The appellant’s application for full registration as a qualified medical practitioner had been refused by the GMC after a five-year maximum period of limited registration. His application for full registration in accordance with section 25 of the Medical Act 1983 was refused by the GMC. He then applied to the Review Board for Overseas Qualified Practitioners for a review pursuant to section 29 of the Act. That application failed, as did a second application and request for review. The appellant then made a complaint to an industrial tribunal that he had been indirectly discriminated against on the ground of his race within the meaning of section 1(1)(b) of the Race Relations Act 1976, contrary to section 12(1) of the Act. On a preliminary issue the industrial tribunal found that the right under section 29 of the Medical Act 1983 to apply for a review of the decision of the General Medical Council was a proceeding, ‘in the nature of an appeal’ for the purposes of section 54(2) of the Race Relations Act 1976 and the appellant’s right to present a claim under section 54(1) was therefore excluded.
Held: The appeal failed. The application to the Review Board constituted a proceeding in the nature of an appeal. No claim of indirect discrimination lay in the Industrial Tribunal for the refusal of registration by a statutory body.
Hoffmann LJ said: ‘It is a short question of construction which, in my judgment, admits of an easy answer, namely, ‘Yes’. Section 29 of the Act of 1983 allows the decision of the General Medical Council to be reversed by a differently constituted set of persons. For present purposes, I think that this is the essence of what is meant by ‘proceedings in the nature of an appeal’. I note that in Wootton v Central Land Board [1957] 1 WLR 424 Lord Evershed MR had to consider whether an application to the Lands Tribunal by a party who was dissatisfied with the determination of a land value by the Central Land Board was in the nature of an appeal. He maintained that it was. He said that it might fairly be described as an appeal to another body having the right either of affirming the development value or altering it.’
Dealing with an argument that claimants such as Dr Khan were not able to pursue claims for race or sex discrimination if they were not permitted to make complaints to an industrial tribunal, he said: ‘For my part, I do not see why [an application for review under section 29] should not be regarded as an effective remedy against sex or race discrimination in the kind of case with which section 12(1) of the Race Relations Act 1976 deals. That concerns qualifications for professions and trades. Parliament appears to have thought that, although the industrial tribunal is often called a specialist tribunal and has undoubted expertise in matters of sex and racial discrimination, its advantages in providing an effective remedy were outweighed by the even greater specialisation in a particular field or trade or professional qualification of statutory tribunals such as the review board, since the review board undoubtedly has a duty to give effect to the provisions of section 12 of the Act of 1976: see per Taylor LJ in R v Department of Health, Ex p Gandhi [1991] ICR 805, 814. This seems to me a perfectly legitimate view for Parliament to have taken. Furthermore, section 54(2) makes it clear that decisions of the review board would themselves be open to judicial review on the ground that the board failed to have proper regard to the provisions of the Race Relations Act 1976. In my view, it cannot be said that the Medical Act 1983 does not provide the effective remedy required by Community law.’
Judges:
Hoffmann LJ
Citations:
Ind Summary 11-Apr-1994, [1996] ICR 1032
Statutes:
Jurisdiction:
England and Wales
Citing:
Appeal from – Khan v General Medical Council EAT 24-Mar-1993
An Asian Doctor had repeatedly been refused full registration by the council. It was held that he could not bring a claim of indirect discrimination, because he had not exhausted his rights of appeal. An application for review under the Act gave . .
Cited by:
Appealed to – Khan v General Medical Council EAT 24-Mar-1993
An Asian Doctor had repeatedly been refused full registration by the council. It was held that he could not bring a claim of indirect discrimination, because he had not exhausted his rights of appeal. An application for review under the Act gave . .
Cited – British Medical Association v Chaudhary CA 15-May-2003
The claimant had sought registration as a specialist medical practitioner by the respondent. His complaint that the crtiria used to reject his claim were discriminatory had been rejected by the employment tribunal and EAT on the basis that they had . .
Cited – Michalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 01 October 2022; Ref: scu.82760