Law Report: Doctor cannot bring racial bias complaint: Khan v General Medical Council. Employment Appeal Tribunal (Mr Justice May, Mr D G Davies and Miss C Holroyd). 18 March 1993.

The right under section 29 of the Medical Act 1983 of a doctor with limited registration as a medical practitioner to apply for a review of the General Medical Council's refusal of full registration is a proceeding 'in the nature of an appeal' and therefore the doctor is excluded by section 54(2) of the Race Relations Act 1976 from bringing a complaint of race discrimination to an industrial tribunal.

The Employment Appeal Tribunal dismissed an appeal by Dr M Khan from an industrial tribunal's decision that Dr Khan was not entitled to present a complaint of race discrimination under section 12 of the Race Relations Act 1976.

Dr Khan, who qualified as a doctor in Pakistan, was granted limited registration as a medical practitioner in the United Kingdom in 1980. His applications for full registration were refused by the General Medical Council in 1985 and 1988. On his applications under section 29 of the Medical Act 1983 for a review of each refusal, the review board for overseas qualified practitioners upheld the GMC's decisions. He complained under section 12 to an industrial tribunal of indirect racial discrimination by a body conferring professional qualifications.

Section 54(2) of the 1976 Act provides that a section 12 complaint of an act in respect of which 'an appeal, or proceedings in the nature of an appeal, may be brought under any enactment' cannot be presented to an industrial tribunal. The industrial tribunal decided that the right of review under section 29 of the Medical Act was a proceeding 'in the nature of an appeal' within section 54(2) of the 1976 Act and Dr Khan was not entitled to bring a complaint.

Thomas Kibling (Pictons) for Dr Khan; Timothy Straker (Field Fisher Waterhouse) for the GMC.

MR JUSTICE MAY said that Dr Khan's appeal was against the refusal to confer a professional qualification, not against a refusal to adjudicate that there was unlawful racial discrimination and therefore R v Army Board of the Defence Council, Ex p Anderson (1991) ICR 537 was not directly applicable.

Proceedings which came within section 54(2) would be expected to have power to confer the professional qualification refused and in considering whether to do so to take account of and eliminate any unlawful discrimination which might have infected the original decision. It was a necessary characteristic of an appeal that its outcome was capable of reversing the original decision. But that was not by itself sufficient. The proceedings must also have characteristics of fairness enabling the person who wanted the original decision changed to make his case.

The statute and rules provided for the applicant to be given the written reasons for the original decision; for the applicant to present his case; for an oral hearing in some circumstances automatically, but in any event when the chairman considered it desirable; for representation if there was an oral hearing; for the board to state its reasons in writing; and for the applicant to be notified of the reasons and the decision taken.

Proceedings before the review board under section 29 of the Medical Act 1983 were 'an appeal, or proceedings in the nature of an appeal' and the tribunal's decision was correct. Therefore the appeal failed.