Employment Cases Update

Uddin v General Medical Council & Ors UKEAT/0078/12/BA

Date published: 15/02/2013

Appeal against a decision that the ET did not have jurisdiction to hear claims of direct and indirect race discrimination and harassment by virtue of s120(7) of the Equality Act 2010. Appeal allowed and remitted to a different Tribunal.

At a pre-hearing review an Employment Judge held that the Employment Tribunal had no jurisdiction to determine the claimant’s claims of race discrimination and harassment.  She held that the Medical Act 1983 and judicial review provided “an appeal or proceedings in the nature of an appeal” from such acts within the meaning of the Equality Act 2010 section 120(7) which would prevent the ET from hearing claims based on those acts.  The acts complained of, although unparticularised in the judgment and not sufficiently by the claimant, were alleged to have occurred before his name was struck from the Register of Medical Practitioners and before he was made subject to immediate suspension. 

The EAT allowed the appeal. The EJ had erred in relying on a right of appeal under the Medical Act 1983 as none was provided in relation to the acts alleged by the claimant.  Further, the EJ erred in deciding that judicial review proceedings were “proceedings in the nature of an appeal” without identifying the acts complained of and considering whether judicial review would be available to challenge them.  Further, the EJ erred in relying on the obiter dictum of the EAT in Tariquez-Zaman v GMC as holding that judicial review proceedings were proceedings in the nature of an appeal within the meaning of EA section 120(7) whose availability to the claimant excluded the jurisdiction of the ET.

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Appeal No. UKEAT/0078/12/BA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 20 June 2012

Judgment handed down on 14 February 2013

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

(SITTING ALONE)

DR M UDDIN (APPELLANT)

GENERAL MEDICAL COUNCIL & OTHERS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
DR S VAIDYA (Representative)

For the Respondents
MR IVAN HARE (of Counsel)
Instructed by:
General Medical Council
Legal Services
Regents Place
350 Euston Road
London
NW1 3JA

SUMMARY

RACE DISCRIMINATION

Direct

Detriment

Discrimination by other bodies

At a pre-hearing review an Employment Judge held that the Employment Tribunal had no jurisdiction to determine a doctor's claims of race discrimination and harassment. She held that the Medical Act 1983 and judicial review provided "an appeal or proceedings in the nature of an appeal" from such acts within the meaning of the Equality Act 2010 section 120(7) which would prevent the ET from hearing claims based on those acts. The acts complained of, although unparticularised in the judgment and not sufficiently by the Claimant were alleged to have occurred before his name was struck from the Register of Medical Practitioners and before he was made subject to immediate suspension. The EJ erred in replying on a right of appeal under the Medical Act 1983 as none was provided in relation to such acts. Further the EJ erred in deciding that judicial review proceedings were "proceedings in the nature of an appeal" without identifying the acts complained of and considering whether judicial review would be available to challenge them. Further the EJ erred in relying on the obiter dictum of the EAT in paragraph 31 of the judgment in Tariquez-Zaman v GMC UKEAT/0292/06/DM UKEAT/0517/06/DM as holding that judicial review proceedings were proceedings in the nature of an appeal within the meaning of EA section 120(7) whose availability to the Claimant excluded the jurisdiction of the ET.

Appeal allowed. Case remitted to a different Employment Judge to consider whether the jurisdiction of the Employment Tribunal to hear the Claimant's claims is excluded by Equality Act 2010 section 120(7), whether the claims were presented in time and whether the Claimant can pursue his claims against individual Trustee Members of the GMC.

The difference between EA section 53(2) and Race Relations Act 1976 section 12(1) considered.

THE HONOURABLE MRS JUSTICE SLADE DBE

1. Dr Uddin appeals from the judgment of an Employment Judge ('EJ') sent to the parties on 23 June 2011 following a Pre-Hearing Review in which she held that by reason of the Equality Act 2010 ('EA') section 120(7) the Employment Tribunal ('ET') had no jurisdiction to hear Dr Uddin's complaints of direct and indirect race discrimination and harassment related to race. EJ Henderson further held that by virtue of regulation 28(2) of the Employment Equality (Religion or Belief) Regulations 2003 or EA section 120(7), whichever applies, the ET had no jurisdiction to hear Dr Uddin's complaint of direct religious discrimination. As EJ Henderson held that there was no jurisdiction to hear Dr Uddin's claims, she decided that she did not have to consider further the claims against the twenty five individual respondents who are or were Trustee members of the General Medical Council ('GMC'). The GMC is the relevant qualifying body as defined by EA section 54(2) for the purposes of Dr Uddin's claims under EA sections 53 and 120. The parties to this appeal will be referred to as Dr Uddin and the GMC. References below are to the judgment of the EJ unless otherwise indicated.

