Chaudhary v British Medical Association

JurisdictionEngland & Wales
JudgeLord Justice Mummery
Judgment Date27 July 2007
Neutral Citation[2007] EWCA Civ 789,[2007] EWCA Civ 788
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: A2/2005/2333,Case No: A2/2004/0926
Date27 July 2007

[2007] EWCA Civ 788

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

MRS JUSTICE COX PRESIDING

EAT/135/01 & EAT/0804/02

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Mummery

Lady Justice Smith and

Lord Justice Maurice Kay

Case No: A2/2004/0926

Between
The British Medical Association
Appellant
and
Mr Rajendra Chaudhary
Respondent

Mr John Cavanagh QC (instructed by Director of Legal Services British Medical Association) for the Appellant

Mr John Hendy QC, Ms Karon Monaghan and Mr Ghazan Mahmood (instructed by Linder Myers) for the Respondent

Hearing dates: 10, 13, 14, 16, 17 and 20 November 2006

Judgement

Topic

Paragraphs

A

INTRODUCTION

1 – 9

B

THE FACTUAL BACKGROUND

10 – 110

C

THE LEGAL FRAMEWORK

111 – 117

D

THE EMPLOYMENT TRIBUNAL DECISION

118 – 123

E

THE APPEAL AND CROSS APPEAL

Perversity and Inadequacy of Reasons

• Submissions

124 – 136

• Discussion

137 – 165

The Cross Appeal

166

• Submissions

167

• Discussion

168

Victimisation

169- 170

• Submissions

171 – 174

• Discussion

175– 177

Conclusions on the Appeal

178

F

OTHER ISSUES ARGUED ON THE APPEAL

179

Indirect Discrimination

180 – 181

• Submissions

182 – 198

• Discussion

199 – 203

Time Limits

204 – 205

Issues on Remedies

206

Section 57(3) of the 1976 Act

207

• Submissions

208 – 212

• Discussion

213 – 226

The Impact of the Creed Decision

227 – 237

Loss of a chance: error of law, adequacy of reasons and perversity

238 – 250

G

SUMMARY

251—253

Lord Justice Mummery

A. INTRODUCTION

1

This is the judgment of the court to which all members of the court have contributed. The appeal arises from two decisions of an employment tribunal (ET), chaired by Ms AFW Woolley, sitting in Manchester. In the first decision, the ET held that there was liability for indirect race discrimination contrary to section 1(1)(b), and for victimisation contrary to section 2, of the Race Relations Act 1976 (the 1976 Act). The ET dismissed the claim for direct race discrimination. The second decision was on remedies and assessed damages for discrimination and victimisation. The tribunal ordered the appellant, the British Medical Association (the BMA), a professional body which acts as a trade union for doctors, to pay £814,877.41 (inclusive of interest) to Mr Rajendra Chaudhary, who is of Asian origin and was a member of the BMA and a Fellow of the Royal College of Surgeons. We understand that this is the largest sum ever awarded in a race discrimination case.

2

The setting of Mr Chaudhary's race discrimination claims against the BMA and others is the reform of postgraduate medical training implemented between 1989 and 1996. The discrimination alleged against the BMA was based on its perceived failure to support Mr Chaudhary in his race discrimination claims against the regulatory medical bodies and persons responsible for decisions affecting Mr Chaudhary's progress (or rather his lack of progress) through the reformed system. Mr Chaudhary claimed that discriminatory decisions of the BMA and others seriously damaged his prospects of a career as a consultant urologist.

3

Race discrimination in any form, direct and indirect, was and is strongly denied by the BMA. Its case is that it treated Mr Chaudhary in the same way that it treated, or would treat, its other members in the same or similar circumstances; it investigated the merits of his discrimination claims against the regulatory medical bodies and persons; it concluded that there was no real prospect of successfully challenging the lawfulness of the decisions that Mr Chaudhary alleged were racially discriminatory; and it informed him that it could take no action on his behalf, as the BMA does not support its members' claims, unless they have a real prospect of success.

4

The appeal to this court is from an order made by the Employment Appeal Tribunal (EAT) (Mrs Justice Cox presiding) on 24 March 2004 dismissing appeals by the BMA.

