Kapenova v Department of Health

An indirectly discriminatory provision, criterion or practice may be justified where it is an appropriate and reasonably necessary means of achieving legitimate aims. The existence of a less discriminatory alternative is relevant to proportionality but is not automatically determinative. A justification may include resource considerations where they form part of a wider social-policy aim, rather than being based solely on cost. European law does not impose a more restrictive test in this context. The Harmonisation Directive does not exhaustively regulate eligibility for postgraduate foundation training, and exclusion from the two-year Foundation Programme does not deny access to specialist medical training where other routes remain available.

The appellant, a Kazakhstan national studying medicine in the Czech Republic, would complete a six-year medical course and become entitled to full GMC registration under section 3(1)(b) of the Medical Act 1983. She was refused admission to the two-year UK Foundation Programme because applicants who had obtained, or were expected to obtain, full registration by its commencement were ineligible.

The Employment Tribunal accepted that the criterion was indirectly discriminatory on grounds related to nationality, but held that it was justified under the Equality Act 2010 and Article 45 TFEU. The appeal concerned whether the Tribunal had applied the correct domestic and European tests, properly considered the Harmonisation Directive and relevant CJEU authorities, and adequately assessed alternatives.

1. Appeal dismissed. The Employment Tribunal had not erred in holding that the eligibility criterion was indirectly discriminatory but justified.
2. The relevant aims were legitimate social-policy aims: providing Foundation Programme training to graduates who needed it to obtain full registration, accommodating UK graduates seeking registration, maximising training opportunities, and avoiding waste of scarce NHS resources. Resource considerations could contribute to a legitimate aim where they formed part of a wider justification and were not relied on alone.
3. The correct proportionality inquiry was whether the criterion was an appropriate and reasonably necessary means of achieving the legitimate aims. The formulation adopted in Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601 was compatible with European law.
4. The availability of a less discriminatory alternative was a factor in the overall assessment. It was not automatically fatal to justification. The Tribunal was entitled to consider alternative eligibility criteria while treating proposed structural reforms to the Foundation Programme as outside the function of the UKFPO, which administered applications but did not design the programme.
5. No European instrument placed before the Tribunal precluded justification. Article 45(3) TFEU did not restrict the justification grounds in this case because no offer of employment had been made. The Harmonisation Directive established minimum training and recognition requirements but had not exhaustively harmonised access to postgraduate foundation training. The appellant remained able to pursue an F2 post and obtain the FACD needed for specialist training.
6. Bressol and Commission v Austria supported an assessment of appropriateness, necessity and factual evidence in the individual case, but did not confine legitimate aims to imperative grounds of public policy. The Tribunal was entitled to draw reasonable inferences from the evidence, including that admitting graduates already entitled to full registration could waste training resources and disadvantage graduates who needed F1.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal’s judgment sent to the parties on 12 November 2012 was dismissed. The Tribunal’s conclusion that the criterion was justified was upheld.