Law Report: Race bias complaint can proceed: Rovenska v General Medical Council Employment Appeal Tribunal (Mr Justice Mummery, Mr R Jackson and Mrs M E Sunderland), 16 September 1994

A complaint that the GMC's practice for limited registration of medical practitioners with overseas qualifications constituted unlawful racial discrimination was a complaint about a continuing act of discrimination and therefore the complaint cannot be barred by any time limits while the practice is in operation.

The Employment Appeal Tribunal allowed an appeal by the complainant, Dr Elena Rovenska, from an industrial tribunal's decision that it had no jurisdiction to entertain her complaint of unlawful racial discrimination.

Dr Rovenska, a Czech by birth but now resident in the United Kingdom, obtained her primary medical qualification in Czechoslovakia.

Her qualification is recognised for limited registration in the UK by the GMC, which under the Medical Act 1983 is responsible for the registration of general practitioners and has set out a scheme for limited registration by which she also has to pass the professional linguistic assessment board test of English and medical knowledge.

She failed the test in 1984 and 1985. On her request for registration in 1991, the GMC by a letter dated 2 December 1991 said that a precondition for limited registration would be her passing the test.

She consulted the Greenwich Council for Racial Equality who drew the GMC's attention to the categories of exemption from the test in the GMC's scheme.

On 10 January 1992 the GMC replied stating that it had considered her case for exemption under the scheme in 1985 and had found no ground for exemption. She received the letter on 15 January.

On 31 March 1992 she presented her complaint of unlawful racial discrimination against the GMC.

The industrial tribunal decided that the three-month time limit for bringing a complaint ran from 2 December 1991 so that it was not presented in time.

Heather Williams (Plumstead Law Centre) for Dr Rovenska; Timothy Straker (Field Fisher Waterhouse) for the GMC.

MR JUSTICE MUMMERY said that most of the appeal was concentrated on identifying the act complained of and debating whether it should be characterised as a one-off act or a continuous act extending over a period.

An act did not extend over a period simply because the doing of the act had 'continuing consequences' over a period. An act did extend over a period of time if it took the form of a rule, scheme, practice or policy in accordance with which decisions were taken from time to time: for example, an employer's pension scheme or a scheme for providing for mortgage subsidies.

Without expressing any view on the merits of the case, the industrial tribunal's decision on jurisdiction was flawed by an error of law. The substance of Dr Rovenska's complaint was that the GMC had applied a requirement or condition that applicants for limited registration must bring themselves within one of the exemptions specified by the GMC and that was alleged to constitute indirect discrimination against Eastern European nationals.

The act complained of did extend over a period, namely the period during which the GMC operated the rules which set out the requirements applied by the GMC to determine whether or not an applicant was granted an exemption.

A decision to refuse an exemption was pre-determined by the rules regarding exemption. As long as the GMC acted on the rules, Dr Rovenska was bound to be refused exemption.

Her complaint was not therefore a once and for all refusal of an exemption. It was about the maintenance and operation of a scheme for exemption which extended over a period, that period being the currency of the scheme or rules.

The act complained of was not treated as done until the end of that period. Until the scheme was revoked or revised in a significant manner, Dr Rovenska might bring a claim which could not be barred by time limits since those limits had not even started to bite.

The appeal was allowed.