Hussain v King's College Hospital NHS Trust

Wednesday, 31st July 2002

This is an appeal by King's College Hospital NHS Trust ("the Trust") against a decision of the Employment Appeal Tribunal, Mr Justice Maurice Kay presiding, sent to the parties on 4th December 2001. The Appeal Tribunal allowed an appeal from a decision of an Employment Tribunal held at London South on 19th October 2001. On a preliminary point as to whether Mr Ahmed Hussain, the respondent, had a potential claim against the Trust under section 4 of the Race Relations Act 1976 ("the 1976 Act"), the Appeal Tribunal held that the respondent was entitled to pursue a claim under the section. The Appeal Tribunal also held that the respondent should be permitted to amend his claim "specifically to plead section 13 of the 1976 Act by reference to the facts upon which he already relies".

Section 4 of the 1976 Act provides:

"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another—

(a)in the arrangements he makes for the purpose of determining who should be offered that employment; or

(b)in the terms on which he offers him that employment; or

(c)by refusing or deliberately omitting to offer him that employment.

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee—

(a)in the terms of employment which he affords him; or

(b)in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c)by dismissing him, or subjecting him to any other detriment.

(3)…."

Section 13 provides:

"(1) It is unlawful, in the case of an individual seeking or undergoing training which would help fit him for any employment, for any person who provides, or makes arrangements for the provision of, facilities for such training to discriminate against him—

(a)in the terms on which that person affords him access to any training course or other facilities concerned with such training; or

(b)by refusing or deliberately omitting to afford him such access; or

(c)by terminating his training; or

(d)by subjecting him to any detriment during the course of his training.

(2) Subsection (1) does not apply to—

(a)discrimination which is rendered unlawful by section 4( 1) or (2) or section 17 or 18; or

(b)discrimination which would be rendered unlawful by any of those provisions but for the operation of any other provision of this Act."

I will consider the section 4 point first. It is that on which most reliance is placed by the respondent.

The respondent is Egyptian by origin. He came to the UK in 1991 and is a Fellow of the Royal College of Surgeons. He was employed by the Trust as a senior registrar in neurosurgery from July 1996 to February 2000. He then worked for another trust at the Atkinson Morley Hospital, but was not offered re-employment by the Trust in early 2001. His complaint, as refined following a pre-hearing discussion on 27th June 2001, was:

"That on 1st February 2001 [KCH] failed to consider [the Respondent] for one of the three vacant locum posts—3 training posts in Neuro surgery:

An act of direct race discrimination, and

An act of victimisation—the protected act being [the Respondent's] complaint to the Post Graduate Dean in writing on 12 November 1999."

The case involves a question of some general importance upon the application of the 1976 Act under the scheme by which the postgraduate training of junior doctors is arranged in the United Kingdom. The Employment Tribunal's description of the scheme in their Extended Reasons was succinct:

"The scheme for the training of doctors on consultant level in the National Health Service Hospitals is regulated by the Secretary of State under a scheme commonly referred as to the 'orange book', a guide to specialist registrar training. Hospitals would provide training facilities, and have training posts which take the form of fixed term employment contracts. Appointments to these posts are made by the Dean. In making these appointments he considers the views of a Specialist Training Committee for each area on which the employing hospitals are represented but he is not bound by their recommendations and has at least one occasion we heard about made an appointment against the wishes of King's College Hospital."

The reference to "the orange book" is a reference to a 1996 document produced by the NHS Executive on behalf of the Department of Health. It is entitled "A guide to specialist registrar training" ("the guide"). On behalf of the Trust Mr Jeans QC has elaborated on that description, and in my judgment rightly so having regard to the general point to be decided.

The facts relevant to the issue upon section 4 are not in dispute. They appear in the statement of Mrs Ann Wood, General Manager for Cardiac and Neurosciences at the Trust, who gave evidence before the Employment Tribunal as well as in counsel's submission and the somewhat brief findings of fact of the Employment Tribunal. Those findings needed only to be brief, having regard to the approach of the parties to the point of statutory construction which had arisen, but it is appropriate to set out the facts in more detail, as they provide the context for the decision.

A Dean is mentioned by the Employment Tribunal in the paragraph that I have read. The Postgraduate Deanery is a body responsible for the training of junior doctors in the United Kingdom. It was created by the Secretary of State under powers which, it is agreed, were conferred on him by section 2 of the National Health Act 1977. The Dean arranges post-graduate placements with hospitals. King's College Hospital is an accredited post-graduate training provider for specialist neurological training. King's College Hospital is operated by the Trust. The training is in-post and the doctor's contracted employment is with the Trust, but the appointment is made by the Dean. The guide, at paragraph 12, provides that the training placement will be arranged by the Postgraduate Dean in consultation with employers. Doctors undergoing post-graduate specialist training do so with a view to obtaining a certificate of completion of specialist training. Mrs Wood states:

"The Trust, as the postgraduate training provider, would be consulted about the educational content of the training placement by the Deanery in respect of the individual trainee at a Specialist Training Committee (STC) but it is the Postgraduate Dean who gives the final approval of the training placement."

As described by Mr Jeans, the Specialist Training Committee includes representatives of medical colleges, hospitals, academic institutions, as well as the trainees themselves. The Committee is a forum for discussion of the progress of trainees and is able to make representations to the Dean about the placement of individual trainees.

Mrs Wood describes the events leading to the respondent's complaint:

"9.I understand that a Special Training Committee was convened on 30th June 2000 at which Mr Hussain's progress in this targeted training placement at Atkinson Morley Hospital was reviewed. There would be representatives from King's College Hospital NHS Trust on the STC.

10. At that meeting, Mr Hussain expressed a wish to move back to King's College Hospital … for a further four months to complete his training. It has been minuted in the notes of meeting dated 19th July 2000 at page 3 that "the panel told Mr Hussain that King's College Hospital would not allow him to return and have expressed this firmly to the Committee."

11. …. The Specialist Training Committee concluded that Mr Hussain was in need of further supervision and recommended a placement for intensified supervision/repeated experience at Hurstwood Park Hospital. Mr Hussain declined the offer of a placement at Hurstwood Park Hospital despite the recommendations of the Specialist Training Committee.

12.In February 2001, three locum for training … posts became vacant at King's College Hospital."

The Employment Tribunal found at paragraph 6, consistent with that evidence, that:

"…King's did not want him back because of the disturbance he had caused there."

The Employment Tribunal also found, as also appears from their finding, that the Dean considered the views of the STC when appointments were made. In submissions on the respondent's behalf to the Employment Tribunal, which Mr Jeans accepted could be taken as a finding of fact for present purposes, it was stated that the Trust representatives "had through the Committee said to the Dean, 'We do not want him here'".

It is accepted on behalf of the Trust for present purposes that the notes of the meeting of 19th July are to be taken as an accurate record of the proceedings at the meeting. It is accepted for present purposes that the respondent was not considered for the post which became available at King's College...