Kulkarni v NHS Education Scotland & Anor

A body is a qualifications body under sections 53 and 54 of the Equality Act 2010 only if it can confer a formal relevant qualification. The listed forms of qualification connote that the body has power to set a standard and declare that a person has attained it.

A body which provides educational services, but has no power to confer such an authorisation, qualification, recognition, registration, enrolment, approval or certification, is not a qualifications body. The allocation of a trainee to an already qualified consultant does not itself confer a relevant qualification. Minimal advantages flowing from that allocation did not facilitate engagement in the consultant's profession.

The claimant, a consultant orthopaedic surgeon, alleged that the failure to allocate a trainee to him for five years was racially motivated. NHS Education Scotland was responsible for education and training of trainee surgeons. Its employee-equivalent, the second respondent, undertook work including allocation of trainees to consultants.

An Employment Tribunal at Glasgow, Employment Judge Murphy sitting alone, dismissed the claims. It held that NHS Education Scotland was neither a qualifications body under sections 53 and 54 nor an employment service provider under sections 55 and 56 of the Equality Act 2010. The claimant appealed only the qualifications-body ruling. The central issue was whether allocation of a trainee amounted to conferring a relevant qualification which facilitated engagement in the medical profession.

1. Appeal dismissed. The Employment Tribunal reached the only conclusion open on its findings: NHS Education Scotland was not a qualifications body within sections 53 and 54 of the Equality Act 2010.

2. The statutory question was whether the respondent could confer an authorisation, qualification, recognition, registration, enrolment, approval or certification which was needed for, or facilitated, engagement in the profession. Those expressions have a formal setting. They connote that the body has power to set a particular standard and declare that the person has attained it.

3. NHS Education Scotland's function was to provide educational services. It had no power to confer any of the listed forms of qualification on consultant surgeons or other medical professionals. Allocation of a trainee was not the grant of a qualification. It required no assessment or test beyond the consultant's existing registration with the General Medical Council.

4. The claimant's reliance on the advantages of having a trainee could not cure that fundamental deficiency. Further, whether those advantages facilitated engagement in the profession was a factual issue. The Tribunal was entitled to find that they were minimal and did not enable a consultant to practise in a way unavailable to a consultant without a trainee. The Appeal Tribunal, which had not heard the evidence, could not interfere with that conclusion.

5. The claimant did not timeously challenge the separate ruling on employment-service-provider status. The appeal was therefore dismissed.

• Employment Appeal Tribunal: dismissed the claimant's appeal and upheld the ruling that NHS Education Scotland was not a qualifications body under sections 53 and 54 of the Equality Act 2010.
• Employment Tribunal, Glasgow: Employment Judge Murphy dismissed the claim against NHS Education Scotland on the basis that it was not a qualifications body or employment service provider, and dismissed the claim against the second respondent.