Michalak v The General Medical Council & Ors

The Court of Appeal held that the Employment Tribunal has jurisdiction to hear complaints under section 53 of the Equality Act 2010 against a qualifications body where the complaint does not fall within a statutory route of appeal or an internal review provided for by statute. The court interpreted section 120(7) EA 2010 as directed to situations where there is a specific statutory appeal or review procedure; it was not intended to oust the tribunal's jurisdiction merely because judicial review is available. Key authorities considered included Khan v GMC and Jooste v GMC, and the court emphasised the difference between judicial review (a collateral supervisory remedy) and an appeal or merits determination by a specialist tribunal capable of awarding damages and determining disputed facts.

Background and parties. The appellant, Dr Michalak, a registered medical practitioner, had been dismissed by an NHS trust and later referred to the General Medical Council (GMC). The trust accepted there were no proper grounds for referral and her registration remains intact. The appellant alleged that the GMC's conduct in investigating and hearing the referral amounted to unlawful discrimination, harassment and victimisation under the Equality Act 2010.

Procedural history. The Employment Tribunal (Judge Keevash) held it had jurisdiction to hear the section 53 claims. The GMC appealed to the Employment Appeal Tribunal (President Langstaff J, UKEAT/0213/14/RN) which, following Jooste v GMC, held that the Employment Tribunal was precluded from hearing such claims where judicial review was available. The appellant obtained permission to appeal to the Court of Appeal.

Nature of the claim and issues. The appellant sought to bring complaints under section 53 EA 2010 against a qualifications body for discrimination, harassment and detriment. The principal legal issues were (i) the meaning and purpose of section 120(7) EA 2010 and its predecessors, and (ii) whether the availability of judicial review constitutes "proceedings in the nature of an appeal" that ousts an Employment Tribunal's jurisdiction.

Court's reasoning. The court reviewed the statutory scheme and authorities (including Khan, Chaudhary, Tariquez-Zaman, Jooste, Depner and Uddin). It concluded that section 120(7) is intended to exclude tribunal jurisdiction where a specific statutory appeal or internal review procedure exists for decisions of a qualifications body. Judicial review is a supervisory, collateral process and not an appeal on the merits; it does not provide the same fact-finding, evidential procedures or remedies on the merits (such as awards of damages) that the Employment Tribunal provides. Where no statutory appeal or internal review exists, reliance on the availability of judicial review alone to oust the Employment Tribunal would defeat Parliament's scheme and deprive claimants of effective remedies for discrimination. The court therefore allowed the appeal and restored the Employment Tribunal's decision that it had jurisdiction to hear the section 53 claims.

Wider implications. The court emphasised practical reasons for the Employment Tribunal to determine discrimination claims against qualifications bodies in cases not covered by a statutory appeal, and treated judicial review as the ultimate safeguard rather than a substitute for the tribunal's specialist jurisdiction.

The appeal was allowed. The Court of Appeal held that section 120(7) Equality Act 2010 does not, merely by reason of the availability of judicial review, oust the Employment Tribunal's jurisdiction to hear complaints under section 53 where no statutory appeal or internal review procedure applies. Judicial review is a collateral supervisory remedy and not a substitute for the Employment Tribunal's merits jurisdiction and remedies.

Employment Tribunal (preliminary hearing before Judge Keevash, 17 February 2014) held ET had jurisdiction. Appeal to the Employment Appeal Tribunal (President Langstaff J, UKEAT/0213/14/RN, 25 November 2014) set aside that decision following Jooste v GMC. Permission to appeal to the Court of Appeal was granted; Court of Appeal decision reported at [2016] EWCA Civ 172.