Michalak v General Medical Council and Others

Heard on 4 July 2017

(with whom Lady Hale, Lord Mance, Lord Wilson and Lord Hughes agree)

Ewa Michalak began employment as a doctor with the Mid-Yorkshire Hospitals NHS Trust in April 2002. She remained in that employment until she was dismissed in July 2008. Following her dismissal, Dr Michalak brought an unfair dismissal claim against the Trust in the Employment Tribunal. The tribunal found that her dismissal had been unfair and contaminated by sex and race discrimination and victimisation. Dr Michalak received a compensation award and a public apology from the Trust.

Before the tribunal had issued its determination, and, on foot of Dr Michalak's dismissal, the Trust had reported her to the General Medical Council (the GMC) in relation to her conduct, so that the question of whether she should continue to be registered as a medical practitioner could be considered. The Trust later accepted that there had not been proper grounds on which to refer her to the GMC. She remains registered as a medical practitioner, therefore.

In the meantime, however, the GMC had begun fitness to practise proceedings against Dr Michalak under Part V of the Medical Act 1983. She claims that the GMC discriminated against her in the way in which it pursued those proceedings. She also alleges that the discrimination extended to the GMC's failure to investigate complaints that she had made against other doctors employed by the Trust.

Dr Michalak presented a claim to the Employment Tribunal in relation to these complaints in August 2013. The respondents named on the application form were the GMC, Niall Dickson, its chief executive, and Simon Haywood, an investigation officer of the GMC. They are the current appellants, although for all intents and purposes, the effective appellant is the GMC. It is agreed that the second and third appellants' cases do not require separate consideration.

The appellants applied to have Dr Michalak's complaint to the tribunal struck out on the basis that the tribunal did not have jurisdiction to hear the claims. The complaints of discrimination and breach of contract against the GMC relating to the period before 1 October 2010 were struck out. The tribunal decided that it did have jurisdiction in relation to complaints regarding unlawful sex, race and disability discrimination after that date but not in relation to breach of contract. So far as the complaints against the second and third appellants were concerned, the complaint was confined to one of unlawful discrimination and the tribunal considered that it had jurisdiction to entertain this complaint.

The appellants appealed, arguing that section 120(7) of the Equality Act 2010 precluded jurisdiction, since judicial review afforded an appeal for the acts complained of. The Employment Appeal Tribunal (Langstaff P) agreed and allowed the appeal. An appeal against that decision was successful before the Court of Appeal (Moore-Bick, Kitchin and Ryder LLJ) [2016] ICR 628. It held that the Employment Tribunal had jurisdiction to deal with Dr Michalak's complaints and remitted the case to the tribunal for further case management.

The appeal to this court raises a single issue. It is whether the availability of judicial review proceedings in respect of decisions or actions of the first appellant excludes the jurisdiction of the Employment Tribunal by virtue of section 120(7) of the Equality Act.

Under section 120(1)(a) of the Equality Act, an employment tribunal has jurisdiction to determine a complaint relating to a person's work. But section 120(7) provides that "subsection (1)(a) does not apply to a contravention of section 53 in so far as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal". Section 53 deals with discrimination by qualifications bodies. Section 54 defines qualifications bodies. In its material parts, it provides:

"(2) A qualifications body is an authority or body which can confer a relevant qualification.

(3) A relevant qualification is an authorisation, qualification, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular trade or profession.

…

(5) A reference to conferring a relevant qualification includes a reference to renewing or extending the conferment of a relevant qualification."

All parties accept, therefore, that the GMC is plainly a qualifications body. It is an independent organisation which regulates the profession of doctors within the United Kingdom under the Medical Act 1983. Its main objective, under section 1(1A) of that Act, is "to protect, promote and maintain the health and safety of the public". The GMC maintains the register of doctors and is responsible for certain undergraduate and postgraduate medical education, and for the training and revalidation of doctors. Under Part V of the Medical Act and the General Medical Council (Fitness to Practise) Rules 2004, the GMC has power to investigate complaints against doctors.

Under the "fitness to practise" jurisdiction, the GMC receives and considers complaints about medical practitioners. Where it is decided that the complaints warrant an inquiry, the GMC prepares the evidence and the drafting of allegations. Any hearing that follows is conducted by the Medical Practitioners' Tribunal Service. It is described as a part of the GMC but is independent of it.

A decision to erase a medical practitioner's name from the register or to suspend, or to impose conditions on his or her registration may be appealed to the High Court under sections 38 and 40 of the Medical Act. The High Court may allow the appeal and quash the original decision; it may also substitute a new decision for the original decision; or remit the matter for re-hearing.

The Medical Act also provides for various other types of appeal against fitness to practise decisions. To take an example, section 41A(10) states that the "relevant court" has the power to terminate an interim order of suspension, and section 41A(14) states that "relevant court" has the same meaning as in section 40(5). Section 40(5) contains the definition of the "relevant court" as the High Court. In effect, therefore, an appeal against the making of an interim order of suspension lies to the High Court. But neither this nor any of the other possible statutory avenues of appeal is relevant to the respondent's position. Her complaints do not relate to any action by the GMC as to her registration. Her series of claims of discrimination on the part of the GMC relate to the manner in which it pursued its fitness to practise application and its failure to investigate her complaints against other doctors in the trust where she had been employed. No statutory appeal is available to her to pursue those complaints.

It is accepted, however, that she could seek judicial review of the decisions that are said to constitute the various acts of discrimination. The essential issue in the case, therefore, is whether the availability of judicial review animates the exemption contained in section 120(7). This in turn depends on whether that remedy can properly be described as "a proceeding in the nature of the appeal" and whether it is available to the respondent "by virtue of an enactment". It is important to note that both these conditions must be satisfied before section 120(7) comes into play. Both issues will have to be examined separately but, first, one must look at the context in which they require to be decided and that is provided principally by the Equality Act itself.

The purpose of the Equality Act 2010, as explained in the Explanatory Memorandum (para 10), is "to harmonise discrimination law, and to strengthen the law to support progress on equality". The Act repealed and replaced existing equality legislation, including the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995.

In these various items of legislation, Parliament provided for discrimination claims in the work, employment and occupation contexts to be dealt with by a specialist tribunal, first called the Industrial Tribunal and now known as the Employment Tribunal. The establishment of these specialist tribunals reflected the growing awareness of the importance which should be attached to equal treatment rights in the field of employment, not least because those rights are protected under European Union law — see, for instance, article 16 of the Framework Equality Directive (2000/78/EC) which required member states to take measures to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment were abolished.

Not only was the Employment Tribunal designed to be a specialised forum for the resolution of disputes between employee and employer, it was given a comprehensive range of remedies which could be deployed to meet the variety of difficulties that might be encountered in the employment setting. Thus, for instance, the tribunal may make a declaration as to the rights of the complainant and the...