2. Dr Uddin's appeal was heard together with that of Dr Depner as the appeals raised similar issues although the claims were brought under different discrimination Acts, the EA in the case of Dr Uddin and the Race Relations Act 1976 ('RRA') in the case of Dr Depner. Their cases were heard by different Employment Judges.

3. Dr Uddin and Dr Depner are doctors. Dr Uddin is of Bangladeshi origin, Dr Depner, of German origin. They both made complaint of race discrimination and harassment in the way in which complaints against them were dealt with by the GMC. They alleged that its Trustees were also liable for such acts. The Employment Judges held that there was no jurisdiction to hear the claims of race discrimination and of victimisation made by Dr Depner and of race discrimination and harassment made by Dr Uddin. Their appeals were heard together. Dr Vaidya represented the Appellant and Mr Hare the Respondents in both appeals. Dr Uddin's appeal raises the issue of the scope of the right to bring a claim of race discrimination against a qualifying body under EA sections 53(2) and 120(1)(a) the exclusion of claims of such discrimination and harassment under section 53(3) from the jurisdiction of the ET by operation of EA section 120(7). The jurisdiction of the ET is excluded in respect of such acts where they may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal. The EJ did not find it necessary to determine whether Dr Uddin could pursue his claims against the Trustees of the GMC as she held on other grounds that the ET did not have jurisdiction to entertain them.

4. Dr Uddin asserted in his claim to the ET that the GMC chose to and pursued disciplinary proceedings against him in a way they would not in respect of people of different ethnic origin. Pursuant to Medical Act 1983 ('MA') section 35(2)(a) on 29 October 2010 his name was erased from the Register of Medical Practitioners ('the Register'). An order for his immediate suspension from the Register was made under MA section 38(1).

The scope of the appeal

5. On the 'sift' Dr Uddin's appeal was thought to disclose no arguable point of law. At a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993 to determine whether the Notice of Appeal disclosed reasonable grounds for bringing the appeal, Langstaff P held:

"7. Having considered the wording of Section 40 of the Medical Act 1983, it seems to me that there might be an argument that, in so far as, but only in so far as, the claim before the Tribunal raised issues relating to the approach of the GMC in deciding whether or not to begin proceedings against Dr Uddin, it might not fall within the scope of the Medical Act. If so, then Section 120(7) would not deprive the Tribunal of jurisdiction."

Langstaff P observed that the EJ came to no conclusion on whether Dr Uddin was entitled to proceed against the Trustees of the GMC, the twenty five individual Respondents named by him. He stated:

"Accordingly it seems to me that I should not at this stage interfere with the whole appeal going forward on the grounds that I have identified, and only in so far as I have identified the issues in this short Judgment."

Langstaff P helpfully clarified that the issue he decided should proceed to a full hearing was the first ground of appeal, whether the EJ erred in failing to consider the conduct of the GMC 'upstream' of the decision taken on 29 October 2010 to erase Dr Uddin's name from the Register and whether complaint to an ET of that conduct was not excluded by EA section 120(7). In the skeleton argument prepared for the purpose of this appeal, Dr Vaidya, Dr Uddin's representative, stated:

"8. It is important to remember at the outset:

(i) that Dr Uddin's action before the ET is a 'claim for compensation and damages' for detriment caused by the GMC staff and not 'an appeal' from any decision by the panels 'independent' of the GMC, merely to afford some protracted 'declaratory relief' of these being 'quashed' or 'remitted' back to the GMC;

(ii) that Dr Uddin's ET-claim arises from the 'continuing acts' i.e. the 'administrative & procedural actions by the GMC staff' that predate and decision[s] or isolated end-points (S12(a)(b)(c)) that could be arrived at by the GMC-panel[s] 'independent' of the GMC;

(iv) that any claim against the GMC Panels that might properly fall within S12(1) has not been made and hence irrelevant to Dr Uddin's present ET-claim."

