Legal advice after baby loss
Michalak v General Medical Council and others  UKSC 71
The Supreme Court put to rest the much anticipated question of whether claims against qualification bodies for discrimination and related unlawful conduct could be heard in the Employment Tribunal (‘ET’) instead of the High Court.
This issue was previously addressed in Michalak v The General Medical Council & Others  EWCA Civ 172 where the Court of Appeal held that the existence of judicial review did not preclude the use of the ET for individuals complaining of unlawful discrimination by a qualification body. Our blog on this decision can be found here.
The GMC appealed this decision to the Supreme Court.
The legal framework
Under section 120(1)(a) of the Equality Act 2010 (‘the Act) a claim for discrimination against a qualification body such as the GMC can be brought in the ET. However, s120(7) of the Act provides an exception where the conduct complained of can ‘by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal.’ The rationale for this is clear: it would obviously be undesirable if a parallel procedure in the ET existed alongside an appeal route otherwise there would be rapid increase in satellite litigation incurring unnecessary cost and delay.
In the present case, all parties accepted that the GMC was a qualifications body. Under the ‘fitness to practise’ jurisdiction, the GMC receives and considers complaints about medical practitioners and panels of the Medical Practitioners Tribunal Service (MPTS) have powers to impose sanctions against doctors. All of which may be appealed to the High Court under sections 38 and 40 of the Medical Act 1983.
However, this statutory route of appeal did not apply to the respondent as her complaint did not relate to any action by the GMC as to her registration, but rather an allegation of discrimination about the way in which the GMC conducted their fitness to practise investigation.
The GMC’s contention was that such conduct was amenable to judicial review and therefore the respondent was precluded from resorting to the ET. The essential issue for the Supreme Court to determine therefore was whether the availability of judicial review animates the exemption contained in s120(7). To answer this question, the Court had to assess whether judicial review could be properly described as ‘a proceeding in the nature of the appeal’ and whether it was available ‘by virtue of an enactment.’ It is important to note that both these conditions must be satisfied before s120(7) comes into play.
Proceedings in the nature of an appeal
Lord Kerr, who gave the leading judgment of the court, overruled the decision in Jooste v General Medical Council  EQLR 1048 drawing a distinction between an appeal and judicial review. He determined that an appeal involves a review of an original decision in all its aspects, including examination of the basis on which a decision was made, the merits of the conclusion and, if the appeal court disagrees with those conclusions, substituting its own. Judicial review, in contrast, reviews the legality of, or the procedure by which, a decision was reached. At paragraph 30 of the judgment Lord Kerr states:
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.'
By virtue of an enactment
In respect of the second-part of the test, the GMC argued that judicial review proceedings became proceedings ‘by virtue of an enactment’ on the coming into force of the Senior Courts Act 1981. Again, the Supreme Court found this argument to be ill-founded, stating that judicial review has its origins in common law. Lord Kerr adopted the observations of Moore-Bick LJ at paragraph 53 of his judgment in the Court of Appeal in the present case where he said:
‘The words ‘by virtue of an enactment’ in section 120(7) are directed to cases in which specific provision is made in legislation for an appeal, or proceedings in the nature of an appeal, in relation to decisions of a particular body, as for example, in Khan v General Medical Council  ICR 1032. They are not…intended to refer to the general right to seek judicial review merely because, since 1981, that happens to have been put on a statutory footing.’
Therefore, although section 31 of the Senior Courts Act put judicial review on a statutory footing, judicial review exists independently of any statute.
The decision of the Court
Lord Kerr therefore concluded by stating at paragraph 36 that:
In my view, judicial review in the context of the present case is not in the nature of an appeal. Nor is it a remedy provided by reason of an enactment. I would dismiss the appeal.’
The decision of the Supreme Court is of utmost importance to those individuals who wish to complain of unlawful discrimination by a qualification body. The decision allows them to take their complaint to the ET in all cases provided there is no statutory appeal process in existence. Quite apart from the range of remedies available to it, the ET has distinct advantages for complainants. As Lord Kerr identified at paragraph 19 of his judgment in the present case:
It is a specialist tribunal with expertise in hearing discrimination claims across a range of sectors; it is designed to be accessible to litigants in person; and it is generally a cost-free jurisdiction.’
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