Supreme Court decision could open the floodgates for discrimination claims

03 Nov 2017

The Supreme Court’s judgment from 1 November in the case of Michalak v General Medical Council (GMC) is an important decision that could potentially have far reaching consequences for regulatory bodies.

Dr Michalak was dismissed from her employment at Mid Yorkshire Hospitals NHS Trust in July 2008 following which she brought an unfair dismissal claim against the Trust in the Employment Tribunal (ET). Prior to the ET’s determination, the Trust referred her to the GMC who, in turn, commenced an investigation.

Dr Michalak claimed that the GMC, a qualifications body, had discriminated against her in the way it pursued its investigation and that the discrimination extended to the GMC’s failure to investigate complaints that she had made against other doctors at the Trust, in breach of section 53(2) of the Equality Act. She presented a claim to the ET in August 2013.

The GMC applied to have Dr Michalak’s complaint to the ET struck out on the basis that the ET did not have jurisdiction to hear her claims. The ET however decided that it did have jurisdiction. The GMC appealed to the Employment Appeals Tribunal (EAT) arguing that section 120(7) of the Equality Act precluded jurisdiction since judicial review afforded an appeal for the acts complained of. The EAT agreed and allowed the appeal.

An appeal against that decision was successful in the Court of Appeal which held that the ET had jurisdiction to deal with Dr Michalak’s complaints and remitted the case. The GMC took the appeal further to the Supreme Court.

The Supreme Court had a single issue to consider, whether the availability of judicial review in respect of the decisions or actions of the GMC excludes the jurisdiction of the ET by virtue of section 120(7) of the Equality Act. The answer to this depended on whether that remedy can properly be described as “a proceeding in the nature of an appeal” and whether it is available “by virtue of an enactment.”

The court held that Dr Michalak’s complaints did not relate to any decision or action by the GMC as to her registration. Her claims related to the manner in which the GMC had pursued its fitness to practise application and its failure to investigate her complaint against other doctors in the trust, against which “no statutory appeal is available to her to pursue those complaints.”

The court confirmed that “where a statutory appeal is available, ETs should be robust in striking out proceedings which are launched instead of those for which specific provision has been made.” Using the ET as a forum for dealing with complaints has distinct advantages for complainants including its accessibility and the fact that it is generally a cost free jurisdiction.

The court explained that the conventional connotation of “appeal” is “a procedure which entails a review of an original decision in all its aspects. Judicial review by contrast is a proceeding in which the legality of or the procedure by which a decision was reached is challenged.” In relation to this case, the court confirmed that “an appeal in a discrimination case must confront directly the question whether discrimination took place, not whether the GMC took a decision legally open to it.”

The GMC argued that judicial review proceedings became proceedings by virtue of an enactment, namely the Senior Courts Act (section 31) however the court dismissed this saying that “the GMC’s case rested on a misunderstanding of the nature of judicial review” and that section 31 did not establish judicial review but rather regulated it.

The court concluded that judicial review in the context of this case was not in the nature of an appeal nor was it a remedy provided by reason of an enactment. They went on to say that “in this case the ET offers the natural and obvious means of recourse in respect of Dr Michalak’s complaints. There is no need in this context to strain the ordinary usage or understanding of the concept of appeal to embrace judicial review. Where the Medical Act does allow an appeal, it does so expressly (section 40).”

The appeal was dismissed.

As a result, under section 120 (1)(a) of the Equality Act 2010, a claim for discrimination against a qualification body such as the GMC, can be brought in the ET.

This is an important judgment as it means that doctors (and indeed other healthcare professionals) can pursue their regulator in the ET on the basis of discrimination in cases where there has been no fitness to practise decision but, for example, a delay in the investigation or a failure to interview a witness. Given that the GMC’s procedures are often lengthy and almost always involve an element of delay, this could result in an influx of discrimination claims going forward.

BLM’s healthcare team would be happy to provide further advice on the implications of the case generally or with regard to a specific case.

Sarah Kinrade
Healthcare solicitor
T: 0161 838 3960

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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