In accordance with the ruling of Langstaff P, the subject of this appeal is whether the EJ erred in holding that the ET had no jurisdiction to determine complaints of race discrimination and harassment relying on events leading up to the decisions of the Fitness to Practice Panel ('FPP') on 29 October 2010 to erase Dr Uddin's name from the Register and to impose immediate suspension.

Disciplinary action and court proceedings

6. Although, rightly, no evidence was given for findings of fact made in the Pre-Hearing Review, it is helpful to understand the context in which Dr Uddin made his claim to the ET. The following outline of facts is taken from Dr Uddin's Chronology for this appeal.

7. Dr Uddin is a doctor of Bangladeshi origin who qualified in Ireland. He was on a GP training programme. On 26 May 2009 the programme director of the GP training programme arranged a meeting with Dr Uddin and commented on the lack of entries on his ePortfolio. These should record comments by others on a doctor's skills. On 28 May 2009 Dr Uddin was told that he would be given an unsatisfactory progress report and he was asked whether the entries on his ePortfolio were genuine. The Chronology records:

"Dr Uddin confirms the skills filed are genuine.

And Dr U admits making proxy-ePortfolio-entries."

In June Dr Uddin admitted that he had made "self-entries" on his ePortfolio. He apologised for doing this and he apologised to a doctor for falsely using the doctor's details.

8. On 7 July 2009 Dr Uddin was told he had been removed from the GP training programme and that he would be referred to the GMC. He was taken through a disciplinary process. On 18 August 2009 an Interim Orders Panel ('IOP') imposed an eighteen month interim suspension of his entry on the Register. On 5 February 2010 Dr Uddin was informed that his case was being referred to the FPP. On 8 February 2010 a second IOP hearing applied conditions to Dr Uddin's registration. IOP hearings on 21 April and 7 July 2010 confirmed Dr Uddin's suspension. On 20 October 2010 Dr Uddin formally admitted charges brought against him. A five day public hearing before the FPP took place from 25 to 29 October 2010. On 29 October 2010 the FPP found Dr Uddin's fitness to practice was impaired and struck his name from the Register. An order for immediate suspension was also imposed.

9. Dr Uddin appealed the FPP's decisions under MA section 40(7). He also applied to the court under MA section 38(8) for termination of the order for his immediate suspension from the Register. On 28 January 2011 Dr Uddin issued his ET1 in Case No. 2200336/2011 against the GMC and twenty-five Trustees of the GMC. On 2 February 2012 Stadlen J dismissed Dr Uddin's section 40 appeal. There has been no adjudication of his section 38(8) application.

Outline claims in the ET1

10. In order to assess whether the acts complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal within the meaning of EA section 120(7), it is necessary for the particular complaints made, as distinct from background facts, to be identified. This was not done in this case. It appears from the ET1 that Dr Uddin claimed ongoing race discrimination and harassment on grounds of race with the latest event occurring on 29 October 2010. Included in the events relied upon were:

(1) in July 2009 being referred to the GMC for filling in himself entries on his e-portfolios. He alleged that Caucasian comparators were treated more leniently.

(2) at the five day Fitness-to-Practice hearing 25 to 29 October 2010 counsel for the GMC asked the FPP to strike Dr Uddin's name from the Register for a single count of dishonesty, Dr Uddin contended that this constituted racial harassment and that he was struck off whereas many Caucasian comparators were not.

(3) the GMC proceeding with a hearing before the FPP when he admitted the charges against him.

(4) The minimum number of panellists should have been four not three. The panellists were inappropriately selected and inadequately qualified. Complaint was also made about the way in which the hearing was conducted.

(5) seeking immediate suspension of his registration pending the outcome of his statutory appeal.

The relevant statutory provisions

11. Equality Act 2010:

"53. Qualifications Bodies

(2) A qualifications body (A) must not discriminate against a person (B) upon whom A has conferred a relevant qualification-

(a) by withdrawing the qualification from B;

(b) by varying the terms on which B holds the qualification;

(c) by subjecting B to any other detriment.

