Surgeon wins £815 000 from BMABMJ 2004; 328 doi: https://doi.org/10.1136/bmj.328.7443.786-a (Published 01 April 2004) Cite this as: BMJ 2004;328:786
An Indian surgeon who blames racism for blocking his career in the NHS has won nearly £1m ($1.8m; £1.5m;)in damages, costs, and interest from the BMA for failing to support him in bringing race discrimination claims.
The BMA has lost an appeal against an employment tribunal ruling that it was guilty of indirect race discrimination against Rajendra Chaudhary and must pay him a record £815 000. With interest since the tribunal ruling nearly two years ago, the final figure is just under £1m.
The Employment Appeal Tribunal upheld the Manchester tribunal's finding that the BMA, though willing to support members in racism claims against employers, was not prepared to “take on” the royal colleges, their specialty advisory committees, the postgraduate deans, or the specialist training authority.
The appeal tribunal agreed that, while the association was not guilty of direct race discrimination, this stance amounted to indirect discrimination because a disproportionate number of Asian members were affected.
The case is the first of a raft of race discrimination claims against the BMA. Five are due for hearing at the Manchester tribunal in May. In a further two, proceedings have been issued but hearings are not yet scheduled, and the association has just been notified of an eighth claim.
In yet another case, a member who lost a discrimination claim against the association is appealing to the appeal tribunal.
In Mr Chaudhary's case, the appeal tribunal upheld the tribunal's finding that the BMA was also guilty of victimisation in refusing to reconsider supporting his claims once it learned that he was considering launching a race discrimination case against the association.
His compensation also includes what is thought to be the first award of aggravated damages in an indirect discrimination case—£5000 in this case, upheld by the appeal tribunal, for the association's “high handed” conduct and “institutional denial.”
Mr Chaudhary, who came to the United Kingdom after qualifying in India, sought the BMA's help in bringing claims against the Royal College of Surgeons (RCS), the postgraduate dean for Wessex, the specialty advisory committee for urology of the RCS, and the specialist training authority.
He gained the FRCS (fellowship of the RCS) in England and Scotland, and spent three and a half years as a registrar in urology in Manchester, moving to a locum senior registrar post. The post was said to be “royal college approved,” and in 1992 it appeared in an RCS list as providing “acceptable training.”
After obtaining settled status in the United Kingdom, he applied to the postgraduate dean to be admitted to the specialist registrar grade, the route to an NHS consultant's post. But he was told his Manchester post had not been approved by the specialty advisory committee for urology and he would have to start training all over again.
The Employment Appeal Tribunal said the BMA had allowed Mr Chaudhary's forensic accountancy evidence as to the losses he suffered to go “effectively unchallenged” at the earlier tribunal in Manchester. The association's arguments were principally directed to establishing that he “was not entitled to any compensation at all.”
The BMA could not, therefore, seek at the appeal tribunal to criticise the Manchester tribunal's approach to compensation and to raise issues that should have been raised at the Manchester tribunal.
Mr Chaudhary developed a stress related psychiatric illness and is currently unemployed. The original tribunal found that the BMA's discrimination “materially added to and exacerbated his existing stresses, which all together caused his illness.”
The BMA's secretary, Jeremy Strachan, said: “A preliminary review of the [Employment Appeal Tribunal] judgment suggests there may be good grounds for a further appeal to the Court of Appeal. Since the original tribunal decision, we have supported Mr Chaudhary against various NHS authorities on three racial discrimination appeals and an employment tribunal at a cost of over £150 000.
“Since 1 October 2003, BMA members with work related discrimination claims have been referred to an external firm of solicitors, Irwin Mitchell. Last year Irwin Mitchell obtained substantial damages for four BMA members in race discrimination ases and a further award in February this year. An additional 22 racial discrimination claims are currently being handled by the firm.”
Mr Chaudhary told the BMJ: “I'm very pleased about the fact that the employmentappeal tribunal has upheld the decision. I'm still disappointed that the BMA has not quite accepted the very well articulated and reasoned decision from the tribunal and it just wants to carry on fighting.”