Dr Ewa Michalak claimed that the General Medical Council discriminated against her in the way it pursued fitness to practise proceedings and in failing to investigate complaints she had made about other doctors. The Council argued that the Employment Tribunal had no jurisdiction because she could seek judicial review instead. The Supreme Court held that judicial review is neither an appeal nor a proceeding in the nature of an appeal made available by an enactment, so section 120(7) of the Equality Act 2010 did not exclude the tribunal.
The complaints and the question of jurisdiction
Dr Ewa Michalak was employed as a doctor by the Mid-Yorkshire Hospitals NHS Trust from April 2002 until she was dismissed in July 2008. An Employment Tribunal found the dismissal unfair and found that sex and race discrimination and victimisation had contaminated it. She received compensation and a public apology. Before that decision, the Trust referred her to the General Medical Council. The Trust later accepted that there were no proper grounds for the referral, and she remained registered. In the meantime the Council began fitness to practise proceedings under Part V of the Medical Act 1983.
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Dr Michalak alleged discrimination by the GMC in the conduct of proceedings and its handling of complaints about other doctors. These were separate allegations from the findings about the Trust. The tribunal struck out the earlier complaints and the contractual claim, but held that it could hear the surviving discrimination complaints.
The Council appealed on the ground that section 120(7) of the Equality Act 2010 excluded the tribunal because judicial review was available. Langstaff P in the Employment Appeal Tribunal agreed. The Court of Appeal, Lords Justices Moore-Bick, Kitchin and Ryder, held that the tribunal had jurisdiction and remitted the case for case management. The Supreme Court considered only that point.
Section 120(7) requires a statutory appeal
Section 120(1)(a) gives an employment tribunal jurisdiction over a complaint relating to a person’s work. Section 120(7) removes it for discrimination by a qualifications body 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. The Council is a qualifications body. It regulates doctors under the Medical Act 1983 and can confer the registration needed for medical practice.
Some of its decisions can be appealed. Sections 38 and 40 allow an appeal to the High Court against erasure, suspension or conditions, and the High Court may quash the decision, substitute another or send it back. An interim suspension can also be challenged there. Dr Michalak could use none of those routes. Her complaint was not about action on her registration. It concerned the manner of the fitness to practise proceedings and the failure to investigate her complaints. No statutory appeal existed for those acts, although judicial review did. Lord Kerr, with whom Lady Hale, Lord Mance, Lord Wilson and Lord Hughes agreed, held that both conditions still had to be met. Judicial review had to be in the nature of an appeal, and available by virtue of an enactment. Exclusion is justified where a statutory appeal can give equivalent redress. It is not justified by the mere existence of a different court procedure.
What an appeal can decide
In ordinary usage, an appeal re-examines the original decision and may substitute a fresh conclusion. Judicial review challenges the legality of the decision or the procedure used to reach it. Examining proportionality, where that is possible, is still not a full review of the merits. Whether discrimination occurred must be decided by an open inquiry, not merely by asking whether the Council’s reasons were legally open to it. If judicial review succeeds, the High Court declares the decision unlawful or quashes it. It does not put its own decision in place of the Council’s.
Earlier cases illustrated the distinction. In Khan, a statutory review board could reconsider and reverse a registration decision. That was sufficiently like an appeal. Earlier Employment Appeal Tribunal reasoning treating judicial review itself as an equivalent route did not establish that the GMC’s conduct here was exempt from tribunal scrutiny.
Not created by the Senior Courts Act 1981
The Council accepted that earlier versions of the exception did not catch the prerogative writs, because judicial review began at common law. It argued that section 31 of the Senior Courts Act 1981 changed this by requiring judicial review applications to follow the rules of court. Lord Kerr rejected that argument. Section 31 regulates the procedure. It does not create the jurisdiction, and the remedies remain those of the prerogative writs. The statutory words refer to legislation that specifically provides an appeal, or an appeal-like proceeding, against a particular body’s decisions, as in Khan. They do not cover the general right of judicial review merely because, since 1981, its procedure has a statutory footing. Lord Kerr agreed with Moore-Bick LJ. If Parliament had meant to remove from the tribunal every qualifications-body decision open to judicial review, that would be expected to have been stated expressly.
Lord Mance agreed that the appeal should be dismissed. He added that the reasoning should not be read as limiting judicial review, which may in a suitable case look closely at a claim or conclude that only one outcome is lawful. That did not assist the Council. The tribunal was the natural forum for the surviving complaints. Where the Medical Act 1983 intends an appeal, section 40 provides one expressly.
Verdict: The Court unanimously dismissed the GMC’s appeal. The Employment Tribunal could hear the surviving discrimination complaints. The Supreme Court decided where those allegations could be heard and made no finding that the GMC had discriminated.
Source: Michalak v General Medical Council and others [2017] UKSC 71