(3) A qualifications body must not, in relation to conferment by it of a relevant qualification, harass-

(a) a person who holds the qualification,

120. Jurisdiction

(1) An employment tribunal has, subject to Section 121, jurisdiction to determine a complaint relating to-

(a) a contravention of Part 5(work);

(7) Subsection (1)(a) does not apply to a contravention of Section 53 in so far as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal."

12. Medical Act 1983 (as amended):

"35D. Functions of a Fitness to Practise Panel

(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit—

(a) except in a health case, direct that the person's name shall be erased from the register;

38. Power to order immediate suspension etc. after a finding of impairment of fitness to practise.

(1) On giving a direction for erasure or a direction for suspension under section 35D(2)… in respect of any person the Fitness to Practise Panel, if satisfied that to do so is necessary for the protection of members of the public or is otherwise in the public interest, or is in the best interests of that person, may order that his registration in the register shall be suspended forthwith in accordance with this section.

(3) Where, on the giving of a direction, an order under subsection (1) or (2) above is made in respect of a person, his registration in the register shall, subject to subsection (4) below, be suspended (that is to say, shall not have effect) or made conditional, as the case may be, from the time when the order is made until the time when—

(b) an appeal against it under section 40 below… is (otherwise than by the dismissal of the appeal) determined.

(8) The relevant court may terminate any suspension of a person's registration in the register imposed under subsection (1) above… and the decision of the court on any application under this subsection shall be final.

(9) In this section "the relevant court" has the same meaning as in section 40(5) below.

40. Appeals

(1) The following decisions are appealable decisions for the purposes of this section, that is to say—

(a) a decision of a Fitness to Practice Panel under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration;

(4) A person in respect of whom an appealable decision falling within subsection (1) has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 35E(1) above, or section 41(10) or 45(7) below, appeal against the decision to the relevant court.

(5) In subsection (4) above, "the relevant court"—

(c) in the case of any other person…means the High Court of Justice in England and Wales.

(7) On an appeal under this section from a Fitness to Practise Panel, the court may—

(a) dismiss the appeal;

(b) allow the appeal and quash the direction or variation appealed against;

(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or

(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court,

and may make such order as to costs (or, in Scotland, expenses) as it thinks fit."

13. Race Relations Act 1976:

"12. Qualifying bodies

(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person-

(c) by withdrawing it from him or varying the terms on which he holds it.

(1A) It is unlawful for an authority or body to which subjection (1) applies, in relation to an authorisation or qualification conferred by it, to subject to harassment a person who holds or applies for such authorisation or qualification."

The judgment of the EJ

14. The claims before the EJ were of direct and indirect race discrimination, harassment related to race and for direct "religious/other belief discrimination". The EJ recorded:

"4. Mr Vaidya explained that the conduct complained of by the Claimant in respect of each of these claims, commenced in July 2009 (with the institution of disciplinary processes) and continued up to 29 October 2010 being the last Hearing day of the Fitness to Practice Panel.

5. It was agreed between the parties that these constituted continuing acts and therefore fall to be considered under the provisions of the Equality Act 2010 (EA) – see paragraph 7 of the Equality Act (Transitional Provisions) s1 2010 No. 2317."

15. The EJ rejected arguments advanced by Dr Vaidya on behalf of Dr Uddin in support of a construction of EA section 120(7) which would add a qualification to the exclusionary effect of the existence of alternative statutory appeals in respect of acts within the scope of EA section 53 that such appeal procedures "could deliver the same justice as the employment tribunal".

16. In addition to stating in paragraph 11 that the judgment of the Court of Appeal in Khan v General Medical Council [1996] ICR 1032 established that a right of appeal under MA from a qualifying body's decision provided an "appeal or proceedings in the nature of an appeal" within the meaning of EA section 120(7), the ET proceeded on the basis that the Employment Appeal Tribunal, HH Judge McMullen QC sitting alone, in Tariquez-Zaman v General Medical Council UKEAT/0292/06/DM and UKEAT/0517/06/DM on 20 December 2006 decided that the availability of judicial review to challenge a decision of a qualifying body brought a claim within the scope of that provision. The EJ held:

"17. Mr Vaidya also appeared to misunderstand that the reference in s120(7) to the whole of s53 – meant that the exclusion was comprehensive – i.e. that the Tribunal had no jurisdiction to hear any of the complaints listed in s53.

