Chaudhary v Specialist Training Authority Appeal Panel & Ors

Section 54(2) of the Race Relations Act 1976 excludes an employment tribunal complaint where the discriminatory act concerns a professional qualification and an appeal, or proceedings in the nature of an appeal, is available under an enactment. The relevant act is the original refusal or decision, not the subsequent appeal decision, even where the appeal panel is itself a qualifying body.

A complete reconsideration by an independent professional appeal panel, together with judicial review, can provide an effective remedy under Article 6. Differences in remedies and procedure from those available in an employment tribunal do not require a different construction under section 3 of the Human Rights Act 1998.

This was an appeal from the Employment Appeal Tribunal, which had dismissed an appeal from an Employment Tribunal decision striking out the appellant’s claims for want of jurisdiction. The appellant, a urologist of Indian ethnic origin, alleged direct and indirect racial discrimination and victimisation in the refusal by the Specialist Training Authority Appeal Panel to enter him on the Specialist Register.

The appeal concerned whether the Panel’s decision was a separate discriminatory act outside section 54(2) of the Race Relations Act 1976, whether the European Specialist Medical Qualifications Order 1995 constituted an enactment, and whether the statutory appeal procedure and judicial review satisfied Article 6 of the Convention.

Appeal dismissed. Pill LJ delivered the judgment, with which Keene LJ and Neuberger LJ agreed.

1. The court followed Khan v General Medical Council [1996] ICR 1032 and the earlier decision in Chaudhary v Royal College of Surgeons & Others [2003] ICR 1510. Section 54(2) of the Race Relations Act 1976 is unambiguous. The act in respect of which an appeal may be brought is the original refusal or decision under section 12, not the decision of the appeal body.
2. The distinction between review and reconsideration was immaterial. A procedure involving a complete reconsideration of the application was proceedings in the nature of an appeal. The statutory exclusion could not be defeated by the absence of a further appeal from the final appeal panel. A single statutory appeal, backed by judicial review, was contemplated.
3. The statutory procedure under the European Specialist Medical Qualifications Order 1995 was an effective remedy. The Appeal Panel was independent and impartial, gave a fair and public hearing, and was established by law. Judicial review provided an appropriate safeguard, including the possibility of examining whether the Panel had acted in a racially discriminatory manner. The availability of different remedies and procedures in an employment tribunal did not establish incompatibility with Article 6. The court relied on R (Alconbury Developments Ltd) v Secretary of State for the Environment [2003] 2 AC 295 and Wilson v First County Trust Ltd (No.2) [2004] 1 AC 816.
4. The court did not decide whether section 54(2) should be characterised as defining substantive rights or as imposing a procedural bar. It held that there was no breach of Article 6 even if the provision and the 1995 Order were treated as a potential procedural bar.

The appeal was dismissed. The appellant was ordered to pay the respondents’ costs, subject to the determination of the assister person’s liability under regulation 127. Leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division) — dismissed the appeal and ordered costs. [2005] EWCA Civ 282.
2. Employment Appeal Tribunal — dismissed the appellant’s appeal on 8 January 2004.
3. Employment Tribunal — unanimously struck out the claims, with the decision sent to the parties on 7 November 2003, holding that it had no jurisdiction.