Appeal No. UKEAT/0270/06/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 July 2006

Before
HIS HONOUR JUDGE BURKE QC
(SITTING ALONE)

DR C WAGUNYANYA	APPELLANT

MEDICAL DEFENCE UNION SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Dr Wagunyanya
(The Appellant in Person)	
For the Respondent	Miss Jane Tracy Forster
(of Counsel)
Messrs Fladgate Fielder Solicitors
25 North Row
London
W1K 6DJ	

Summary
Practice and Procedure – Application/Claim
The Claimant, a doctor, put forward a complaint to the Tribunal that the M.D.U, his professional body, had been guilty of race discrimination in the manner in which they had provided or failed to provide services to him in connection with disciplinary proceedings against him.  The Tribunal rejected his complaint on presentation on the basis that the MDU did not fall within s11(1) of the 1976 Act and similarly rejected his application for a review.

Held on appeal that in the light of decision of the Court of Appeal in Sadek v PMS [2005] the Tribunal had erred in law.  Any factual differences between the MDU and the MPS had to be considered on evidence by the Tribunal.  The claim should not have been rejected at the outset.

HIS HONOUR JUDGE BURKE QC

1.	This is an appeal brought by Dr Wagunyanya against the decision of the Employment Tribunal, sitting at London (South) in the form of Mr Hall-Smith sitting alone as Chairman, to reject Dr Wagunyanya’s claim of race discrimination on the part of the Respondents, who for short I will call the MDU, as they are commonly described, although I shall have to come in a moment or two to the formal name or title of the Respondents.  The grounds on which Mr Hall-Smith rejected the claim at its very initiation, for it never got past the point of being accepted by the Tribunal, were that there was no jurisdiction in the Tribunal to hear the claim.  

2.	There is a substantial history which has led the parties to this full appeal hearing today.  I will endeavour to summarise that history briefly for present purposes.  In July 2002 Dr Wagunyanya was, as a junior doctor, placed on the Locum Bank for the Queen Elizabeth Hospital in Woolwich, South London.  On 28 June 2003 he was suspended by that hospital’s NHS Trust following a complaint regarding his professional competence; and disciplinary proceedings were instituted.  Dr Wagunyanya was a member of and, as such, sought the assistance of the MDU; the MDU agreed to provide such assistance and represented him at the disciplinary hearing.  They were unsuccessful; Dr Wagunyanya was removed from the Locum Bank.  His appeal, in which he was again represented by the MDU, failed.  He then instituted Employment Tribunal proceedings against the Trust.  Those proceedings were, however, dismissed at a pre-trial review on 29 March 2005, on the grounds that he had abandoned his unfair dismissal claim and that it was not just and equitable that he should be allowed to pursue a race discrimination claim against the trust, which was sought to be added by amendment outside the prima facie time limit set out in Section 68 of the Race Relations Act 1976.  By this time Dr Wagunyanya was representing himself.  His appeal against the Tribunal’s dismissal of that claim was itself dismissed by the Employment Appeal Tribunal on 24 February 2006.  
3.	By that stage Dr Wagunyanya was expressing dissatisfaction at the way in which he had been represented by the MDU.  He set out detailed complaints in correspondence.  The MDU replied denying the validity of the complaints; and there were meetings and further correspondence into which it is not necessary to go.  In November 2005 Dr Wagunyanya asked the MDU to assist him in his appeal, but the MDU declined to do so.  

4.	On 6 March 2006, very shortly after the Employment Appeal Tribunal had dismissed Dr Wagunyanya’s appeal against the rejection of his race discrimination claim against the Trust, Dr Wagunyanya issued the present proceedings in the Tribunal against the MDU.  He claims in those proceedings that the MDU have been guilty of direct and indirect race discrimination by failing to take up, handle and pursue his case in the disciplinary proceedings and subsequent proceedings adequately or appropriately.  The MDU had not acted in the Employment Tribunal proceedings against the Trust; they had, as I have indicated, been asked to act in the appeal but had declined to do so.  

5.	The Tribunal rejected Dr Wagunyanya’s claim form by a letter dated 8 March 2006, which, in so far is relevant, says:- 

“Your claim form has been referred to a Chairman, Mr Hall-Smith, who has decided that your claim cannot be accepted for the following reasons, the Tribunal does not have power to consider the claim.”  

