does not apply where the party lacks power to offer the employment. Where section 4 applies, section 13 is excluded by section 13(2). An employment tribunal may refuse a late amendment to plead section 13 where the claim was expressly disavowed earlier and the respondent prepared on that basis.

Mr Ahmed Hussain, a senior registrar, alleged that the Trust failed to consider him for one of three locum-for-training neurosurgery posts. He claimed direct race discrimination and victimisation. Under the postgraduate training scheme, appointments were made by the Postgraduate Dean after considering the views of a Specialist Training Committee on which the Trust was represented.

The Employment Tribunal held that section 4 did not apply. The Employment Appeal Tribunal reversed that conclusion and permitted an amendment to plead section 13. The Trust appealed. The central issues were whether the Trust made arrangements within section 4(1)(a), whether section 4(1)(c) could apply when it lacked power to make the appointment, and whether the amendment should have been allowed.

The appeal was allowed in part. The respondent could pursue the section 4 claim, but the amendment to plead section 13 was disallowed.

1. Section 4(1)(a). The Trust’s role was not excluded merely because the overall postgraduate training scheme had been created by the Secretary of State and the final appointment was made by the Postgraduate Dean. The Trust appointed representatives to the Specialist Training Committee, participated in its deliberations and made representations that the Dean would consider. Those were arrangements made by the prospective employer for determining who should be offered employment. The word “arrangements” was not confined to the overall scheme. Under Nagarajan v London Regional Transport [2000] 1 AC 501, discriminatory acts by employees operating the arrangements could be treated as acts of the employer.
2. Section 4(1)(c). A party cannot refuse, or deliberately omit, to offer employment when it lacks power to make the offer. The Trust therefore could not be liable under this limb because the appointment was within the Dean’s power. The section 4(1)(a) claim nevertheless remained available.
3. Section 13. By section 13(2), section 13 could not apply where the discrimination was rendered unlawful by section 4(1). The court therefore did not need to decide the substantive section 13 issue. Lord Justice Pill expressed the tentative view that a section 13 claim against the Trust might be arguable where the respondent was undergoing training, but expressed no favourable view on that possibility.
4. Amendment. The Employment Tribunal had a broad discretion and was entitled to refuse the amendment. It was entitled to attach substantial weight to the respondent’s express disavowal of reliance on section 13 at the pre-hearing discussion, the absence of any application to withdraw that disavowal before the substantive hearing, and the Trust’s preparation on that basis. The Employment Appeal Tribunal had erred in treating the Employment Tribunal as over-influenced by time limits and insufficiently influenced by the unchanged factual allegations.
5. Lord Justice Robert Walker and Sir Martin Nourse agreed with Lord Justice Pill. The respondent was awarded three quarters of his costs. Permission to appeal to the House of Lords was refused.

• Court of Appeal. Allowed the Trust’s appeal against permission to amend the claim to plead section 13, but dismissed the appeal against permission to pursue the section 4 claim.
• Employment Appeal Tribunal. Allowed the respondent’s appeal from the Employment Tribunal and held that he could pursue a section 4 claim. It also permitted an amendment to plead section 13.
• Employment Tribunal. Held that section 4 did not apply and had refused the proposed section 13 amendment.