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Free movement of doctors in the NHS

Edward Kemp 

In Kapenova v. Department of
Health
[2014] ICR 884, the first case of its kind in the health
sector, the EAT has held that an entry criterion for the two year Foundation
Programme for medicine graduates is a justified infringement of EU free
movement rights. Kapenova demonstrates that: (i) a claim for unjustified
infringement of free movement rights can be pursued as a claim for indirect nationality
discrimination under the Equality Act 2010 before the Employment Tribunal, and;
(ii) the approach to the justification defence under EU law and domestic law is
the same.

Background

In the UK, trainee doctors
take a five year medicine degree, followed by a two year post-graduate
foundation programme. Under the foundation programme students are entitled to
register as a doctor with the GMC after completing the first year (‘FY1’) and
to apply for speciality training after completing the second year (‘FY2’). It
is an entry criterion to the foundation programme that admission is not
available to a student who has obtained, or is expected to obtain, full
registration as a doctor by the start of the programme (‘the entry criterion’).

The claim

Ms Kapenova was a Kazakhstan
national who graduated with a medicine degree from the Czech Republic following
a six year course. She was refused a place on the foundation programme on the
basis that, as a six-year graduate, she would be eligible for full registration
as a doctor in the UK. She made a claim of indirect discrimination in relation
to nationality under the Equality Act 2010 and infringement of free movement
rights under Article 45 TFEU. Ms Kapenova contended that the entry criterion
was a PCP that put non-UK nationals wishing to move freely into the UK at a
particular disadvantage since those sharing this characteristic were more
likely to have six year medicine degrees and, therefore, were more likely to be
ineligible for a place on the programme.

Tribunal finds

The Tribunal found that the
entry criterion did put non-UK nationals at a disadvantage and was therefore
potentially indirectly discriminatory. However, the Tribunal accepted the
Department of Health’s justification defence and found the entry criterion to
be lawful.

The following aims of the
entry criterion were found to be legitimate: (i) providing a system of training
to those students who need it to obtain full registration with the GMC; (ii)
preventing the waste of resources inherent in providing training to people who
do not require it potentially at the expense of those who do, and; (iii)
internal costs, as one element of justification and therefore a costs plus
justification.

The Tribunal further held that
the entry criterion was a proportionate means of achieving those legitimate
aims. It decided that the entry criterion was a “reasonably necessary” means of achieving those aims. In reaching
this conclusion it took into account matters, including, that the entry
criterion: (i) avoids the unnecessary repetition of a year for six year
students coming to the UK, and; (ii) it recognises equivalence of training
across the European Economic Area.

EAT decides

The key points taken on appeal
were two-fold namely: (i) the legitimate aims relied on were not recognised by
EU law which limited such aims to “imperative
grounds of public policy
”, and; (ii) the EU test of justification is
stricter than the defence under domestic law: the PCP must be a necessary and
proportionate means of achieving the aim, there is no qualification of “necessary” by “reasonably” in European law.

The EAT rejected the appeal
and upheld the Tribunal decision. Slade J held that there was no basis in EU
law for restricting or precluding the justification defence advanced. In
particular, Article 45(3) TFEU, which restricts justification to grounds of
public policy, public security or public health in respect of offers of
employment, did not apply since the PCP in issue was a criterion for selection
for a foundation programme and was not an offer of employment.

Further, CJEU case law does
not require a more restrictive approach than domestic law to the defence of
justification. In reaching this conclusion, Slade J relied on Baroness Hale’s
Judgment in Chief Constable of West Yorkshire Police v. Homer [2012]
ICR 704 (para 22): “To be proportionate,
a measure has to be both an
appropriate means of achieving the legitimate aim and (reasonably) necessary in
order to do so
”. The Supreme Court could not have regarded the
qualification of “necessary” with “reasonably” as being incompatible with
European law. Accordingly, the Tribunal was not in error to apply that test.

Finally, the existence of a
less discriminatory means of achieving the respondent’s aim is not
determinative of justification of a PCP: it is simply one factor to be taken
into account in the overall assessment of whether the PCP is reasonably
necessary and a proportionate way of achieving the legitimate aims pursued
(see: Bressol [2010] ECR 1-2735 para 78 and Homer para 25).

On the facts, the Tribunal
considered such alternatives, for example: altering the entry criteria to admit
doctors who have already obtained or are entitled to obtain full registration
by the GMC. However, such alternatives would not further – and indeed would be
contrary to – the legitimate aims of providing training for those who need to
obtain full registration as doctors and of preventing the waste of resources on
those who do not need to complete FY1 to gain such registration.

In sum, the Tribunal was
entitled to conclude that the PCP was justified and there was no error in its
approach.

Wider implications

EC Directive 93/16 (now
repealed and consolidated by Directive 2005/36/EC) facilitates the free
movement of doctors and the mutual recognition of their diplomas, certificates
and other evidence of formal qualifications. This Directive was given effect in
domestic law by way of various amendments to the Medical Act 1983. There are,
therefore, likely to be many doctors who have exercised or will be exercising
free movement rights by moving from or to another EU member state for part of
their training.

EU free movement rights are
directly horizontally effective and they can therefore be relied upon by a
claimant directly in a Tribunal without any domestic implementing measures and
those rights can be invoked against any employer not just the state or
emanations of the state. In Kapanova, the Department of
Health rightly conceded in the circumstances of the claim that the relevant EU
provisions of free movement of workers are given effect in domestic law by the
Equality Act 2010 or alternatively by Article 45 TFEU which has direct
effect.

An interesting wrinkle to the
position under the Equality Act 2010 would be the following fact variation to Kapanovathe doctor was a British national who had taken a six year medical degree in
another EU member state. It is at least arguable that “nationality” in section 9 of the Equality Act 2010, for the
purposes of Part 5 (‘Work’) of the Act, is capable of being read as
encompassing EU migrant status. Unlike the Race Relations Act 1976 which was a
purely domestic provision, a central purpose of the Equality Act 2010 is to
provide a unitary framework for a wide range of EU rights. Alternatively, it is
arguable that the result is compelled by application of the EU principle of
equivalence.

Trusts would be advised to
take care not to discriminate against those who have exercised or are
exercising EU free movement rights as regards employment, remuneration and
other conditions of work and employment. Kapanova demonstrates that
the door can be opened to pursue such claims in the Employment Tribunal. There
is comfort that any such discrimination can be justified but cogent evidence is
needed. Whereas Kapanova might be the first case of its kind, it is
unlikely to be the last.

 

Ed Kemp is an equality law
specialist at Littleton. He has particular expertise in cases concerning the
NHS Terms and Conditions of Service having appeared as junior counsel in the
Supreme Court in Dr S Verma v. Barts and the London NHS Trust [2013] ICR
727. Ed represents both doctors and trusts. He also has niche expertise in cases with an international
component or European law dimension. Ed is described in Chambers & Partners
2015 as having “stand out expertise in discrimination cases” and “he deals
with complex and challenging cases with grace and determination”.

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