18. The Tribunal notes the fact that in the Race Relations Act 1976, there was an issue in that s54(2) only excluded jurisdiction for claims under s12(1) and not 12(1A) which related to harassment. However, it is clear that the Tribunal is looking here at the EA…

Conclusions

19. The decision of the Tribunal is that it has no jurisdiction to hear the complaints of direct and indirect race discrimination and harassment on racial grounds by virtue of s120(7) EA.

22. As the Tribunal has decided it has no jurisdiction to hear the discrimination claims against a qualifying body and as the claims against individual respondents are brought on the basis of their membership of that body, there is no need to go further and consider whether the claims against them should proceed. There is no jurisdiction in that regard either."

The submissions of the parties

17. Dr Vaidya for Dr Uddin contended that steps in the disciplinary process before a decision by the FPP were not subject to appeal under the MA. Accordingly those acts did not fall within the exclusionary provisions of EA section 120(7). For example under the General Medical Council (Fitness to Practice) Rules 2004, Rule 8, an allegation referred by the Registrar is to be considered by Case Examiners. Upon consideration of an allegation, the Case Examiners choose between four courses of action ranging from a decision that the allegation should proceed no further to a decision to refer the allegation for determination by a FPP. Such a decision is not subject to a statutory appeal. Accordingly Dr Vaidya contended that complaints of race discrimination and harassment in relation to it are not excluded by EA section 120(7). Similarly other steps like the decision of the Registrar under Rule 4 to refer an allegation to Case Examiners are not subject to a statutory appeal and therefore race discrimination and harassment complaints in relation to these are not excluded by EA section 120(7).

18. Dr Vaidya contended that the EJ erred in confining her consideration of Dr Uddin's case to "One event…the decision on fitness to practice" when a continuing act of discrimination was alleged "all the way up to the last point", the erasure of Dr Uddin's name from the Register on 29 October 2010 and the immediate suspension of his registration. Dr Vaidya said that Langstaff P understood the distinction between those matters which were subject to an appeal under the MA and those which were not. Dr Vaidya contended that although the ET1 did not refer to the dates on which the Registrar referred the allegation against Dr Uddin to the case examiners or to when the case examiners decided to refer the matter to the FPP, a continuing act, the whole of the conduct of the disciplinary proceedings against Dr Uddin, was complained of in the ET1.

19. Dr Vaidya contended that there is no right of appeal under the MA in respect of events prior to the decision of the FPP to erase Dr Uddin's name from the Register and the decision to impose immediate suspension. Dr Vaidya contended that the statutory appeals provided by the MA do not give a right of appeal in respect of the discrimination claims made in Dr Uddin's case. As was made clear in the skeleton argument lodged on his behalf and in the judgment of Langstaff J setting out the basis upon which the appeal was to proceed to a full hearing, the claims made are in respect of acts which predate the decision of the FPP of 29 October 2010. In any event Dr Vaidya contended that the scope of a court hearing an appeal under the MA is different from and narrower than that of an ET hearing discrimination claims. It was submitted that the judgment of the Court of Appeal in Khan to contrary effect is not to be followed as "certain findings made in Khan (1994) would today struggle to comply with ECHR and Human Rights Act, 1998".

20. Even if judicial review were available in respect of events before the decisions taken on 29 October 2010, Dr Vaidya contended that this would not provide an appeal or proceedings in the nature of an appeal. The powers of the court on judicial review are limited. Dr Vaidya relied on the judgment of Richards J (as he then was) in R (Madan) v General Medical Council [2001] EWHC Admin 322 in which the judge observed at paragraph 4 that the issues which arise in judicial review proceedings and in an application under Section 41A(10) MA "are in substance the same". In rejecting submissions on behalf of Dr Madan that the public interest could have been protected by the IOC imposing conditions on the doctor's registration rather than suspending it Richards J observed at paragraph 15:

"There are numerous difficulties, as it seems to me, about those submissions. They are submissions that in truth go to the merits of the decision, rather than to the question whether the committee went wrong in a way that would justify this court in interfering. It is not for this court, as Mr Fortune rightly accepts, to substitute its own judgment on the merits. The passage that I have cited from Reza shows the relatively limited function of the court in a statutory application. It is a function parallel to that which the court has in an application for judicial review."

