Controlling and Coercive Behaviour: Widening the Net
Dr Michalak v The General Medical Council & Others
 EWCA Civ 172
Dr E Michalak (the Appellant) complained that she had been discriminated against in the course of her employment as a doctor. She brought an action against her employer, an NHS Trust (the Trust), and succeeded. Pending the result of that action, she had been referred by the Trust to the General Medical Council (GMC) so that the issue of her registration as a medical practitioner could be considered. Following her referral to the GMC, the Appellant complained that in the course of the investigation and hearing of her case, the GMC acted to her detriment and in a manner unlawful under the Equality Act 2010 (EA 2010). The Appellant accordingly complained to an Employment Tribunal (ET) that she had been discriminated against by the GMC. The GMC contended that section 120(7) of the EA 2010 precluded the jurisdiction of the ET to hear her complaint because of the availability of judicial review.
It was the ET's jurisdiction to hear the Appellant’s complaint that was in question in this appeal.
Under the Medical Act 1983 (MA 1983), the GMC is a corporate body which has powers and duties to inquire into complaints about a registrant's fitness to practise.
The GMC has the power to register and, in an appropriate case, to remove, limit or suspend the registration of a medical practitioner.
A decision to erase, suspend, or to impose conditions on a medical practitioner's registration is susceptible of a statutory route of appeal to the High Court by virtue of sections 38 and 40 of the MA 1983. In respect of such acts or decisions, a medical practitioner has 28 days to appeal to the High Court, which is empowered to: dismiss the appeal; allow the appeal and quash the original decision; substitute a new decision for the original decision; remit the matter for re-hearing, and in all circumstances make a costs order.
The availability of statutory routes of appeal
It was common ground that where Parliament has provided a statutory route of appeal for a complaint, then section 120(7) of EA 2010 precludes a complaint being brought before the ET for determination.
In the present case, the Appellant’s complaints about the GMC’s investigation and hearing of her case did not fall within the statutory route of appeal to the High Court (as set out in sections 38 and 40 MA 1983) because the complaints were not about the Appellant's registration.
The proceedings in the ET and the Employment Appeal Tribunal
The Appellant issued proceedings in the ET against the three respondents complaining of various decisions and actions within the fitness to practise investigation that were alleged to be unlawful under the EA 2010, but which fell short of actions upon her registration to which the statutory route of appeal applied. The particulars of her claim were:
With regards to the ET proceedings, a preliminary hearing took place on 17 February 2014 before Keevash J. He found that the ET had jurisdiction to hear the Appellant's claims against the GMC under the Race Relations Act 1976 (RRA 1976) (in respect of matters that pre-dated 1 October 2010) and under the EA 2010 (in respect of matters that post-dated or were continuing at 1 October 2010). The respondents appealed his decision to the Employment Appeal Tribunal (EAT) on the basis that the decision amounted to an error of law in light of the decision of the EAT in Jooste v GMC  EQLR 1048.
The matter came before the President of the EAT, Langstaff J, in November 2014. The President held that the ET was in law bound to follow the decision of McMullen J sitting in the EAT in Jooste. In that case, McMullen J held that an application to the ET under section 120(1) of the EA 2010 was precluded by section 120(7) EA 2010 because of the availability of judicial review under section 31 of the Senior Courts Act 1981. In the present case however, the President granted the Appellant permission to appeal to the Court of Appeal on the basis that there was sufficient reason to doubt whether the decision in Jooste was correct.
The legal framework
The EA 2010 came into force on 1 October 2010. The aim of the EA 2010 is to legally protect people from discrimination in the workplace and more generally. It replaced previous anti-discrimination laws with a single enactment.
The jurisdiction of the ET to determine complaints under Part 5 of the EA 2010 is defined by section 120 of the Act, which provides that:
"(1) An employment tribunal has, subject to section 121, jurisdiction to determine a complaint relating to —
(a) a contravention of Part 5 (work);
(b) a contravention of section 108, 111 or 112 that relates to Part 5."
Section 120(7) EA 2010 provides that:
"(7) 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."
