General Medical Council and others v Michalak (Solicitors Regulation Authority and others intervening) Supreme Court [2017] UKSC 71

Posted by Cassandra Scarbrough on
Professionals who wish to bring a discrimination claim against their regulator can do so in the Employment Tribunal;  they are not prevented from doing so by the availability of judicial review unless there is a specific statutory right of appeal. 

Facts

Dr Michalak was dismissed from her employment as a doctor with the Mid-Yorkshire Hospitals NHS Trust in July 2008. Following her dismissal she brought an unfair dismissal claim against the Trust in the Employment Tribunal, who ultimately found that her dismissal had been unfair and contaminated by sex and race discrimination. Before her dismissal, the Trust reported her to the GMC, although they later accepted that there had not been proper grounds on which to refer her to the GMC. In the interim, however, the GMC had begun its Fitness to Practise proceedings. Dr Michalak claimed that the GMC discriminated against her in the way in which it pursued the FTP proceedings and that the GMC had been discriminatory in its failure to investigate complaints that she had made against other doctors.

Dr Michalak presented her claim to the Employment Tribunal. The GMC applied to have it struck out on the basis that the tribunal didn't have jurisdiction to hear the claims. The Tribunal struck out the complaints of discrimination and breach of contract relating to the period before 1 October 2010. However, it decided that it did have jurisdiction in relation to complaints regarding unlawful sex, race and disability discrimination after that date but not in relation to breach of contract.

The GMC appealed, arguing that section 120(7) of the Equality Act 2010 precluded jurisdiction, since judicial review afforded an appeal for the acts complained of. The Employment Appeal Tribunal agreed and allowed the appeal. An appeal against that decision was successful before the Court of Appeal. It held that the Employment Tribunal had jurisdiction to deal with Dr Michalak's complaints and remitted the case back for further case management.

Appeal

The Appeal to the Supreme Court raised an issue as to whether the availability of judicial review proceedings in respect of decisions or actions of the GMC excludes the jurisdiction of the Employment Tribunal by virtue of section 120(7) of the Equality Act.

Section 120(1)(a) of the Equality Act affords an employment tribunal the jurisdiction to determine a complaint relating to a person's work. However, section 120(7) provides that "subsection (1)(a) does not apply to a contravention of section 53 in so far as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal". Section 53 deals with discrimination by qualifications bodies (an authority or body which can confer a relevant qualification). It was agreed by all parties that the GMC is a qualifications body.

The Medical Act 1983 provides for statutory appeals against fitness to practise decisions but none of the possible statutory avenues of appeal were considered relevant to Dr Michalak's position as her series of claims of discrimination on the part of the GMC related to the manner in which it pursued its fitness to practise application and its failure to investigate her complaints against other doctors in the trust where she had been employed.

It was accepted that she could seek judicial review of the decisions that were said to constitute the various acts of discrimination. The question for the Supreme Court was whether the availability of judicial review animates the exemption contained in section 120(7).

Judgment

The Supreme Court considered the context and general purpose of the Employment Tribunal processes and noted that it would 'obviously be undesirable that a parallel procedure in the Employment Tribunal should exist alongside such an appeal route or for there to be a proliferation of satellite litigation incurring unnecessary cost and delay'. It was noted that where a statutory appeal is available, employment tribunals should be robust in striking out proceedings before them which are launched instead of those for which specific provision has been made. Employment Tribunals should also be prepared to examine critically, at an early stage, whether statutory appeals are available. However, this should be considered against the backdrop that the alternative route of appeal or review should be capable of providing an equivalent means of redress.

Following a review of the relevant jurisprudence, Lord Kerr commented that an appeal is different from a review of the legal entitlement to make a decision; it involves an examination of what decision should be taken in the dispute between the parties, thereby departing from, and overruling, Jooste v GMC [2012] EQLR 1048, in which it was said that 'an appeal simply is the opportunity to have a decision considered again by a different body of people with power to overturn it'.

Lord Kerr further notes that given the importance of judicial review, it is to be assumed that Parliament would have had the procedure in mind when it formulated the phrase now contained in section 120(7). Therefore, had it intended to remove all decisions by qualification bodies whose decisions were susceptible to judicial review from the jurisdiction of the Employment Tribunal, one would surely expect that to be provided for expressly.

It was determined that judicial review in the context of the present case is not in the nature of an appeal, nor is it a remedy provided by virtue of an enactment and therefore the appeal was dismissed.

Lord Mance, agreeing with the comments of Lord Kerr, stated that 'the Employment Tribunal offers the natural and obvious means of recourse in respect of the respondent's surviving complaints' and noted that it was unsurprising to find that, where the Medical Act 1983 does allow an appeal, it does so expressly.

Commentary

The Supreme Court stated that judicial review has its origins in common law and therefore does not exist as a result of any statute. Furthermore, judicial review is not in the nature of an appeal, as it concerned the legality of a decision, or the procedure used, which is not the same as an appeal, which entails 'the review of an original decision in all its aspects'.

This decision therefore allows professionals to make a claim against their regulators in the Employment Tribunal, which is designed to be accessible to litigants in person and is generally a cost-free jurisdiction, rather than trigger expensive and difficult judicial review proceedings in the High Court. 

About the Author

Cassandra is a Senior Associate in the Professional Regulatory team in based in our London office.

Cassandra Scarbrough
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