17th November 2017

Employment Tribunals Can Hear Discrimination Complaints by Doctors Against the GMC

 

In the recent Supreme Court decision of Michalak v General Medical Council, it was decided that an Employment Tribunal did have jurisdiction to hear a doctor's complaint of discrimination against the General Medical Council (GMC).

Background

Dr Michalak succeeded in claims of unfair dismissal, sex and race discrimination and victimisation against the NHS Trust that employed her. Prior to the ET finding in favour of Dr Michalak, the NHS Trust had reported Dr Michalak to the GMC and the GMC had, in turn, commenced fitness to practise proceedings against her.

Dr Michalak complained that during the proceedings the GMC had discriminated against her in the way that they had pursued the matter and alleged that the discrimination extended to the GMC’s failure to investigate complaints that she had made against other doctors employed by the Trust.

The GMC applied for the claim to be struck out on the basis that the ET had no jurisdiction to deal with it by reason of section 120(7) of the Equality Act. This section prevents any individual bringing a discrimination claim against a “qualification body” (of which the GMC is one) when the alleged discriminatory act is subject to “proceedings in the nature of an appeal”.

At its basics, the GMC argued that, because it is a quasi-public body, the correct action for Dr Michalak to take if she believed that the GMC had in fact discriminated against her for commencing the fitness to practise proceedings would be to seek a judicial review of the GMC’s decision.

Judicial Review involves looking at whether the public body acted within its powers in making a particular decision. It is a claim which must be brought in the High Court and is often very costly. However, the GMC’s point was that judicial review amounted to “proceedings in the nature of an appeal” and, therefore, the Employment Tribunal was not the right place for her to raise her claim of discrimination against them. This was the basis of the GMC’s appeal against the Employment Tribunal’s decision to allow the proceedings to continue and the Employment Appeal Tribunal agreed with the GMC.

Dr Michalak further appealed the decision of the Employment Appeal Tribunal and the  Court of Appeal who reversed the decision of the EAT and stated that the existence of Judicial Review did not fall within Section 120(7). The GMC then appealed the matter further to the Supreme Court.

Supreme Court Decision

The Supreme Court unanimously dismissed the GMC’s appeal and held that the Employment Tribunal did have jurisdiction to hear the discrimination claim, as section 120(7) did not cover judicial review.

The Supreme Court held that Judicial Review is not “in the nature of an appeal” for the purposes of section 120(7). The Court said that an “appeal” is a procedure which allows for a review of the original decision, allowing the appeal body to consider the basis on which the decision was made and allowing the appeal body the opportunity to substitute its own decision if necessary.

In contrast to this, Judicial Review is a challenge against the legality of a decision or the procedure by which the decision is reached. The Court in Judicial Review also cannot substitute its own decision for that of the decision-maker; therefore the Court concluded that this was not a true appeal.

The Supreme Court also rejected the argument that judicial review proceedings were provided by “virtue of an enactment”, and held that as Judicial Review originated from a common law procedure it, therefore, existed independently of any statute.

Impact of the Decision

The consequence of the Supreme Court’s decision allows those who wish to complain of unlawful discrimination by a qualification body to bring their claims in the Employment Tribunal so long as there is no statutory appeal process in existence.

There are distinct advantages for Claimants being able to bring a claim in the ET, including the tribunal’s expertise, its accessibility to litigants in person and its cost-free nature. This is in clear comparison to judicial review claims in the High Court which can be costly.

*All information is correct at the time of publishing

Chris King

Employment Law Specialist

Chris is one of our Employment Law Specialists from Napthens Solicitors. Read more

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