5

The BMA appeals to this court with permission granted by the EAT, though on limited grounds. This court extended permission to appeal to cover the grounds refused by the EAT. At the heart of the BMA's case is its contention that the findings of fact on which the holding of indirect discrimination was based were perverse. There is also a cross-appeal by Mr Chaudhary against the rejection of his direct race discrimination claim, only to be pursued if the BMA succeeds in its appeal against the tribunal's rulings on indirect discrimination.

6

One of the issues argued on the appeal (whether damages are recoverable for unintentional indirect discrimination) raised a potential question on the compatibility of UK discrimination law with European Community law, which was not argued in the hearings below. On this point, the Secretary of State for Local Government and the Communities sought and was granted permission to intervene in the appeal. Written submissions were received.

7

This appeal was listed for hearing immediately after Mr Chaudhary's application for permission to appeal in a closely-related race discrimination case ( Chaudhary v. Secretary of State for Health). His claim against the Secretary of State for Health was heard by a different ET sitting in Manchester, but after the decisions of the ET and the EAT in his case against the BMA. Mr Creed was the chairman of the employment tribunal and the decision has been referred to as 'the Creed decision'. It is so called in this judgment.

8

We announced the court's refusal of permission to appeal from the Creed decision before we began to hear the substantive BMA appeal. Finality has been reached on the litigation against the Secretary of State, as there is no appeal from a decision of this court refusing permission to appeal to it. We also announced that the judgment of the court refusing permission to appeal against the Creed decision would be handed down at the same time as the judgments on the BMA appeal. The judgments should be read together and also against the background of the earlier judgments of this court referred to in paragraph 4 of the judgment on the permission application.

9

We say at this stage that we have determined that the appeal must be allowed and the award of compensation set aside. The essential ground is that no reasonable tribunal, properly directing itself on the law and on the evidence, could have concluded that the BMA was guilty of indirect race discrimination against Mr Chaudhary or victimisation of him. The BMA's failure to support Mr Chaudhary's claims for race discrimination against the medical regulatory authorities was not on the ground of his race; nor was it the result of the application to him of a discriminatory requirement or condition. The crucial point is that Mr Chaudhary's allegations of race discrimination against him by the regulatory medical bodies were not well-founded in fact or law. On a proper understanding of all the evidence and the correct application of discrimination law, that fact, rather than any treatment tainted by race discrimination, was the explanation for the impugned decisions of the BMA relating to its advice, assistance and support. The result is that the BMA's appeal on liability for indirect discrimination will be allowed and that all other issues on liability and damages in the appeal and the cross-appeal will fall with the setting aside of the ET's decision.

B. THE FACTUAL BACKGROUND

10

This exposition of the facts will necessarily be long. We take it primarily from the decision of the ET but, in places, it is supplemented by references to correspondence and BMA internal memoranda to which the ET did not expressly refer. We have inserted these references (to which we were taken in the course of argument) because they are not disputed and because they provide a more complete picture of the dealings between Mr Chaudhary and the BMA than would otherwise be available.

11

Mr Chaudhary was born in India in May 1959. He qualified as a doctor there in 1981. In 1987, he came to the United Kingdom and took work as a senior house officer. In 1988, he obtained his fellowship of the Royal College of Surgeons (FRCS) of Edinburgh. In 1989, he became an FRCS (London) and, in 1991, he obtained a diploma in urology. He held a registrar post in general surgery in Scotland from 1989 to 1991. For 7 months in 1991, he held an honorary registrar post in urology at Peterborough.

12

In 1991, he answered an advertisement, which appeared on 12 October 1991, in which the North West Regional Health Authority (NWRHA) offered a vacancy for the post of registrar in urology at North Manchester General Hospital. The advertisement stated that the post offered 'excellent training' in urological surgery and was 'Royal College approved'.

13

In open competition and after an interview by a properly constituted appointments panel, which included a representative of the Royal College of Surgeons, Mr Chaudhary was offered this post. A letter of 26 November 1991 set out the conditions of appointment and the job description. From December 1991 to July 1995, Mr Chaudhary worked as a registrar in urology at North Manchester General Hospital.

14

According to successive editions of the Royal College of Surgeons' publication “Recognised Hospitals and Appointments” between 1982 and 1994, the post...

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