British Medical Association v Chaudhary (Rajendra)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Mummery,Lord Justice Latham,Lord Justice Pill,LORD JUSTICE MUMMERY
Judgment Date17 December 2004
Neutral Citation[2004] EWCA Civ 1772,[2003] EWCA Civ 645
Docket NumberA2/2004/0926(B) A2/2004/0926(Y),Case No: (1) A1/2002/1587; (2) A1/2001/1894; (3) A1/2002/0122; (4) A1/2001/2717;(5) A1/2002/0121
Date17 December 2004

[2003] EWCA Civ 645

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

Before:

Lord Justice Pill

Lord Justice Mummery and

Lord Justice Latham

Case No: (1) A1/2002/1587; (2) A1/2001/1894; (3) A1/2002/0122; (4) A1/2001/2717;(5) A1/2002/0121

Between:
(1) 1 British Medical Association
Appellant
and
Mr R Chaudhary
Respondent

MR JOHN CAVANAGH QC (instructed by the Legal Department of the BMA) for the Appellant

MR JOHN HENDY QC, MS LOUISE CHUDLEIGH AND MS PAROSHA CHANDRAN (instructed by Birchfields) for the Respondent

(2) Case No A1/2001/1894 on appeal from Miss Recorder Slade QC

2 Mr R Chaudhary –v—The Royal College of Surgeons and Ors

Mr John Hendy QC and Ms Louise Chudleigh and Ms Parosha Chandran (instructed by Russell Jones & Walker)for the Appellant

Mr Philip Mead (instructed by Berwin Leighton Paisners for the Respondent Royal College of Surgeons)

Miss Monica Carss-Frisk QC and Ms Jane Collier (instructed by the Solicitor for the Department of Health for the Respondent Department of Health)

(3) Case No A1/2001/0122 on appeal from HHJ Peter Clark

3 Department of Health & Ors –v—Mr R Chaudhary

Miss Monica Carss-Frisk QC and Ms Jane Collier (instructed by the Solicitor for the Department of Health for the Appellant Department of Health

Mr John Hendy QC, Ms Lousie Chudleigh and Ms Parosha Chandran instructed by Russell Jones & Walker for the Respondent)

(4) Case No A1/2001/2717 on appeal from HHJ Peter Clark

4 Mr R Chaudhary –v—The Specialist Training Authority & Ors

Mr John Hendy QC, Ms Louise Chudleigh and Ms Parosha Chandran (instructed by Russell Jones & Walker for the Appellant

Mr Philip Havers QC (instructed by Carter Lemon Cameron for the Respondent Specialist Training Authority).

(5) Case No A1/2002/0121

5 Dr H Platt –v—Mr R Chaudhary

Miss Gemma White (instructed by Thomas Eggar Church Adams for the Appellant Dr H Platt)

Mr John Hendy QC, Ms Lousie Chudleigh and Ms Parosha Chandran (instructed by Russel Jones & Walker for the Respondent)

Crown Copyright ©

INDEX

TOPIC PARAGRAPH

I. INTRODUCTION

Mr Chaudhary 1–3

Discrimination disputes outlined 4–9

II. GENERAL BACKGROUND TO APPLICATIONS

New Specialist Registrar grade 10–15

Mr Chaudhary's application for NTN 16–28

Southampton tribunal proceedings 29–31

STA application 32–36

Manchester tribunal proceedings 37

STA appeal panel 38–44

Manchester tribunal proceedings (STA) 45

BMA tribunal proceedings 46–47

III. PARTICULAR PROCEEDINGS, APPEALS AND APPLICATIONS

BMA proceedings, appeals and application 48–56

Southampton proceedings, appeal and application 57–69

Manchester proceedings, appeal and application 70–83

STA proceedings, appeal and application 84–120

IV.OUTCOMES: SUMMARY. 121

Lord Justice Mummery

INTRODUCTION

Mr Chaudhary

1

Mr Rajendra Chaudhary is of Indian ethnic origin. He is now 44 years old. From December 1991 until July 1995 he was a Registrar in Urology at the North Manchester General Hospital. The post was advertised in 1991 as offering "excellent training in Urological Surgery" and as being "Royal College approved." He had previously held posts as Senior House Officer and Registrar in Surgery, Senior House Officer in Orthopaedics and Honorary Registrar in Urology.

2

He qualified in India in 198He became an FRCS of Edinburgh (December 1988) and London (July 1989). He is the holder of a Diploma in Urology from the Institute of Urology in London (July 1991). Since 4 January 1996 he has had a right of indefinite residence in the UK.