It was accepted by all parties in the present case that the GMC is a "qualifications body" as defined in section 54 of the EA 2010. Under section 53 of the EA 2010, it is unlawful for a qualifications body to discriminate against, harass or victimise a person upon whom it confers or has conferred a relevant qualification by, inter alia, withdrawing or varying the terms on which that qualification is held, or subjecting that person to any detriment.
Counsel for the GMC, submitted, in brief, that a long line of case law had determined that section 120(7) EA 2010 included judicial review with the consequence that the ET was precluded from determining such matters.
Counsel for the Appellant argued that Parliament had never intended that judicial review be within the ambit of section 120(7) of the EA 2010 and that if Parliament had so intended, it would have said so specifically. Judicial review was never intended to be caught by section 120(7) and its availability did not preclude the ET from determining an application under section 53 of the EA 2010. He submitted further that the purpose of section 120(7) EA 2010 is to enable particular matters, such as those in respect of a practitioner's registration which are short of professional status questions, to be determined by a specialist professional body and ultimately the High Court. He concluded by submitting that the ET is the specialist tribunal which determines whether acts or omissions amount to breaches of equality legislation and it would be wrong to conclude that Parliament intended to oust that jurisdiction simply because of the availability of the supervisory jurisdiction of the High Court in judicial review.
Ryder LJ, who gave the leading judgment of the Court, examined the relevant case law in some detail. He considered in particular Khan v General Medical Council  ICR 1032 in which the Court of Appeal was asked to consider the precursor to section 120(7) EA 2010, namely section 54(2) of the RRA 1976. Khan was the authority for the proposition that where there is a defined statutory route of appeal for actions upon a medical practitioner's registration, such as that described in sections 38 and 40 EA 2010, the jurisdiction of the ET under section 53 is precluded.
The decision of the Court
Ryder LJ was sceptical that Parliament had contemplated judicial review falling within the 'proceedings in the nature of an appeal' provision in section 120 of the EA 2010. Ryder LJ said (at para. 37) as follows:
“Just as the purpose of section 120(7) EA 2010 is to ensure that the most specialist body hears the complaint, where a complaint is focussed not on the specialist medical or other professional knowledge of the qualifications body but on unlawful treatment of the nature prohibited by section 53, the ET rather than the administrative court in its judicial review jurisdiction is the specialist tribunal charged by Parliament to make decisions of that kind. To submit in that circumstance that the ET's jurisdiction is ousted by the availability of judicial review flies in the face of long established authority”.
Ryder LJ saw force in the Appellant’s arguments that “where a claimant seeks to show that a decision involves unlawful discrimination but does not seek any of the discretionary remedies available in judicial review … then on the GMC's construction of section 120(7) EA 2010 the jurisdiction of the ET would be ousted and there would be no alternative remedy”. He also accepted the Appellant’s submission that “the ET is set up to deal specifically with discrimination and related issues in employment and work. The process of the ET is designed to further that object and provide assistance in the form of rules on costs, disclosure and evidence, including, where appropriate, the reversal of the burden of proof. The benefit of that process is not available in judicial review” (at para. 44).
Ryder LJ therefore concluded by stating at para. 46 that:
“The existence of judicial review does not preclude the use of the ET because that was never the intention of Parliament and the case law before Jooste did not suggest so precisely because judicial review was not contemplated to be and is not a specialist forum for the determination of discrimination and related unlawful conduct. It is of course an ultimate safeguard in that it enables a remedy to be obtained where no other remedy exists, but here, the ET has a sufficient jurisdiction with appropriate remedies which should be used before recourse to judicial review is contemplated”.
The decision of the Court of Appeal is important for those individuals who claim to have suffered from discrimination, victimisation, harassment or detriment in the treatment that they have received from a qualifications body (and not just the GMC). It confirms that complaints about the manner in which fitness to practice proceedings are conducted are reviewable by the ET. Qualifications bodies (as defined under the EA 2010) should note that complainants are not obliged to avail themselves of the High Court’s supervisory jurisdiction in such proceedings, where arguably the bars to making a successful claim are higher than in ET cases.
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