Michalak v General Medical Council and others [2017] UKSC 71

Dr Michalak, a doctor dismissed unfairly, alleged the GMC discriminated against her in fitness to practise proceedings. The Supreme Court held that judicial review is not a 'proceeding in the nature of an appeal' under section 120(7) Equality Act 2010, so the Employment Tribunal retained jurisdiction.

Facts

Dr Ewa Michalak was employed as a doctor by the Mid-Yorkshire Hospitals NHS Trust from April 2002 until her dismissal in July 2008. The Employment Tribunal found her dismissal unfair and tainted by sex and race discrimination and victimisation, leading to compensation and a public apology. Before the tribunal’s determination, the Trust referred her to the General Medical Council (GMC), which commenced fitness to practise proceedings. The Trust later accepted there had been no proper grounds for the referral, and Dr Michalak remains registered.

In August 2013, Dr Michalak presented a claim to the Employment Tribunal alleging that the GMC, its chief executive, and an investigation officer had discriminated against her in the conduct of the fitness to practise proceedings and in failing to investigate her complaints against other doctors at the Trust. The appellants sought to strike out the claim on jurisdictional grounds. The Employment Tribunal accepted jurisdiction for post-October 2010 discrimination claims. The Employment Appeal Tribunal reversed that decision, but the Court of Appeal restored it. The GMC appealed to the Supreme Court.

Issues

The sole issue was whether the availability of judicial review in respect of the GMC’s decisions excluded the Employment Tribunal’s jurisdiction under section 120(7) of the Equality Act 2010. This required determining: (i) whether judicial review constitutes a ‘proceeding in the nature of an appeal’; and (ii) whether judicial review is available ‘by virtue of an enactment’. Both conditions had to be satisfied for the exclusion to apply.

Arguments

Appellants (GMC)

The GMC argued that section 120(7) of the Equality Act precluded the Employment Tribunal’s jurisdiction because judicial review afforded an appeal-like remedy for the acts complained of. It contended that judicial review proceedings had become proceedings ‘by virtue of an enactment’ upon the coming into force of section 31(1) of the Senior Courts Act 1981. It relied on earlier decisions of the Employment Appeal Tribunal in Tariquez-Zaman and Jooste, which had treated judicial review as a proceeding in the nature of an appeal.

Respondent (Dr Michalak)

The respondent argued that judicial review is not a proceeding in the nature of an appeal because it does not allow merits review or substitution of the original decision. She also contended that judicial review is not available by virtue of an enactment, as it has its origins in the common law.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Kerr gave the leading judgment, with Lord Mance providing additional observations.

Proceedings in the nature of an appeal

Lord Kerr held that an ‘appeal’, unless qualified, involves a review of an original decision in all its aspects, including its merits, with power to substitute a new decision. Judicial review, by contrast, examines the legality and procedure of a decision, not its merits. Even where proportionality is engaged, the review does not amount to a full merits review. Citing Keyu v Secretary of State for Foreign and Commonwealth Affairs, the court emphasised that proportionality review does not require the reviewer to substitute its opinion for that of the decision-maker.

Lord Kerr observed that a discrimination complaint requires an open-ended inquiry into whether discrimination actually occurred, which cannot be answered by applying judicial review standards of reasonableness. On a successful judicial review, the High Court declares the decision unlawful or quashes it but does not substitute its own decision. Such constraints are inconsistent with the nature of an appeal.

The court considered Khan v General Medical Council [1996] ICR 1032 and held that Hoffmann LJ’s reference to a decision being ‘reversed by a differently constituted set of persons’ referred to the Review Board’s powers, not judicial review. The Employment Appeal Tribunal’s decisions in Tariquez-Zaman and Jooste, which treated judicial review as an appeal-like proceeding, were disapproved.

By virtue of an enactment

The court rejected the argument that section 31(1) of the Senior Courts Act 1981 transformed judicial review into a procedure available ‘by virtue of an enactment’. Judicial review’s origins lie in the common law, and section 31 regulates rather than establishes the procedure. Lord Kerr cited Laws LJ in R (Beeson) v Dorset County Council and Lady Hale in R (Cart) v Upper Tribunal, both emphasising the common law foundation of judicial review.

The court endorsed Moore-Bick LJ’s reasoning in the Court of Appeal that the words ‘by virtue of an enactment’ refer to cases where specific legislative provision is made for an appeal in relation to a particular body’s decisions, not to the general availability of judicial review. Had Parliament intended to remove all judicially reviewable decisions of qualification bodies from the Employment Tribunal’s jurisdiction, it would have done so expressly.

Lord Mance’s observations

Lord Mance agreed with Lord Kerr but added that he would not circumscribe the future development of judicial review, noting that judicial review may sometimes lead to a conclusion that only one outcome is permissible, and that appellate review itself can be circumscribed by deference to the original decision-maker. He emphasised that the Employment Tribunal provided the natural forum for the respondent’s complaints and noted that where the Medical Act 1983 allows an appeal, it does so expressly.

Implications

The decision confirms that the Employment Tribunal retains jurisdiction to determine discrimination claims brought by individuals against qualification bodies such as the GMC where no statutory appeal mechanism exists, even where judicial review may be available. The decision clarifies two important propositions: first, judicial review is not a proceeding ‘in the nature of an appeal’ for the purposes of section 120(7) of the Equality Act 2010 because it does not entail a full merits review or the power to substitute decisions; and second, judicial review does not arise ‘by virtue of an enactment’ merely because its procedure is regulated by section 31 of the Senior Courts Act 1981.

The decision is significant for professionals subject to regulatory bodies who wish to bring discrimination claims about how those bodies have conducted their functions. It preserves access to the specialist Employment Tribunal, which has expertise in discrimination claims, is accessible to litigants in person, and generally operates as a cost-free jurisdiction with a comprehensive range of remedies including declarations, compensation, and recommendations.

The court also issued a practical caution: where a statutory appeal is available, employment tribunals should be robust in striking out proceedings before them and should critically examine at an early stage whether statutory appeals exist. The case is therefore limited to circumstances in which no specific statutory appeal mechanism is provided for the decision under challenge.

The decision overruled the Employment Appeal Tribunal’s decision in Jooste v General Medical Council and disapproved the obiter reasoning in Tariquez-Zaman. It reaffirms the common law foundation of judicial review, an issue with broader constitutional significance beyond the immediate context of discrimination claims.

Verdict: Appeal dismissed. The Employment Tribunal has jurisdiction to determine Dr Michalak’s discrimination claims against the GMC, as judicial review is neither a proceeding in the nature of an appeal nor available by virtue of an enactment for the purposes of section 120(7) of the Equality Act 2010.

Source: Michalak v General Medical Council and others [2017] UKSC 71