6.	Dr Wagunyanya wrote to the Tribunal protesting about this rejection of his claim.  His letter was treated as an application for a review of the rejection of his claim; and by a further letter which bears the date 21 February 2006 but must in truth have been written on 21 March 2006, as it seems to me, the same Chairman declined again to accept the claim.  He said:-

“The Chairman remains of the view that the Tribunal has no power to accept your claim.  He points out that you were not in an employment relationship with the Medical Defence Union and that you do not appear to claim that the MDU was an organisation which refused you for membership pursuant to Section 11(2) of the Race Relations Act 1996, or that the MDU discriminated against you as a member of the MDU in the respects set out in Section 11(3) of the Act.  Further you do not appear to allege that the MDU subjected you to harassment in relation to membership of the MDU or application for membership of the MDU.  Finally it does not appear to the Chairman, that your claim falls within Section 11(1) of the Act, on the ground that the MDU is a trade union or an organisation of employers or any other organisation whose members carry on a particular professional trade for the purposes of which the organisation exists.  Accordingly he does not consider there are grounds for reviewing his decision; the Tribunal does not have power to consider your claim.”

7.	Section 11 of the Race Relations Act 1976 reads as follows:

“11.	Trade Unions etc
	(1)	This section applies to an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists.
	(2)	It is unlawful for an organisation to which this section applies, in the case of a person who is not a member of the organisation, to discriminate against him-
		(a)	in the terms on which it is prepared to admit him to membership; or
(b)	by refusing, or deliberately  omitting to accept, his application for membership.
	(3)	It is unlawful for an organisation to which this section applies, in the case of a person who is a member of the organisation, to discriminate against him-
(a)	in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(b)	by depriving him of membership, or varying the terms on which he is a member; or
		(c)	by subjecting him to any other detriment.”

8.	Dr Wagunyanya challenges the Tribunal’s decision on two principal grounds, which can be distilled from his Notice of Appeal and skeleton argument.  The first is that the MDU is an organisation which falls within section 11(1) of the Race Relations Act 1976 and that the Chairman was wrong to conclude that it did not.  The second is that, although he does not have a claim under section 11(2) of the Act, he complains that the MDU discriminated against him in the way in which they afforded him access to their services and facilities or by refusing or deliberately admitting to afford him access to them and that the Chairman was wrong to conclude that he did not appear to be making a complaint which could fall within section 11(3).  9.	So far as the first ground is concerned, the Chairman did not refer to and may have been unaware of the decision of the Court of Appeal in Sadek v the Medical Protection Society, (2005 IRLR 57).  In that case Dr Sadek became the subject of disciplinary proceedings brought against him by his employers.  He was a member of a medical protection society, MPS, who had advised him about and represented him at the disciplinary proceedings, including his appeal, and who advised him about Employment Tribunal proceedings against the employing Trust.  Dr Sadek claimed to have been the subject of race discrimination and victimisation on the part of MPS, arising out of the way in which the MPS had advised and assisted him.  The Employment Tribunal, on a preliminary issue, held that MPS came within the first of the 3 categories of organisations referred to in section 11(1) i.e. it was an organisation of workers.  The Employment Appeal Tribunal, on MPS’s appeal, expressed no view as to whether the Employment Tribunal had been right in their view that MPS came within that category, but concluded that MPS came within the third of the 3 categories in section 11(1), i.e. that it was an organisation whose members carry on a particular professional trade for the purposes of which the organisation exists.  

10.	The Court of Appeal dismissed MPS’s further appeal.  Lord Justice Kay, with whom Lord Justice Latham and, the President of the Family Division, Sir Mark Potter agreed, held (1) that MPS was an organisation of workers falling within the first category in D11(1); (2) that it was only necessary for a Tribunal to go on to consider the second and third categories if the organisation concerned did not fall within the first; (3) that MPS, if necessary, would be held to fall within the third category.  

11.	Miss Tracey Forster, who has appeared on behalf of the MDU on this appeal today, does not suggest that it matters whether this present appeal is treated as an appeal against the initial rejection by the Chairman of Dr Wagunyanya’s claim or against the refusal of his application of a review or indeed both; and indeed, in my judgment, it does not matter, because the same question arises on each; the Chairman came to the same conclusion each time; and what is important is whether Dr Wagunyanya’s claim should have been stopped in its tracks as it was.  

12.	Miss Tracey Forster, with professional candour, accepts that the Chairman appears to have failed to take into account the decision of the Court of Appeal in Sadek.  On behalf of the MDU she wishes to reserve the ability to challenge the correctness of the decision in Sadek; but she acknowledges that, here in the Employment Appeal Tribunal, I am bound by the decision in Sadek; and while she does not, on behalf of her clients, concede that the decision of the Chairman in the present case as to section 11(1) was wrong, she has not sough to present any arguments to me to suggest that it was right.  It is not suggested and in my judgment it is not capable of being suggested that it is, on the facts, impossible for the MDU to be regarded in a similar manner as was the MPS in Sadek.  Miss Tracey Forster says that there are factual differences between the constitution of the MPS and that of the MDU which may lead to the conclusion that the position of the two bodies can be distinguished one from the other and that the effect of Sadek would not be such as to bring the MDU within section 11(1); but of course she acknowledges that I cannot possibly resolve those issues of fact today and that they will have to be resolved in due course by the Tribunal.  If I decide that the Chairman was wrong to exclude Dr Wagunyanya’s claim on the basis that it could not be said that the MDU falls within section 11(1), the matter must go back to the Tribunal for factual determination.  

