Michalak v General Medical Council and others

Judicial review is neither an appeal nor a proceeding in the nature of an appeal for the purposes of section 120(7) of the Equality Act 2010. An appeal ordinarily permits reconsideration of the merits and substitution or effective reversal of the original decision. Judicial review principally examines legality and procedure, even where proportionality is considered.

Nor is judicial review available “by virtue of an enactment”. Its jurisdictional basis remains the common law; section 31 of the Senior Courts Act 1981 regulates its procedure. Consequently, the general availability of judicial review does not exclude the Employment Tribunal’s jurisdiction over discrimination complaints against a qualifications body.

The respondent doctor alleged that the General Medical Council had discriminated against her in pursuing fitness-to-practise proceedings and in failing to investigate her complaints against other doctors. Her surviving allegations did not concern a registration decision for which the Medical Act 1983 provided a statutory appeal.

The Employment Tribunal accepted jurisdiction over the post-October 2010 discrimination claims. The Employment Appeal Tribunal allowed the GMC’s appeal, holding that judicial review was an alternative remedy within section 120(7) of the Equality Act 2010. The Court of Appeal reversed that decision and remitted the claims to the tribunal: [2016] EWCA Civ 172; [2016] ICR 628.

The issue before the Supreme Court was whether the availability of judicial review made the respondent’s complaints subject, by virtue of an enactment, to proceedings in the nature of an appeal, thereby excluding the Employment Tribunal’s jurisdiction.

1. The appeal was dismissed unanimously. Lord Kerr gave the principal judgment, with which Lady Hale, Lord Mance, Lord Wilson and Lord Hughes agreed. The respondent’s surviving discrimination claims remained within the Employment Tribunal’s jurisdiction.

2. Section 120(7) of the Equality Act 2010 applies only where two cumulative conditions are satisfied: the act complained of must be subject to an appeal or appeal-like proceeding, and that remedy must exist by virtue of an enactment. Neither condition was met by the general availability of judicial review.

3. An appeal ordinarily permits reconsideration of the original decision in all its aspects. The appellate body may assess the merits and substitute or effectively procure a different decision. Judicial review principally examines legality and the procedure by which the decision was reached. Even proportionality review does not amount to a full merits appeal in which the reviewing court substitutes its own opinion.

4. A discrimination complaint requires an open-ended inquiry into whether discrimination occurred. Conventional judicial review instead asks whether the public body acted lawfully. Its usual remedies of declaration and quashing do not permit the reviewing court to decide the discrimination complaint for itself. Judicial review was therefore not a proceeding in the nature of an appeal.

5. Khan v General Medical Council [1996] ICR 1032 concerned a statutory review by a differently constituted body capable of effectively reversing the GMC’s decision after a merits inquiry. It did not establish that judicial review was appeal-like. The contrary observation in Tariquez-Zaman v General Medical Council was obiter and was rejected. Jooste v General Medical Council [2012] EQLR 1048 was wrongly decided.

6. Judicial review is not available “by virtue of an enactment”. Its jurisdictional foundation is the common law. Section 31 of the Senior Courts Act 1981 regulates the procedure for seeking established judicial-review remedies; it did not create the jurisdiction. Section 120(7) addresses legislation making specific provision for an appeal or appeal-like process concerning decisions of a particular body.

7. Lord Mance agreed, while cautioning against unnecessarily restricting the possible development or intensity of judicial review. In this case, however, the Employment Tribunal was the natural forum, and neither ordinary language nor statutory history justified treating judicial review as an appeal.

1. United Kingdom Supreme Court: Dismissed the GMC’s appeal and upheld the Court of Appeal’s conclusion that the Employment Tribunal had jurisdiction: [2017] UKSC 71.

2. Court of Appeal: Allowed the respondent’s appeal, held that the Employment Tribunal had jurisdiction, and remitted the proceedings for further case management: [2016] EWCA Civ 172; [2016] ICR 628.

3. Employment Appeal Tribunal: Allowed the GMC’s appeal on the basis that judicial review was an alternative statutory remedy falling within section 120(7) of the Equality Act 2010.

4. Employment Tribunal: Struck out the pre-October 2010 discrimination and contract claims, but accepted jurisdiction over the surviving post-October 2010 discrimination claims.