British Medical Association v Chaudhary

An indirectly discriminatory requirement is not an act extending over a period merely because it remains available for application to others. Where a regulatory authority rejects an individual application, time ordinarily runs from the last application of the requirement to that applicant.

Whether later proceedings constitute an abuse of process requires a broad, merits-based assessment of the public and private interests and all the circumstances. The mere availability of amendment in earlier proceedings does not compel a finding of abuse.

Under section 54(2) of the Race Relations Act 1976, a statutory appeal against a qualifying body’s refusal excludes employment tribunal jurisdiction. “Enactment” includes subordinate legislation. The statutory appellate body must itself apply the Act’s discrimination provisions.

This composite judgment determined appeals and permission applications arising from four sets of employment tribunal proceedings brought by a surgeon of Indian ethnic origin. His claims concerned alleged race discrimination in decisions affecting entry to the Specialist Registrar grade and Specialist Register, alleged inadequate support by the British Medical Association, and related procedural rulings.

The court considered: whether the BMA liability and remedies appeals should return to the Employment Appeal Tribunal; whether an application challenging refusal of Specialist Registrar status was out of time; whether later Manchester proceedings were an abuse of process; and whether section 54(2) of the Race Relations Act 1976 excluded employment tribunal jurisdiction over a qualifying body’s refusal where a statutory appeal lay to the Specialist Training Authority appeal panel.

1. BMA proceedings: The court gave effect to the parties’ agreed order. The BMA’s appeals on liability and remedies were remitted to the Employment Appeal Tribunal for a full hearing on all grounds, including perversity.
2. Time limit: Permission was granted on the continuing-act issue, but the appeal was dismissed. The alleged discriminatory condition was last applied to the applicant when his appeal against refusal of transition to the Specialist Registrar grade was determined. Its continued existence for possible application to other doctors did not constitute continuing application to him. The tribunal was entitled to find that a later advisory letter made no fresh decision. Its refusal to extend time on a just and equitable basis disclosed no error of legal principle and was not plainly wrong.
3. Abuse of process: Permission to appeal was refused. The institution of fresh Manchester proceedings concerning later events was not an abuse merely because amendment of the Southampton proceedings had been available. Following the broad, merits-based approach in Johnson v Gore-Wood [2001] 2 WLR 72, the court considered all public and private interests. Any risk of duplication, expense or inconsistent findings could have been addressed proportionately through stays, consolidation and ordinary case management.
4. Employment tribunal jurisdiction: Permission was granted, but the appeal was dismissed. Section 54(2) of the Race Relations Act 1976 unambiguously excluded tribunal jurisdiction over the complaint against the Specialist Training Authority. The refusal of registration was an act in respect of which a statutory appeal could be brought under the European Specialist Medical Qualifications Order 1995. “Enactment” included subordinate legislation.
5. The appeal panel could and had to determine material allegations of direct or indirect discrimination or victimisation when reconsidering registration. It was itself a qualifying body bound by the Race Relations Act 1976. A failure to give proper effect to that Act would render its process unlawful and amenable to judicial review.
6. The exclusion of employment tribunal jurisdiction did not offend the European Community principle of equal procedural treatment. The same appellate rules applied to all doctors irrespective of nationality. The court unanimously adopted Mummery LJ’s judgment.

1. Court of Appeal: The BMA matter was remitted by consent to the Employment Appeal Tribunal for a full hearing. Permission was granted but the appeals were dismissed on the continuing-act and Specialist Training Authority jurisdiction issues. Permission was refused in the abuse-of-process matters.
2. Employment Appeal Tribunal: In the BMA proceedings, it had prevented the perversity ground from proceeding to a full hearing. In the Southampton proceedings, it dismissed the appeal from the time-limit ruling. In the Manchester proceedings, it upheld the refusal to strike out for abuse of process after rehearing the application. In the Specialist Training Authority proceedings, it upheld the exclusion of employment tribunal jurisdiction under section 54(2) of the Race Relations Act 1976.
3. Employment tribunals: The BMA was found liable for indirect race discrimination and victimisation. The Southampton claims were held out of time, with no continuing act and no just and equitable extension. The Manchester tribunal refused to strike out later proceedings as an abuse of process. In separate proceedings concerning the Specialist Training Authority, it held that section 54(2) excluded its jurisdiction.