Facts

Dr Michalak brought successful claims for unfair dismissal, sex and race discrimination and victimisation against her former employer, an NHS Trust. Following her dismissal, but before the Employment Tribunal (ET) had determined her claims, the Trust referred Dr Michalak to the GMC to consider her continued registration. The Trust subsequently accepted that it did not have proper grounds to make such a referral and her registration remained intact.

Dr Michalak sought to bring a claim in the ET against the GMC on the basis that, in the investigation and hearing of her case, the GMC had discriminated against her contrary to the Equality Act 2010.

Under the Equality Act, the ET can hear claims of discrimination against a “qualifications body” such as the GMC, except where there is a right of appeal against that body’s decision. The ET held that it did have jurisdiction to hear Dr Michalak’s claim against the GMC but the Employment Appeal Tribunal (EAT) disagreed on the basis that it was bound by the earlier EAT decision of Jooste v GMC [2012]. In Jooste, the EAT ruled that, as the qualifications body’s decision could be challenged by way of a judicial review in the High Court, this amounted to a right of appeal.  Therefore, the ET did not have jurisdiction to hear the claim.

Court of Appeal decision

The Court of Appeal overturned the EAT’s decision. A decision of the GMC to erase, suspend or impose conditions on a medical practitioner’s registration is susceptible to a statutory route of appeal to the High Court.  However, other actions of the GMC can only be subject to judicial review.  It held that judicial review in the High Court is not a proper forum for the determination of discrimination claims and nor is judicial review “in the nature of an appeal” against the initial decision of the GMC. The purpose of judicial review is to consider procedural unfairness and the lawfulness of a decision: how rather than why a decision is made. The ET is better equipped to deal with decisions of fact and is the appropriate forum to determine and provide a remedy for discrimination claims. Accordingly, Dr Michalak’s claim should be allowed to proceed before the ET as her complaints did not relate directly to decisions about her registration.

What to take away

This case is likely to be highly significant for all professional regulators. It raises the prospect of individuals who are dissatisfied with the actions of their regulatory bodies (other than decisions in relation to their registration) bringing claims for discrimination against that body (and potentially against named individuals at that body) in the ET.

Capsticks is a market leader in the regulatory field and is currently one of a small handful of firms to be ranked in the top tier for regulatory work by the Chambers Guide to the Legal profession and the Legal 500. We are also separately ranked for our employment law expertise.  This combination means that we are uniquely placed to assist regulatory bodies in defending discrimination claims in the Employment Tribunal.

If you would like to discuss the implications of this case further, please contact Andrew Rowland, Jacqui Atkinson or Rachael Heenan.