The Supreme Court has decided that a doctor is not prevented from suing the GMC in the Employment Tribunal (“ET”) under the Equality Act 2010 (“2010 Act”) by the availability of judicial review.
In 2013, Dr Michalak issued proceedings in the ET for sex, race and disability discrimination against the GMC in relation to fitness to practise proceedings commenced against her and the GMC’s failure to investigate complaints she had made against other doctors at her employing Trust. The GMC accepted throughout that it was a Qualifications Body for the purposes of s. 53 of the 2010 Act, but relied upon the specific exception for Qualifications Bodies contained in s. 120(7) of the 2010 Act. Section 120(7) removes the ET’s jurisdiction where “the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal”. The GMC relied on authorities before the EAT in which it had successfully argued that, as a result of the judicial review jurisdiction being placed on a statutory footing by the Senior Courts Act 1981 (previously the Supreme Court Act 1981) and developments in the grounds of judicial review, the Administrative Court was now the proper and exclusive forum for Dr Michalak’s claim.
In a short judgment, the Supreme Court held that the EAT had erred: judicial review remained a common law remedy although its procedure was regulated by statute; and appeal proceedings require the decision-maker to grapple with the merits of the dispute and not just its legality. Dr Michalak’s claim will therefore return to the ET.
The wider significance of this decision is that in future, discrimination claims brought by professionals against their regulators must be brought in the ET, even where judicial review is available as a remedy, unless there exists a statutory appeal process.
For a copy of the judgment click here.
Ivan Hare QC appeared for the GMC (the Appellant) and Catherine Callaghan appeared for the Solicitors Regulation Authority (an Intervener).