Dr Michalak brought successful claims for unfair dismissal, sex and race discrimination and victimisation against her former employer, an NHS Trust. Before the ET had determined her claims, the Trust referred Dr Michalak to the GMC, although the Trust subsequently accepted that it did not have proper grounds to make such a referral and her registration remained intact.

Dr Michalak brought 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 GMC had argued that the process of judicial review provided a right of appeal and therefore the ET could not hear the claim. Both the ET and the Court of Appeal in this case dismissed this argument and held that the ET did have jurisdiction to hear Dr Michalak’s claim against the GMC.

The Supreme Court decision

The GMC appealed to the Supreme Court but the appeal was dismissed.

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. 

The Court of Appeal had found that the purpose of judicial review is to consider procedural unfairness and the lawfulness of a decision: how rather than why a decision is made. At the Supreme Court, Lord Kerr, giving the lead judgment, looked at what an appeal involves, including: 

  • considering the basis on which the original decision was made;
  • assessing the merits of the conclusions reached; and
  • substituting its own view where necessary.

Lord Kerr agreed with the Court of Appeal that judicial review is quite distinct from an appeal. 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 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 decision is significant for all professional regulators. The Supreme Court has confirmed that it  is possible for individuals who are dissatisfied with the actions of their regulatory bodies (other than decisions in relation to their registration) to bring 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 ET.

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