13.	In my judgment the Chairman did err.  He either did not know of Sadek or had omitted to recall it.  Had he been aware of Sadek, I have no doubt that he would not have reached the decision that he did in relation to section 11(1).  I am satisfied that MDU could properly be said to fall within section 11(1), at least until the detailed facts about MDU are known and that, on that basis, Dr Wagunyanya’s appeal must succeed.  But of course his success on that basis alone would not get him home on this appeal, unless the Chairman was also in error in concluding, as he did, that Dr Wagunyanya’s claim was not capable of falling within section 11(3).  So far as that is concerned, Miss Tracey Forster takes me to the claim form itself.  She points out that, in substance, the complaints there set out, are complaints that the quality of the service which was provided by the MDU to Dr Wagunyanya was inadequate; in effect, she submits, this is a professional negligence claim.  She submits that nowhere does Dr Wagunyanya assert that the quality of the service with which he was provided was different from that which would have been provided to somebody of a different race.  I am not persuaded by those submissions, carefully as they were put.  On the face of the claim form appears the instruction, “please tick the box or boxes to indicate what discrimination you are complaining about”; and Dr Wagunyanya has set out, in answer, “discrimination: race”.  He is then asked to describe the incidents which he believes amounted to discrimination; and he sets out in answer to that, as “discrimination incidents” the history of what happened and his complaints about the service provided to him by MDU.  

14.	It is, in my judgement, wholly clear from the claim form that what Dr Wagunyanya is there alleging is that MDU discriminated against him in the way in which they afforded him access to benefits facilities or services or by refusing or deliberately omitting to afford him access to those services.  It is true that he does not say, ‘and I would have got a better service had I been of another race’; but that that is the inference from his allegation is clear; both the Employment Tribunal and the Employment Appeal Tribunal familiarly see claim forms in which such words are not spelt out and do not need to be spelt out.  The nature of the claim appears sufficiently, as I see it.  

15.	Thus, in my judgment, the Chairman erred in his view as to whether or not the claim of Dr Wagunyanya fell within section 11(3).  He was wrong in law to have refused to accept the claim.  It should have been accepted and permitted to proceed.  
16.	The question arises “what should now happen”?  It is clear that there may be a number of interlocutory matters that the Tribunal will have to decide before any full hearing on the merits of Dr Wagunyanya’s complaints, should matters ever come to that, can be heard.  Firstly there are, says Miss Tracey Forster and I accept it, factual issues which falls to be determined on evidence about the constitution, nature and functions of MDU, as to whether the MDU is an organisation of workers or an other organisation whose members carry on a particular professional trade for the purposes of which the organisation exists, so as to fall within section 11(1) of the act.  Those factual issues will have to be determined by the Tribunal.  Secondly, Miss Tracey Forster says that there is a time issue; when they come to file a response, the MDU will want to assert, no doubt in addition to their denial of discrimination, that the claim is out of time.  Thirdly they will want to say that there is no merit in the claim and that the Tribunal should recognise that by making appropriate and interlocutory orders.  I have suggested, in the course of argument, that in those circumstances the correct course is for this case to be remitted to the Tribunal as an accepted claim and that, once MDU’s response appears, for the Tribunal then to hold a case management discussion at which directions as to how those interlocutory issues are to be resolved can be given.  For instance the Tribunal will want to consider whether they can all be dealt with at the same time or not, bearing in mind that one of them, the first of the issues which I have identified, will need evidence which may be quite extensive, whereas the others will or may not.  It does not seem to me that I can give any further helpful directions to the Tribunal which will have to decide for itself how to proceed in the light of the issues which I have described.  

17.	There is one further matter that I need to mention.  It has been pointed out that the claim has been brought against Medical Defence Union Services Ltd, whereas Miss Tracey Forster says that the correct Respondent should be not Medical Defence Union Ltd but one or other of two limited companies which make up what I have been describing, colloquially perhaps, as the MDU; they are MDU Services Ltd, (not Medical Defence Union Services Ltd) and Medical Defence Union Ltd; and I am told that there is no objection to the amendment of the claim form to name both of those companies as Respondents so that Dr Wagunyanya is technically covered, whichever of them should turnout to have been responsible for the actual handling of his case; and subject to what Dr Wagunyanya has to say (for I have not asked him about that) I propose to order that the claim form stand amended in that manner.  

18.	For those reasons the appeal is allowed and this claim is restored to the Tribunal for the Tribunal to deal with it in the manner which I have proposed.