British Medical Association v Chaudhary

An employment tribunal cannot infer that a body imposed a discriminatory requirement or condition without analysing the merits of the underlying claim and the evidence for the body’s non-discriminatory explanation. Where the evidence establishes that support was withheld because the claim lacked reasonable prospects of success, an inference that the body had a closed mind to claims against specified institutions is unsustainable.

A person does not victimise a claimant merely by taking an honestly protective step in response to threatened discrimination litigation. A decision taken to preserve its position in that litigation is not taken because of the protected allegation.

The respondent, an Asian doctor and BMA member, alleged that the BMA had failed to support his race-discrimination challenges to medical regulatory bodies concerning his progression through specialist training.

The Employment Tribunal dismissed direct discrimination but upheld indirect discrimination and victimisation. It awarded damages of £814,877.41. The Employment Appeal Tribunal dismissed the BMA’s appeal.

The BMA appealed, contending that the Tribunal’s inferred requirement or condition was perverse and that the victimisation finding misapplied the Race Relations Act 1976. Mr Chaudhary cross-appealed against dismissal of his direct-discrimination claim, contingently on the BMA succeeding.

1. Appeal allowed; cross-appeal dismissed. The Tribunal’s findings of indirect discrimination and victimisation, and its remedies decision, were set aside. The proceedings against the BMA were dismissed.

2. The Tribunal’s finding that the BMA would not support race-discrimination claims against designated medical regulatory bodies rested on perverse factual conclusions. It did not analyse the merits of the claims for which support was sought, the available evidence, or whether the BMA’s stated reason—that the claims lacked reasonable prospects—was valid and reasonable. Proper analysis showed that the BMA had sound grounds for concluding that the relevant decisions had been made under rules applying equally to all doctors. There was no evidence of relevant differential treatment or of a viable indirect-discrimination claim.

3. The cross-appeal could not succeed. It depended on the Tribunal’s inferred requirement or condition, which the court had held unsustainable. The Tribunal’s dismissal of direct discrimination therefore stood.

4. The victimisation finding was legally wrong. Following the solicitor’s threatened allegation against the BMA, its refusal to make a fresh support decision could be treated as a step to preserve its position in prospective litigation. Applying West Yorkshire Police v Khan, [2001] ICR 1065, as clarified by St Helens BC v Derbyshire, [2007] UKHL 16, that decision was not made by reason of the protected allegation and was not victimisation.

5. The court upheld the Tribunal’s conclusion that the claims were in time. Its further observations on indirect-discrimination comparison pools, damages under section 57(3), fresh evidence, and loss-of-a-chance assessment were expressly obiter.

• Court of Appeal (Civil Division): Allowed the BMA’s appeal, set aside the Employment Tribunal’s liability and remedies decisions, dismissed the proceedings, and dismissed Mr Chaudhary’s cross-appeal: [2007] EWCA Civ 788.
• Employment Appeal Tribunal: On 24 March 2004, dismissed the BMA’s appeals from the Employment Tribunal.
• Employment Tribunal: On 24 September 2001, dismissed direct discrimination but upheld indirect discrimination and victimisation. On 19 June 2002, awarded £814,877.41 inclusive of interest.