Vaidya v The General Medical Council

Section 12(1A) of the Race Relations Act 1976 does not import the specific acts listed in section 12(1)(a) to (c). It nevertheless requires three constituent elements: an authority or body within section 12(1), a person who holds or applies for the relevant authorisation or qualification, and harassment done in relation to that authorisation or qualification. Section 27A(2) may extend protection to conduct occurring after the underlying relationship has ended, where the conduct is closely connected with that relationship. A complaint cannot proceed where the claimant no longer falls within the protected class, the pleaded conduct predates an earlier determination, and no later qualifying act is alleged.

Dr Vaidya appealed against a decision of Employment Judge Glennie, sitting at a Pre-Hearing Review, which dismissed his claims against the General Medical Council. Permission was granted for a narrow issue concerning the construction of section 12(1A) of the Race Relations Act 1976, in relation to alleged racial harassment through non-disclosure of case files.

The Employment Appeal Tribunal, sitting alone, also considered whether Dr Vaidya was a person who held or applied for the relevant authorisation or qualification after his erasure from the medical register. The central issue was whether the harassment claim remained within section 12(1A), including through section 27A(2), despite the withdrawal of the authorisation and earlier proceedings.

The appeal was dismissed.

1. Section 12(1A) of the Race Relations Act 1976 does not import the specific acts in section 12(1)(a) to (c) directly into subsection (1A). The provision contains three elements: the potential harasser must be an authority or body within section 12(1); the claimant must hold or apply for the relevant authorisation or qualification; and the alleged harassment must be done in relation to an authorisation or qualification conferred by that body.
2. Dr Vaidya had held the relevant authorisation while registered to practise medicine, but his registration was withdrawn following erasure. Under section 41(2) of the Medical Act 1983, he could not apply for restoration for five years. He therefore did not fall within section 12(1A) after that point without more.
3. Section 27A(2) of the Race Relations Act 1976 could permit a harassment claim after the relationship with the GMC had ended, if the conduct was closely connected with that relationship. That did not assist the claimant on the pleaded facts.
4. The alleged non-disclosure concerned dates between 20 April 2004 and 16 December 2008. Disclosure in April 2010 could not itself constitute harassment because it did what the claimant had requested. The earlier complaints had been determined, or ought to have been brought, in the previous proceedings before Employment Judge Edge. Applying the rule in Henderson v Henderson [1843] 3 Hare 100, they could not be resurrected.
5. There was consequently no extant harassment claim relating to the authorisation conferred and later withdrawn by the GMC, nor any claim arising out of or closely connected with the former relationship. Employment Judge Glennie was right to strike out the complaint.

• Employment Tribunal: Employment Judge Glennie dismissed the claimant’s claims at a Pre-Hearing Review, with Reasons promulgated on 12 October 2010.
• Employment Appeal Tribunal: the appeal was initially rejected on the paper sift and at an oral hearing, but a narrow construction point concerning section 12(1A) of the Race Relations Act 1976 proceeded to a full hearing. The appeal was dismissed.