3

In 1995 Mr Chaudhary left the North Manchester General Hospital to become a researcher in urology at the Christie Hospital, Manchester. From 19 February 1996 until 21 January 1997 he had a locum position in Urology at St Mary's Hospital, Portsmouth. Since then he has held locum Specialist Registrar and Consultant positions in urology at St George's Hospital, London; Leighton Hospital, Crewe; and Gartnavel General Hospital, Glasgow.

Discrimination disputes outlined

4

Between 1997 and 2000 Mr Chaudhary started four sets of proceedings in the employment tribunal. The claims were for direct and indirect race discrimination and victimisation contrary to the Race Relations Act 1976 (the 1976 Act). There are two main disputes.

5

The first dispute concerns the application of the criteria laid down in March 1996 for entry into a new grade of Specialist Registrar. The case centres on whether the Manchester post received the required official recognition from the appropriate professional body. Mr Chaudhary claims that the application of the criteria for entry into the new grade indirectly discriminated against the ethnic group to which he belongs and therefore against him. As a result he was wrongly denied transition into the new grade of Specialist Registrar. This has adversely affected the attainment of his ambition to become a Consultant Urologist.

6

The authorities responsible for applying the criteria disagree with Mr Chaudhary. They deny that there has been any race discrimination, direct or indirect, on their part. They contend that Mr Chaudhary's proper path to appointment as a Consultant Urologist is through entry into the new training grade by open competition, as opposed to the route of automatic entry for which he contends. He has not chosen to take the path of open competition.

7

The second dispute is connected to the first. Mr Chaudhary was unsuccessful in his application to the Specialist Training Authority of the Medical Royal Colleges (the STA) to enter his name on the Specialist Register maintained by the General Medical Council (the GMC). The GMC is the regulatory body for the medical profession. It keeps and maintains medical registers, including the Specialist Register. A doctor's name can only be entered on the Specialist Register if he is able to satisfy the STA that he is eligible for entry. Although entry on the Specialist Register is a procedural and legal process distinct from entry into the new training grade of Specialist Registrar, the refusal of entry to the new training grade affected the fate of his application to be entered on the Specialist Register and his eligibility for appointment as a consultant.

8

The normally smooth and swift progress of the tribunal proceedings to substantive decisions has been seriously impeded by a crop of preliminary procedural issues on time limits, jurisdiction and abuse of process. Rulings on those issues have been made by the employment tribunal at different times. They have been appealed to the employment appeal tribunal. Applications are now made to this court for permission to appeal. Directions were given that all the applications should be heard together by the same full court, with appeals to follow immediately in those cases in which permission to appeal is given.

9

It will be necessary to give detailed consideration to each set of proceedings separately. Some of the applications raise points of general interest to legal practitioners. Others raise points of particular interest to medical practitioners and to the professional bodies concerned. This is the first (and it may well be the last) occasion on which all the current proceedings are before one court at the same time. This court should take that opportunity to provide to all concerned a general overview of the current state of the issues in the litigation and of the relevant legislation. That approach is also a convenient way of putting each set of proceedings and the various applications into their proper context. In performing this task the court acknowledges its debt to counsel for the care that they have taken in unravelling the procedural complications and in simplifying the issues. This judgment has to deal with applications and appeals in four sets of proceedings. Hence its unusual length and complexity.

II. GENERAL BACKGROUND TO APPLICATIONS

New Specialist Registrar Grade

10

The dispute started with the introduction into the National Health Service (the NHS) of a new training grade system for junior doctors. It was launched on 1 December 1995. The reforms in specialist medical training followed the Calman Report on Hospital Doctors:Training for the Future. A new training grade of Specialist Registrar was to replace the existing grades of Registrar and Senior Registrar. Doctors holding existing grades had to apply for entry to the new grade. Guidance on the conditions and criteria for entry were set out in a Guide to Specialist Registrar Training (the Orange Guide) produced and published by the NHS Executive in March 1996. The Editor-in-Chief of the Guide was Professor JG Temple. With effect from 1 April 1996 the postgraduate training arrangements described in the Orange Guide came into effect in relation to the Specialist Registrar grade in urology.

11

There was a period of transition of existing Registrars and Senior Registrars to the new grade of Specialist Registrar. Application for entry to the Specialist Registrar grade in urology had to be made in the transition period, which was fixed to end on 15 July 1996. Otherwise it was necessary to enter the grade by open competition. Mr Chaudhary contended that he satisfied the published criteria for transition: he had acquired a right of residence before transition; he had the minimum entry requirements of the relevant College (FRCS); and he was holding, or had held, a substantive career registrar post with staffing and educational approval by the relevant Royal College; alternatively, he became a visiting registrar through an appointment process, which conformed to the criteria and conditions then in force for an appointment to...

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