Chaudhary v Secretary of State for Health

An appellate court should not interfere with an employment tribunal’s case-management decision unless it involved an error of legal principle or was plainly wrong. In a direct discrimination claim, the alleged discriminator’s own treatment of the claimant and the proper comparator must be examined; decisions made by a different decision-maker in another region do not establish less favourable treatment by the alleged discriminator. The burden of proof shifts only after facts establish a prima facie case of discrimination. For indirect discrimination, the claimant must establish disparate impact and detriment; a tribunal may consider justification in the alternative even where disparate impact is not established. A fresh decision on the merits, made after new material is supplied, may constitute a new act for limitation purposes.

Mr Rajendra Chaudhary appealed from two decisions of the Employment Tribunal in Manchester, which dismissed his claims that the Secretary of State for Health was vicariously liable for direct and indirect race discrimination and victimisation by Dr Hugh Platt. The Employment Appeal Tribunal, presided over by HHJ Peter Clark, dismissed his appeals on 4 October 2005.

The proposed appeal challenged preliminary case-management rulings on additional comparators and the pleaded racial group, together with findings on comparators, burden of proof, the interpretation of the Orange Guide, detriment, disparate impact, justification and victimisation. The court also considered, but did not permit a cross-appeal on, whether the claims were out of time.

1. Permission refused. The proposed appeal had no real prospect of success. The cross-appeal on time limits was academic, and permission for it would also have been refused.
2. An employment tribunal’s refusal to permit an amendment is a discretionary case-management decision. The Court of Appeal will intervene only for an error of legal principle or where the decision is plainly wrong. It was open to the tribunal to hold the claimant to his pleaded racial group, since no application to amend that case had been made.
3. For direct discrimination, the relevant comparison was between the treatment by Dr Platt of the claimant and the treatment he would have given to a hypothetical comparator in the Wessex area. Decisions by Professor Houston and Mr George in Manchester did not establish less favourable treatment by Dr Platt. The tribunal was therefore entitled to find no prima facie case.
4. The two-stage burden of proof under section 54A(2) of the 1976 Act operates only after facts are proved from which discrimination could be inferred. The tribunal was entitled to find that the first stage had not been crossed. The burden therefore did not pass to the Secretary of State.
5. The tribunal was entitled to construe paragraph 8 of section 2, Part One of the Orange Guide in the context of the Guide as a whole and the relevant factual matrix. It could conclude that the applicable registrar post required educational approval recognised by the postgraduate dean, which in urology meant SAC approval for higher specialist training. It was also entitled to find that the claimant did not meet other transition requirements, including the activity requirements in paragraph 8(b) and (c), and therefore suffered no detriment.
6. The tribunal’s alternative conclusion that any disparate impact was justified disclosed no error of law. Eligibility for automatic transition was not an absolute bar to entry to the Specialist Registrar grade, because entry by open competition remained available. It was also open to the tribunal to conclude that exceptions to the general requirements would have been unfair. The victimisation claim failed because the protected act relied on was not a cause of any action by Dr Platt or the Secretary of State.
7. Applying the guidance in Igen v Wong [2005] EWCA 142 and the approach discussed in Madarassy v Nomura International PLC [2007] EWCA Civ 33, the court upheld the tribunal’s conclusion that no prima facie case had been established.
8. For limitation purposes, the tribunal was entitled to treat the letter of 15 December 1998 as a fresh decision on the merits because new material had been supplied. It was therefore capable of founding a complaint presented within the three-month period under section 68(1)(a) of the 1976 Act.
9. Costs of the permission application were payable by Mr Chaudhary, subject to the usual limitation concerning enforcement against a publicly funded party.

• Court of Appeal (Civil Division): Permission to appeal was refused. The proposed appeal from the Employment Appeal Tribunal had no real prospect of success. The Secretary of State’s cross-appeal became academic; permission would have been refused on the time-limit issue.
• Employment Appeal Tribunal: On 4 October 2005, HHJ Peter Clark presiding, the EAT dismissed Mr Chaudhary’s appeals from two Employment Tribunal decisions.
• Employment Tribunal: The tribunal dismissed the direct and indirect race-discrimination and victimisation claims, after making preliminary rulings on proposed amendments and the relevant racial group.