British Medical Association v Chaudhary

The Court of Appeal dealt with multiple related appeals arising from extensive employment tribunal litigation brought by Mr Chaudhary, including an appeal by the British Medical Association (BMA). In respect of the BMA appeal the court made a consent order remitting the BMA's appeal to the Employment Appeal Tribunal for a full hearing on the merits, allowing all grounds of appeal (including the previously excluded perversity ground) to proceed. The court considered whether it was appropriate to widen the scope of the BMA's appeal and, having reviewed the tribunal and appeal tribunal decisions, concluded that remittal by consent was an appropriate procedural step.

Key legal principles applied included: the scope of appellate case-management powers when parties agree a consent order; the proper limits of the employment appeal tribunal's preliminary restriction of arguable grounds; and the court's willingness to order production of discrete material (the chairman's notes) necessary for a fair rehearing. The court did not re-open or reverse primary factual findings of the employment tribunal but focused on whether the appeal tribunal erred in circumscribing the BMA's appeal at an interlocutory stage.

Background and parties: Mr Rajendra Chaudhary brought multiple employment tribunal claims (between 1997 and 2000) alleging direct and indirect race discrimination and victimisation under the Race Relations Act 1976. One claim was against the British Medical Association which, he alleged, had failed to provide adequate support in pursuing race discrimination complaints against professional and regulatory bodies. The Manchester employment tribunal found in Mr Chaudhary's favour on indirect race discrimination and victimisation against the BMA and awarded substantial damages following a remedies hearing.

Procedural posture: The BMA appealed to the Employment Appeal Tribunal, which at a preliminary hearing limited one ground of appeal (the perversity ground) as not reasonably arguable. The BMA sought permission to appeal that restriction to the Court of Appeal. The parties reached a draft consent order asking the Court of Appeal to allow the BMA's appeal against the limitation and to remit the matter to the Employment Appeal Tribunal for a full merits hearing on all grounds. The BMA also sought to challenge the remedies award.

Nature of relief sought: The BMA sought appellate intervention to permit full consideration of all grounds of its appeal (including the perversity ground) and an order remitting the case to the Employment Appeal Tribunal for a full hearing on the merits. Mr Chaudhary sought continuation of the tribunal findings and the remedies order made below.

Issues framed: (i) Whether the Employment Appeal Tribunal had correctly concluded that a perversity ground was not reasonably arguable and so should not proceed; (ii) whether, as a matter of procedure and justice, the Court of Appeal should permit the BMA to pursue all grounds and remit the matter to the Employment Appeal Tribunal for a full hearing; (iii) consequential directions including production of the chairman's notes and the convenient hearing of the BMA appeal on remedies together with liability.

Court's reasoning: The Court of Appeal reviewed the employment tribunal's and the EAT's reasoning and, having considered the submissions, concluded that it was appropriate to approve the parties' draft consent order. The court accepted that the question whether perversity was tenable was best determined by a full hearing in the EAT rather than by a preliminary limitation in circumstances where the issues were intertwined with the merits. The court therefore remitted the appeal to the Employment Appeal Tribunal for a full hearing on all grounds, directed production of the chairman's notes on discrete points, and indicated it would be convenient for the remedies appeal to be heard at the same time as liability. The court did not substitute its own findings on liability or remedies but gave effect to the parties' agreed procedural solution.

Appeal allowed by consent insofar as the court approved a draft consent order remitting the BMA's appeal to the Employment Appeal Tribunal for a full hearing on the merits including the perversity ground; the court concluded remittal and disclosure of discrete material (chairman's notes) were appropriate procedural remedies, without re-opening the primary factual findings of the tribunal.

Appeal from the Employment Appeal Tribunal (preliminary hearing of 30 April 2002 restricting grounds) and from the Employment Tribunal (Manchester) decision dated 24 September 2001 (finding against the BMA on indirect race discrimination and victimisation and awarding remedies). The Court of Appeal [2003] EWCA Civ 645 approved a consent order (signed 11 February 2003) remitting the matter to the Employment Appeal Tribunal for a full hearing on all grounds of appeal.