A Czechoslovakian doctor complained against the General Medical Council under Section 12(1)(a) of the 1976 Act 1976 in respect of the most recent of a series of refusals, under its rules for the grant of limited registration as a medical practitioner in this country for doctors with overseas qualifications, to exempt her from its requirement of passing a test of proficiency in English.
Held: The appeal failed. The GMC’s rules when being tested as discriminatory gave a new complaint on each occasion on which they were used. The most recent refusal, which was in response to a letter on the complainant’s behalf from a local Council for Racial Equality, was within time.
Brooke LJ acknowledged that a complainant of discrimination in the field of employment may establish jurisdiction by relying simply on the existence of a policy as a continuing act of discrimination regardless of its most recent application to him: ‘It was an important part of . . [the GMC’s] case that the Employment Appeal Tribunal failed to take into account the fact that the cases on which it relied were all decided in relation to s. 4 of the 1976 Act or s.6 of the Sex Discrimination Act 1975. . . In those cases the discriminatory act complained of is not a one-off act of refusal; it arises out of the way in which the employer affords his or her employees access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or out of the employer refusing or deliberately omitting to afford the employees access to them. In these circumstances, the courts have held that if an employer adopts a policy which means that a black employee or female employee is inevitably barred from access to valuable benefits, this is a continuing act of discrimination against employers who fall into these categories until the offending policy is abrogated.’ and
‘In my judgment, it is not necessary to resolve the question of the proper interpretation of s. 12(1)(a) of the Act in the present case. If the regime which the GMC had selected for its exemptions policy was inherently discriminatory . . then on every occasion that it refused to allow her limited registration without first taking the . . test it would be committing an act of unlawful discrimination contrary to s. 12(1)(b) of the Act. I do not regard the letter from the Greenwich Racial Equality Council as being akin to a solicitor’s letter in these circumstances. It was inviting the GMC to grant Dr Rovenska an exemption, and there were three new features of this application compared with the letter Dr Rovenska had written in December. It advanced a new (bad) argument based on her acquisition of the new Master’s degree; it forwarded a new up-to-date reference; and it expressly asked for an exemption. The GMC refused this application, and Dr Rovenska’s application was made within three months of that refusal.’
Judges:
Brooke LJ, Nourse, Roch LJJ
Citations:
Times 31-Dec-1996, [1996] EWCA Civ 1096, [1997] IRLR 367, [1998] ICR 85
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Appeal from – Rovenska v General Medical Council EAT 22-Sep-1994
The complainant said that the respondent’s rules imposing language skills testing on doctors with recognised foreign qualifications were discriminatory.
Held: Discriminatory rules are a continuing act and the complaint was not barred by time . .
Cited by:
Cited – Cast v Croydon College CA 19-Mar-1998
Complaint was made within time limit when the decision complained of was a reconsideration of an earlier decision, not just a reference back to it.
Held: In a sex discrimination case, where there has been a constructive dismissal, time runs . .
Lists of cited by and citing cases may be incomplete.
Discrimination, Health Professions
Updated: 29 May 2022; Ref: scu.140963