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Published 28 November 2014
The Claimant is a Kazakhstan national who studied medicine in the Czech Republic. She wished to join the UK Foundation Programme (FP). As readers will know, training under the FP lasts for two years and leads to full qualification and entitlement to practise as a doctor. The FP’s eligibility rules excludes those who are expected to have obtained registration with the GMC by the start of the course. This rule excluded the Claimant because, having completed the standard six years of study in the Czech Republic, she was already entitled to register with the GMC. However, the FP guaranteed two years of paid employment. As she could not join the FP she brought a claim of indirect race discrimination under the Equality Act 2010, arguing that the registration rules put six-year students at a disadvantage and that such students are more likely to be non-UK nationals.
The employment tribunal rejected her claim. They found that the rules for access to the FP were a provision, criterion or practice which placed non-UK nationals at a particular disadvantage and that the Claimant herself suffered that disadvantage when compared with UK nationals. However, it found that the discriminatory effect was objectively justified by seven reasons advanced by the Department of Health. In particular, it accepted the Department of Health’s argument that the eligibility rules pursued the legitimate aim of providing an appropriate system of training and allowing graduates from all over the world to practise as doctors in the UK. The rules also avoided 5 year students being excluded from the FP as a result of "six year" students applying for it. This was desirable because the 5 year students would suffer real disadvantage because they would not be able to complete their F1 year, and so would not be able to obtain registration with the GMC. By contrast six year students could register with the GMC at the end of their degrees and carry out locum work. The tribunal decided that the rules were a reasonably necessary means of achieving the aims taking into account, among other things, that the rules recognise the equivalence of training across the European Economic Area and avoid six-year students having to repeat a year of training, and that they save money by not giving training to students who do not actually need it. The Claimant appealed to the EAT, who dismissed her appeal.
The EAT held, among other things, that the UK’s law did properly implement EU law. The EAT found that the tribunal had been right to ask whether the rules were a ‘reasonably necessary and proportionate’ means of achieving the Department’s of Health’s legitimate aims. The EAT also rejected the Claimant’s argument that, since there were less discriminatory means available to achieve the same aims, the rules could not be considered proportionate. In coming to this conclusion the EAT relied on Supreme Court case law, which makes clear that although the existence of less discriminatory alternatives is a factor to be taken into account in considering proportionality, the existence of such alternatives does not mean an employer, or training provider cannot establish that the working arrangement is objectively justified. The EAT also confirmed that the Department of Health, as a state authority, was not prevented from relying on a ‘costs plus’ justification argument. Had the Department of Health been trying to rely on cost, or budgetary considerations alone, this would not have been enough to justify the discrimination. The Department of Health had not put any statistics about wasted money before the tribunal, but the EAT held that the tribunal were entitled to infer that money would be wasted by training those doctors who were already entitled to register with the GMC and who did not need to complete the F1 year to qualify.
Had the Department of Health lost this case, and not appealed, the rules of eligibility for the FP would have been changed. As it defended the claim it can continue to apply the current rules to the FP. The EAT’s decision is a really helpful analysis of how to justify indirectly discriminatory working arrangements. NHS bodies should follow the Department of Health’s example by ensuring that where they operate practices, which may be indirectly discriminatory practices they identify carefully the legitimate aims they are pursuing and then address how to achieve these aims proportionately. In being proportionate it will be vital to consider any less discriminatory alternatives and. where relevant, take cost into account as a factor in the decision making.
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