British Medical Association v Chaudhary

The Court of Appeal allowed the BMA's appeal and set aside the employment tribunal's liability and remedies decisions. The tribunal's finding of indirect discrimination under section 1(1)(b) of the Race Relations Act 1976 was held to be perverse: the tribunal had not properly analysed whether Mr Chaudhary had a meritorious discrimination claim against the medical regulatory bodies and therefore could not infer that the BMA had applied a requirement or condition with a discriminatory effect. The tribunal's finding of victimisation under section 2 was also overturned as a legal error in light of authorities permitting an employer honestly and reasonably to take steps to preserve its position in threatened litigation. The court further held that, even if unintentional indirect discrimination had been made out, section 57(3) of the 1976 Act would have precluded an award of damages unless the respondent intended to treat the claimant less favourably on racial grounds.

Background and parties: The respondent, Mr Rajendra Chaudhary, an Asian doctor and BMA member, alleged that the British Medical Association (BMA) had failed to support his discrimination complaints against medical regulatory bodies involved in the reform of specialist medical training. Those complaints related to his unsuccessful attempts to gain transitional entry to the new specialist registrar grade and the specialist register.

Nature of the claim / relief sought: Mr Chaudhary sued the BMA in the employment tribunal for direct and indirect race discrimination under the Race Relations Act 1976 and for victimisation; the tribunal awarded substantial damages (approximately £814,877). The BMA appealed to the EAT (unsuccessfully) and then to the Court of Appeal.

Procedural posture: The appeal to the Court of Appeal followed dismissal by the Employment Appeal Tribunal on 24 March 2004. The case was heard alongside consideration of the related "Creed" proceedings (Chaudhary v Secretary of State for Health) in which the tribunal found no discrimination by the regulatory bodies; the Court of Appeal refused permission to appeal from that Creed decision.

Issues before the Court of Appeal: (i) Whether the ET's finding of indirect discrimination was perverse and unsupported by reasoned analysis of the evidence; (ii) whether the ET's finding of victimisation was legally correct; (iii) whether damages were recoverable for unintentional indirect discrimination in light of s57(3) RRA 1976 and EC law; (iv) time limits and remedies, including assessment of loss of a chance.

Court's reasoning and conclusions: The court held that the tribunal failed to analyse whether, on the available evidence and law, Mr Chaudhary had a supportable discrimination claim against the regulatory bodies; the tribunal therefore could not properly infer that the BMA had applied a discriminatory requirement or harboured a closed mind. On victimisation, the tribunal had not applied the correct legal principle established in West Yorkshire Police v Khan: an employer may, honestly and reasonably, take steps to preserve its position in threatened litigation without thereby committing victimisation. The court further observed that section 57(3) prevents awards of damages for unintentional indirect discrimination unless intention to treat less favourably on racial grounds is proved. The court allowed the BMA's appeal, set aside the tribunal's findings of indirect discrimination and victimisation and quashed the damages award.

The appeal is allowed. The Court of Appeal concluded that the employment tribunal's key factual findings supporting indirect discrimination were perverse because the tribunal failed to analyse whether the claimant had a meritorious discrimination case against the regulatory bodies; accordingly the inference that the BMA imposed a discriminatory requirement could not stand. The tribunal also erred in law in finding victimisation because an employer may honestly and reasonably take steps to preserve its position in threatened litigation. As a result the award of damages is set aside.

Appeal from Employment Tribunal (liability and remedies decisions). The Employment Appeal Tribunal dismissed the BMA's appeals on 24 March 2004; permission to appeal to the Court of Appeal was granted by the EAT and extended by the Court of Appeal. Related litigation (the "Creed" Manchester proceedings against the Secretary of State for Health) was considered contemporaneously; the Court of Appeal refused permission to appeal from the Creed decision and finality was reached on that litigation prior to the substantive hearing of this appeal.