The principle idea behind the EU is an internal market within its member states. This means that states are required to allow the free movement of people, goods, services and capital within its borders and beyond. The most contentious of these four freedoms has of course been the free movement of people, fuelled by the media with statistics and horror stories. The Eurospectic debate and the prospect of an in-out referendum have led promises of migration curbs with harsh words from the leaders of the EU in response. Does the principle of free movement of people really go as unchecked as the media furore and political panic seem to suggest?

The recent case of Kapenova v Department of Health is a good example of how the state can nevertheless (sometimes) use EU law to restrict the free movement of workers.

Ms Kapenova studied medicine in the Czech Republic for six years. She wanted to come to the UK to do the two-year Foundation Programme – the usual follow-on for students who have studied in the UK on a five-year medical course. The programme is such that: after one year (F1) participants are eligible to register with the General Medical Council and after two years (F2) they get a certificate allowing them to specialise.

The rules as to admission to this Foundation Programme state that it is not open to those who had or were eligible to register with the GMC already.

Having a six-year degree under her belt, Ms Kapenova was eligible to register with the GMC and so was refused entry onto the foundation programme. As a result, Ms Kapenova made a claim in the Employment Tribunal on the basis that the rule limiting admission to the course to those who were not eligible for GMC registration constituted indirect discrimination against non-UK nationals such as herself. It was therefore contrary to the principle of free movement of workers – something the UK must guarantee under EU law.

The Employment Tribunal rejected her claim and found that whilst there was indirect discrimination, it was justified. The tribunal balancing the discriminatory effect on Ms Kapencova against the aim of UK in preventing her (and those like)participating in the F1 year. This aim was to train doctors from the UK and the rest of the world to enable them to register with the GMC and work for the NHS. Allowing those who were entitled to register with the GMC already would incur unnecessary costs and waste resources.

Ms Kapenova then appealed to the Employment Appeal Tribunal (EAT) and was unsuccessful.

Indirect discrimination, can be justified by the state provided it is a ‘proportionate means of achieving a legitimate aim.’ This requires the tribunal to consider whether the discrimination is “reasonably necessary).”

The key things to consider in this case were that:

  • Ms Kapenova was not entirely refused the right to come to UK and work as a doctor. Whilst she could not do the F1 programme, she could start with the F2 programme or apply for an F1 locum role.
  • However, Ms Kapenova does lose out on the full Foundation Programme, which offered two years of guaranteed paid work and could find it difficult to find an F2 level role without NHS experience on the F1 programme.
  • The UK was trying to ensure that UK doctors could complete their medical training to register with the GMC and work for the NHS. If those who could already register with the GMC were allowed on the F1 course, it would cost more and waste resources.

The EAT found that the Department of Health was entitled to discriminate in this way because the aim outweighed the discriminatory effect of the act. In cases like these, the UK’s national interests are still protected against the principle of free movement of workers.