Dr Vaidya relied on the judgment of Eady J in Dr Rakesh Aga v General Medical Council [2012] EWHC 782 (Admin) to similar effect. The test applied by the court in considering the application for judicial review of the categorisation by the GMC of Dr Aga's actions as misconduct was whether it was irrational. Dr Vaidya contended that this approach demonstrated the limitations on the court's role in judicial review and that such proceedings were not "in the nature of an appeal" so as to bring them within EA section 120(7). In his skeleton argument Dr Vaidya contended that the decision of HH Judge McMullen QC in Tariquez-Zaman v General Medical Council UKEAT/0292/06/DM and UKEAT/0517/06/DM of 20 December 2006 in which HH Judge McMullen QC observed at paragraph 31 that if required to do so he would uphold the submission on behalf of the GMC that the equivalent provision in RRA to EA section 120(7) ousts the jurisdiction of the ET to hear discrimination cases because proceedings could be brought by way of judicial review is to be distinguished from Dr Uddin's case. Dr Vaidya contended that judicial review provides an "inferior remedy" to that available to the Appellant from an ET hearing his discrimination claims.

21. It was contended on behalf of Dr Uddin that the Trustees of the GMC were proper respondents to his claim. Dr Vaidya relied on section 54 of the Charities Act 1993 to submit that the Trustees are accountable for the due administration of the GMC. By their Code of Conduct members of the Council of the GMC have a duty to understand their responsibilities as Trustees. They accept collective responsibility for enabling the GMC to achieve its objectives and for decisions taken by it. Pursuant to EA sections 111 and 112 (1) the Trustees must not instruct, cause or induce or knowingly help another to do anything which is a contravention of Parts of the EA including section 53. Accordingly the named individual Trustees should have been held liable for the acts of which Dr Uddin made complaint.

22. In his skeleton argument, Mr Hare contended that Dr Uddin's claims against the GMC could only be brought under the EA section 53(2)(a-c) or section 53(3)(a). However the ET had no jurisdiction to hear such claims as the acts complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal within the meaning of EA section 120(7). That an appeal under the MA was such had been conclusively determined by the Court of Appeal in Khan. The EAT in Tariquez-Zaman expressed the view that judicial review would also be held to be "proceedings in the nature of an appeal" for these purposes. Dr Uddin exercised his right of appeal under the MA from the decisions of 29 October 2010 to erase his name from the Register and to impose an immediate suspension. As regards other decisions of the GMC which may not be subject of an appeal under the MA, Dr Uddin had the remedy of judicial review.

23. At the hearing before me Mr Hare relied upon Regulation 7 of the Equality Act 2010 (Commencement No. 4 – Savings, Consequential, Transitional, Transitory and Incidental Provisions and revocation) Order 2010 SI 2010 No. 2317 ('EA Transitional Provisions') to contend that the events relied upon by Dr Uddin as acts of discrimination before the coming into force of the EA, 1 October 2010, were discrete acts which were to be considered under RRA. RRA section 12 gave no right of complaint of discrimination to an ET about acts leading up to the decision to erase Dr Uddin's name from the Register or to impose immediate suspension. Mr Hare agreed that harassment by a qualifications body on grounds of race was unlawful under RRA section 12(1A) as well as under EA section 53(3)(a) and there was no right to appeal under MA against acts leading up to but not including removal of a doctor's name from or their suspension from the Register. However he contended that judicial review provided "an appeal or proceedings in the nature of an appeal" within the meaning of EA section 120(7) in respect of such acts. Accordingly Dr Uddin could not pursue such claims before the ET. If such claims could be pursued an ET would have to consider whether they were presented in time.

