Jooste v General Medical Council & Ors

An Employment Tribunal has no jurisdiction over a discrimination complaint against a qualifications body where the impugned act may be challenged by statutory appeal or judicial review arising under an enactment. Judicial review under the Senior Courts Act 1981 is capable of being proceedings in the nature of an appeal for section 120(7) of the Equality Act 2010.

Separate decisions of a regulator do not ordinarily constitute a continuing discriminatory act merely because they concern the same regulatory process. A claimant must identify a timely act with a real prospect of establishing discrimination. Trustees of a corporate statutory body are not personally liable for its alleged discriminatory acts without pleaded personal assistance in the particular acts.

The claimant, a doctor, brought race and disability discrimination claims under the Equality Act 2010 against the General Medical Council, the Care Quality Commission, two Secretaries of State and individual GMC trustees. He alleged that regulatory decisions concerning his suspension, and a later disclosure of an interim-order decision to the police, were discriminatory.

An Employment Judge struck out the claims. The Judge held that the Tribunal lacked jurisdiction over the GMC claim, that the claims were out of time or had no reasonable prospect of success, and that the claims against the remaining respondents were misconceived. The claimant appealed. The central issues were whether section 120(7) excluded the GMC claim, whether there was a continuing act, and whether the surviving allegations disclosed viable discrimination claims.

1. Appeal dismissed. The Employment Judge correctly struck out all claims. The EAT also dismissed the claimant's rule 3(10) application and refused the Care Quality Commission's application for appellate costs.

2. Section 120(7) of the Equality Act 2010 excluded the complaint against the GMC. Judicial review in its modern form arises under the Senior Courts Act 1981. It is therefore a remedy available by virtue of an enactment. Proceedings are in the nature of an appeal where a different decision-maker may reconsider and overturn the decision. Khan v General Medical Council and Chaudhary v Specialist Training Authority Appeal Panel and ors supported that construction.

3. In any event, the GMC claim was correctly struck out. The earlier regulatory decisions were outside the statutory time limit. The alleged disclosure to the police was a separate response to a request prompted by the claimant's own application to vary bail conditions. It had no reasonable prospect of being discriminatory. Applying the distinction identified in BMA v Chaudhary, regulatory decisions concerning registration or suspension were not a continuing act comparable to an employer's continuing application of a policy or practice.

4. The claims against the Commission had no reasonable prospect of success. The March 2011 allegation had not been pleaded, the Commission was not responsible for directing the GMC's affairs, and the alleged conduct did not fall within section 53. The claims against the Secretaries of State disclosed no claim within the Tribunal's jurisdiction.

5. The Employment Judge correctly applied Depner. The GMC is a corporate body. Its trustees could not be personally liable merely because they were trustees; liability required material showing that an individual had assisted a specific allegedly discriminatory act. No such case had been pleaded.

6. There was no error of law in the costs order below. The Commission's application for costs in the EAT was refused because the claimant's conduct did not satisfy rule 34A.

• Employment Appeal Tribunal: appeal dismissed: [2012] UKEAT 0093_12_0407.
• Employment Tribunal: Employment Judge Tayler, in a pre-hearing review judgment dated 29 July 2011 with reasons sent on 21 October 2011, struck out the claims for want of jurisdiction, lateness, and lack of reasonable prospects of success.