King v Health Professions Council

Discrimination provisions governing qualifying bodies concern the terms on which a qualification is conferred, refusal of an application, or withdrawal or variation of an existing qualification. They do not cover advance correspondence indicating that an applicant’s qualifications would not be accepted, where no application has been made.

A claimant who has been deterred from applying is not thereby treated as having made an application or suffered a refusal. The statutory scheme may require the claimant first to apply to the qualifying body, whose decision can then be challenged through the prescribed appeal route.

The appellant wished to return to work as a biomedical scientist and required registration by the Health Professions Council. The Council informed her that her qualifications were not approved and that it could not accept an application without an approved programme qualification or an Institute of Biomedical Sciences certificate.

She alleged sex, race and age discrimination. The Employment Tribunal initially accepted jurisdiction, but on review concluded that it lacked jurisdiction. The review decision was based on an erroneous view that the Council’s actions implemented statutory requirements. The central issue before the Employment Appeal Tribunal was whether the correspondence fell within the statutory discrimination provisions concerning qualifying bodies.

1. Appeal dismissed. The Employment Judge’s reasoning was erroneous, but the conclusion that the Employment Tribunal lacked jurisdiction was plainly and unarguably right.
2. The statutory provisions formed a coherent group. The reference to the terms on which a qualification was conferred concerned the extent of enjoyment of the qualification once granted, such as conditional registration. It did not include arrangements facilitating or hindering an application. The comparison with section 6 of the Sex Discrimination Act 1975, which expressly addressed arrangements for determining who should receive employment, supported that construction.
3. The same interpretation applied to section 12 of the Race Relations Act 1976 and the relevant provisions of the Employment Equality (Age) Regulations 2006. Advance advice that qualifications would not be accepted was not a discriminatory term of registration.
4. No application for registration had been made. Accordingly, the provisions concerning refusal or deliberate non-grant of an application did not apply.
5. The statutory scheme did not itself excuse discrimination. The list of approved qualifications was left to the Council’s choice, although the Council was required to make such a choice. That discretionary choice had to comply with the discrimination legislation.
6. The approach was consistent with Koskinen, British Judo Association v Petty and Virik v General Medical Council. Although the relevant passage in Koskinen was obiter, it was highly persuasive because the Court of Appeal had heard full argument and agreed on the point.
7. The appellant was not legally prevented from applying. If the Council refused an application, the statutory appeal route could address the discrimination issues, subject to review by the courts.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal’s review decision was dismissed. The Tribunal’s reasoning was wrong, but its conclusion that it lacked jurisdiction was upheld on a proper construction of the legislation.