24. Mr Hare contended that the issue of whether individual trustees of the GMC were properly joined as respondents to Dr Uddin's claims had been conclusively determined against him by rulings in Dr Vaidya's own ET proceedings in which he had sought to join them as respondents. Sir Stephen Sedley in refusing permission to appeal the dismissal by the EAT of an appeal on this ground, stated that RRA section 12 gives a claimant a right to claim against a qualifying body, in this case the GMC, not against its Trustees and Executive members. The only route to liability of such individuals was a claim that they had knowingly aided breaches of the RRA or the EA. Such claims had not been made in Dr Uddin's ET1.

Discussion and conclusion

25. Dr Vaidya made it clear that the claims which are the subject of this appeal are not claims against the GMC panels but of "administrative and procedural actions by the GMC staff that predate" their decisions. These acts were described by Langstaff P as being "upstream" of the decisions to erase Dr Uddin's name from the Register and to make an order for his immediate suspension.

26. By section 53(2)(c), the EA confers greater protection from discrimination by a qualifying body than did RRA in section 12(1)(c). Both EA in section 53(2) and RRA in section 12(1) contain a prohibition on discrimination by a qualifications body against a person on whom it has conferred a relevant qualification by withdrawing the qualification or by varying the terms on which that person holds it. In addition the EA, but not the RRA, provides by section 53(2)(c) that such a body must not discriminate against a person upon whom it has conferred a relevant qualification by "subjecting him to any other detriment". Thus race discrimination by a qualifying body subjecting a person on whom that body has conferred a qualification to a detriment which is not withdrawing the qualification or varying the terms on which he holds it is capable of giving rise to a claim under EA but not under RRA.

27. Pursuant to paragraph 7 of the EA Transitional Provisions, the right to bring a claim to an ET under EA section 120 in respect of a breach of section 53 applies where:

"(a) an act carried out before 1st October 2010 is unlawful under a previous enactment; and

(b) that act continues on or after 1st October 2010 and is unlawful under the 2010 Act."

Since RRA section 12(1)(c) only gave a right to the holder of an authorisation to complain of discrimination by the authorising body withdrawing it or varying the terms on which it was held but not, as in EA section 53(2)(c), by subjecting that person to any other detriment, discrimination by the GMC in carrying out discrete acts before 1 October 2010 which were not the withdrawal of Dr Uddin's qualification or varying the terms on which he held it could not give rise to a discrimination claim either under RRA or EA. Claims of direct or indirect discrimination by subjecting Dr Uddin to a detriment on or after 1 October 2010 would fall within EA section 53(2)(c).

28. Since RRA section 12(1A) gave Dr Uddin a right to claim in respect of acts of harassment carried out before 1 October 2010 and he alleges that acts of harassment extended over a period after that date, subject to EA section 120(7) and to the complaints being presented in time, such claims can be pursued under EA.

29. If the acts of which Dr Uddin makes complaint were susceptible to challenge under the MA, EA section 120(7) would preclude the ET from determining such claims. In Khan Hoffmann LJ (as he then was) held at p1042E, F:

"The main question in this appeal is whether proceedings under section 29 of the Medical Act 1983 are 'in the nature of an appeal' within the meaning of section 54(2) of the Race Relations Act 1976. 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'."

In my judgment these observations in relation to MA section 29 and RRA section 54(2) are materially indistinguishable from appeals under MA sections 38 and 40 and the application of EA section 120(7). They form the ratio of Khan. There is no basis for holding that the ratio in Khan is no longer applicable because of the passage of time or because of developments in human rights law as contended by Dr Vaidya. It is binding on this court.

30. There is no right of appeal under the MA sections 40 or 38 in respect of acts complained of by Dr Uddin which led up to but did not include the erasure of his name from the Register and the imposition of immediate suspension. Accordingly unless the acts alleged to constitute harassment or discrimination falling within EA were susceptible to judicial review and judicial review were "proceedings in the nature of an appeal" under an enactment within the meaning of EA section 120(7), those claims of harassment and discrimination would not be excluded from the jurisdiction of the ET by operation that provision.

