Michalak v General Medical Council and others

The Supreme Court unanimously held that the availability of judicial review does not, by itself, oust the jurisdiction of the Employment Tribunal under section 120(7) of the Equality Act 2010 in respect of complaints against a qualifications body such as the General Medical Council. The court distinguished between an appeal (or proceedings in the nature of an appeal), which entails a full merits review and the power to substitute a decision, and judicial review, which is principally a legality and procedural remedy rooted in the common law. The court also held that judicial review is not a remedy "by virtue of an enactment" in the sense required by section 120(7), and that provisions such as section 31(1) of the Senior Courts Act 1981 regulate but do not create judicial review. For these reasons the appeal was dismissed and the Employment Tribunal retained jurisdiction to hear the respondent's discrimination complaints after 1 October 2010.

Background and facts:

• Ewa Michalak was employed as a doctor by Mid-Yorkshire Hospitals NHS Trust from April 2002 until her dismissal in July 2008. An Employment Tribunal found her dismissal unfair and contaminated by sex and race discrimination and victimisation; she received compensation and an apology.
• Separately the Trust reported her to the General Medical Council (GMC) and the GMC commenced fitness to practise proceedings under Part V of the Medical Act 1983. The Trust later accepted there had been no proper grounds for the referral.
• Dr Michalak brought claims to the Employment Tribunal in August 2013 alleging that the GMC discriminated in the way it pursued fitness to practise proceedings and in failing to investigate complaints she made about other doctors.

Procedural path:

• The GMC applied to strike out the ET claims for lack of jurisdiction. The ET struck out complaints of discrimination and breach of contract predating 1 October 2010 but retained jurisdiction for discrimination complaints after that date. The EAT (Langstaff P) allowed the appellants' appeal, holding jurisdiction excluded by section 120(7) of the Equality Act; the Court of Appeal reversed, holding the ET had jurisdiction and remitted for case management ([2016] EWCA Civ 172; reported [2016] ICR 628). The GMC appealed to the Supreme Court.

Nature of the claim and issues:

• The central issue was whether the availability of judicial review for decisions or actions of the GMC means such acts are "subject to an appeal or proceedings in the nature of an appeal" "by virtue of an enactment" so as to exclude Employment Tribunal jurisdiction under section 120(7) of the Equality Act 2010.

Court's reasoning:

• The court explained the statutory context: Parliament has for many years channelled certain challenges to specialist statutory routes where those routes provide an equivalent remedy. Section 120(7) was intended to exclude jurisdiction where there is an appeal or appeal-like statutory procedure capable of providing equivalent redress.
• But an "appeal" involves review of the merits with power to substitute a decision, whereas judicial review is principally a common law procedure directed to legality, procedure and, in human rights contexts, proportionality, not a full merits rehearing. Accordingly judicial review is not a proceeding in the nature of an appeal for the purpose of section 120(7).
• The court rejected the submission that judicial review became a remedy "by virtue of an enactment" on the coming into force of section 31 of the Senior Courts Act 1981, holding that section 31 only regulated and placed the procedure on a statutory footing; it did not create a statutorily based appeal or appeal-like route. The historical context and statutory wording supported a narrow construction of "by virtue of an enactment."
• The court distinguished earlier authorities relied upon by the appellants (including decisions where statutory review bodies provided unconstrained reviews capable of reversing decisions) and concluded those authorities did not support treating judicial review as an appeal-like remedy for section 120(7) purposes.

Relief sought and disposition:

• Dr Michalak sought to proceed in the Employment Tribunal with discrimination claims against the GMC. The Supreme Court dismissed the GMC's appeal and confirmed the Employment Tribunal retained jurisdiction to hear the surviving discrimination claims.

Wider implications:

• The court emphasised the distinct and important role of specialist employment tribunals and that statutory appeal routes should preclude tribunal jurisdiction where they provide an equivalent remedy, but that judicial review, as a common law remedy, does not automatically have that effect.

Appeal dismissed. The Supreme Court held that judicial review is not "a proceeding in the nature of an appeal" and is not a remedy provided "by virtue of an enactment" for the purposes of section 120(7) of the Equality Act 2010; therefore the Employment Tribunal retained jurisdiction to hear the respondent's discrimination complaints after 1 October 2010.

Employment Tribunal (initial proceedings on discrimination and related claims); Employment Appeal Tribunal (Langstaff P) allowed appellants' strike-out (no neutral citation provided); Court of Appeal reversed and held the Employment Tribunal had jurisdiction ([2016] EWCA Civ 172; reported [2016] ICR 628); appeal to the Supreme Court ([2017] UKSC 71).