Depner v General Medical Council

Where a qualifying body’s act falls within section 12(1)(c) of the Race Relations Act 1976, an Employment Tribunal has no jurisdiction if a statutory appeal or proceedings in the nature of an appeal may be brought in respect of that act. An appeal under the Medical Act 1983 which permits the court to quash a suspension decision, remit the case, or terminate immediate suspension has that character.

The exclusion does not extend to harassment claims under section 12(1A). Earlier investigatory or procedural acts which neither withdraw registration nor vary its terms do not fall within section 12(1)(c).

A doctor alleged race discrimination, victimisation and harassment by the General Medical Council in connection with fitness-to-practise proceedings. The Fitness to Practise Panel suspended her registration for nine months and ordered immediate suspension.

The Employment Judge held that discrimination and victimisation complaints concerning those decisions fell within section 12(1)(c) of the Race Relations Act 1976, but that the Employment Tribunal’s jurisdiction was excluded by section 54(2). The claims were struck out. Harassment claims could proceed.

The doctor appealed on the issue whether statutory appeals under the Medical Act 1983, or judicial review, were an appeal or proceedings in the nature of an appeal for section 54(2).

1. Appeal dismissed. The Employment Judge correctly held that the Employment Tribunal lacked jurisdiction over the discrimination and victimisation claims.

2. The relevant statutory route for a complaint against the GMC as a qualifying body was section 12(1)(c) of the Race Relations Act 1976. Suspension of registration plainly varied the terms on which the doctor held her registration. Earlier alleged acts preceding suspension did not withdraw registration or vary its terms. They therefore fell outside that provision. The Act did not contain the wider “any other detriment” wording later found in the Equality Act.

3. The suspension decision was appealable under sections 38 and 40 of the Medical Act 1983. Under section 40 the court could quash the direction or remit the case. Under section 38(8) it could terminate immediate suspension. Those remedies were proceedings in the nature of an appeal within section 54(2).

4. Khan v General Medical Council [1996] ICR 1032 was binding and indistinguishable. Its reasoning was that proceedings allowing a GMC decision to be reversed by a differently constituted decision-maker were in the nature of an appeal. The statutory remedies available here afforded at least greater redress than the review considered in Khan.

5. The limited supervisory character of a court’s review did not prevent proceedings from being an appeal. It was unnecessary to decide whether the availability of judicial review would independently exclude Employment Tribunal jurisdiction, because statutory appeals under the Medical Act were available.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Judge’s ruling that section 54(2) of the Race Relations Act 1976 excluded jurisdiction over the discrimination and victimisation claims.
• Employment Tribunal: At a pre-hearing review, the Employment Judge struck out the discrimination and victimisation claims concerning suspension, while allowing harassment claims to proceed.
• Employment Tribunal: In earlier proceedings, a different Employment Judge had dismissed discrimination complaints concerning events before suspension for want of jurisdiction, apart from the treatment of harassment claims.