31. Dr Vaidya made it clear in the skeleton argument lodged on his behalf that Dr Uddin's complaint before the ET was not in respect of his erasure or suspension but of events leading up to those acts. Claims heard before an ET are those made in an ET1. In this case the acts which were the subject of the hearing before the EJ were not particularised. Nor were the "upstream" events in respect of which the appeal was permitted to proceed to a full hearing. In the absence of particularisation of the acts relied upon as constituting harassment or discrimination on or after 1 October 2010 it is not possible to determine whether they would have been susceptible to challenge by Dr Uddin in judicial review proceedings.

32. The EJ erred in holding that the ET had no jurisdiction to hear Dr Uddin's claims because of the availability of an appeal under the MA. No appeal was provided by MA in respect of events before the erasure of Dr Uddin's name from the Register and the order for immediate suspension on 29 October 2010.

33. In paragraph 11 EJ Henderson held that:

"…the case of Tariquez-Zaman v GMC EAT 2006…also states that the opportunity to apply for judicial review is also an 'appeal or proceedings in the nature of an appeal' – the relevant statutory enactment being the Supreme Court (Senior Courts) Act 1983."

Dr Tariquez-Zaman complained of an alleged variation in the terms upon which he held his registration. HH Judge McMullen QC held that there had been no such variation and that finding disposed of the case. However the judge stated that if he were required to make a decision, he would uphold the submission on behalf of the GMC that section 54(2) ousts the jurisdiction of the ET "because, in this case proceedings can be brought by way of judicial review". HH Judge McMullen QC did not decide the appeal before him on the basis that the availability of judicial review ousted the jurisdiction of the ET by operation of RRA section 54(2). It was unnecessary for him to do so as he held that the act complained of had not been established. His observation on whether judicial review proceedings would be proceedings in the nature of an appeal was obiter.

34. The alleged acts of discrimination and harassment were not set out in the judgment and were insufficiently particularised by Dr Uddin. The EJ erred in deciding that judicial review was available to challenge the matters complained of by Dr Uddin without considering and setting out in the judgment what those acts were. One of Dr Uddin's complaints is that the minimum number of panellists on the FPP should have been four not three. It is most unlikely that the decision on this composition of the panel would be susceptible to judicial review. In particular it would be necessary to consider whether judicial review was available to challenge acts of discrimination or harassment extending over a period within the meaning of EA section 123(3). Dr Uddin, too, did not particularise the facts upon which he relied to support the allegations of discrimination and harassment which he wished to pursue before the ET and which are restricted to the allegations in his ET1.

35. Dr Vaidya made it clear that the acts relied upon as constituting discrimination and harassment were alleged to have occurred before Dr Uddin's name was struck from the Register and before he was subject to immediate suspension. The EJ erred in relying on a right of appeal under the MA when there was none in respect of the acts alleged by Dr Uddin. The EJ erred in deciding that judicial review proceedings were available to challenge the acts of which complaint was made without identifying the acts complained of and considering whether judicial review would be available to challenge them. Further the EJ erred in relying on the obiter dictum of the EAT in paragraph 31 of the judgment in Tariquez-Zaman as holding that judicial review proceedings were proceedings in the nature of an appeal by virtue of an enactment within the meaning of EA section 120(7) whose availability to Dr Uddin excluded the jurisdiction of the ET. Accordingly the EJ erred in holding in paragraph 17:

"…that the reference in s120(7) to the whole of s53 meant that the exclusion was comprehensive – i.e. that the Tribunal had no jurisdiction to hear any of the complaints listed in section 53."

36. As she had decided that the ET had no jurisdiction to hear Dr Uddin's discrimination claims, the EJ did not consider whether the claims against the individually named respondents, the Trustees of the GMC should proceed. Since in my judgment the EJ erred in holding that the ET had no jurisdiction to hear his claims, the case will be remitted to a different EJ to determine whether there is jurisdiction to hear them. The EJ to whom the matter is remitted will also determine whether the claims can be brought against the individual respondents.

Disposal

37. The appeal is allowed. The decision of the Employment Judge that there was no jurisdiction to hear Dr Uddin's complaints of direct and indirect race discrimination and harassment relating to race is set aside. The case is remitted to a different Employment Judge to consider at a pre-hearing review whether the jurisdiction of the Employment Tribunal to hear Dr Uddin's claims is excluded by Equality Act section 120(7), whether the claims were presented in time and whether he can pursue his claims against individual Trustee Members of the GMC.