Michalak v The General Medical Council & Ors

Section 120(7) of the Equality Act 2010 removes Employment Tribunal jurisdiction over a qualifications-body claim only where the challenged act is subject, under specific legislation, to an appeal or proceedings in the nature of an appeal. A statutory internal review may qualify, particularly where professional registration is at stake. The general availability of judicial review does not qualify. Judicial review is supervisory and does not determine the merits of discrimination, harassment, victimisation or detriment. It may quash a decision but ordinarily cannot provide the same factual investigation, specialist equality jurisdiction or damages remedy. Where no specific appeal or internal review exists, the Employment Tribunal retains jurisdiction.

A registered doctor alleged that the GMC had discriminated against, harassed and victimised her during a fitness-to-practise investigation. The claims did not concern decisions about her registration, for which sections 38 and 40 of the Medical Act 1983 provided a statutory appeal. Judge Keevash held that the Employment Tribunal had jurisdiction. The Employment Appeal Tribunal, following Jooste, set that decision aside: UKEAT/01213/14/RN. The appeal concerned whether judicial review under section 31 of the Senior Courts Act 1981 constituted proceedings in the nature of an appeal under section 120(7) of the Equality Act 2010.

Disposition

The appeal was allowed unanimously. Ryder LJ delivered the lead judgment, with which Kitchin LJ and Moore-Bick LJ agreed. The Employment Tribunal’s decision was restored.

1. Section 120(7) of the Equality Act 2010 excludes Employment Tribunal jurisdiction where the act complained of is subject under specific legislation to an appeal or proceedings in the nature of an appeal. The expression is construed broadly. An internal review or appeal may suffice, even without an appeal to the High Court, where it provides a mechanism for reconsideration by a different body with power to reverse the original decision. Khan remains authority for that principle in relation to professional registration.
2. Where no statutory appeal or internal review exists, the general availability of judicial review does not satisfy section 120(7). Judicial review is a supervisory and collateral remedy, not an appeal on the merits of discrimination, harassment, victimisation or detriment. Under section 31 of the Senior Courts Act 1981, the High Court could quash a GMC decision, but could not ordinarily determine contested evidence, award damages without other relief, recommend a remedy for the unlawful treatment, or substitute its own decision for that of the GMC.
3. The statutory purpose was to reserve professional and registration questions to the specialist qualifications body and its appellate machinery. Equality-law questions are instead within the specialist competence of the Employment Tribunal, whose procedures address disputed facts, witnesses, disclosure, evidence and appropriate remedies. Judicial review remains an ultimate safeguard, but should ordinarily yield to an adequate alternative remedy.
4. The express preservation of judicial review in section 113 of the Equality Act 2010 reinforced that Parliament had not intended the general judicial-review jurisdiction to be included within section 120(7). Jooste was wrongly decided. The broader interpretation of Chaudhary and the obiter approach in Tariquez-Zaman were not adopted.

• Court of Appeal (Civil Division): Appeal allowed and the Employment Tribunal’s decision restored: [2016] EWCA Civ 172.
• Employment Appeal Tribunal: Langstaff J followed Jooste and set aside the Employment Tribunal’s preliminary decision that it had jurisdiction: UKEAT/01213/14/RN.
• Employment Tribunal: Judge Keevash held that the Tribunal had jurisdiction over the appellant’s claims under the Race Relations Act 1976 and the Equality Act 2010.