General Medical Council v Michalak

Where an act of a qualifications body is amenable to judicial review, proceedings for judicial review may constitute proceedings in the nature of an appeal for the purposes of section 120(7) of the Equality Act 2010. The Employment Tribunal therefore lacks jurisdiction over a section 53 complaint concerning that act. The provision is not to be treated simply as a narrowly construed exception to a general Employment Tribunal jurisdiction. Section 120 must be read as a whole, with specific appeal processes taking primacy where applicable. An Employment Appeal Tribunal should follow a directly binding decision unless satisfied that it is plainly wrong, even where substantial doubts remain about its correctness. A tribunal cannot use the slip rule to make substantive changes to its reasoning without giving the parties an opportunity to make submissions.

Dr Michalak brought discrimination complaints against the General Medical Council and two individuals. The complaints concerned the GMC’s treatment of matters arising from her professional regulation. The Employment Tribunal held that it had jurisdiction under section 120 of the Equality Act 2010, rejecting the GMC’s argument that section 120(7) applied because the acts were amenable to judicial review.

The GMC appealed. The central issues were whether judicial review was an appeal or proceedings in the nature of an appeal arising by virtue of an enactment, whether the Employment Tribunal was bound by Jooste v General Medical Council [2012] EQLR 1048, and whether the tribunal had lawfully corrected its judgment under the applicable slip-rule provision.

1. Grounds 1 and 2 allowed. The Employment Tribunal had erred in failing to follow Jooste v General Medical Council [2012] EQLR 1048. That decision was directly in point and was ratio, whereas the relevant observations in Tariquez-Zaman v GMC were obiter. The later decision in Uddin v GMC [2013] ICR 793 did not contradict Jooste.

2. The court followed Jooste with considerable hesitation. Judicial review is provided for and regulated by section 31 of the Senior Courts Act 1981, and its remedies may include quashing, remittal, substitution in limited circumstances, declarations, injunctions and damages. Judicial review is therefore capable of falling within section 120(7), although substantial arguments existed that Parliament intended the exclusion principally for specialist statutory appeal mechanisms and that judicial review retained a common-law foundation.

3. Section 120 must be read as a whole. It does not establish an unrestricted primacy for Employment Tribunals in employment-related discrimination claims, subject only to narrowly construed exceptions. Where a specific appeal process is available, it has primacy over Employment Tribunal jurisdiction.

4. The acts complained of were agreed to be amenable to judicial review. Section 120(7) therefore deprived the Employment Tribunal of jurisdiction in relation to the relevant section 53 complaints. The appeal concerning the claims against the individual respondents followed on the same agreed principles.

5. The tribunal also acted improperly in correcting its judgment after the notice of appeal had been served. Replacing one authority with another changed the substance of its reasoning. A tribunal wishing to reconsider its reasoning must invite submissions from the parties; the slip rule permits correction of clerical mistakes or accidental slips without such submissions. Ground 3 would also have succeeded if necessary.

• Employment Tribunal: Employment Judge Keevash held that section 120(7) of the Equality Act 2010 did not prevent the complaints from proceeding.
• Employment Appeal Tribunal: The appeal was allowed. The Employment Tribunal was required to follow Jooste v General Medical Council [2012] EQLR 1048, and the relevant claims were outside its jurisdiction.