News Professional Discipline 6th Nov 2017

Discrimination and the GMC – Michalak v GMC [2017] UKSC 71

The Supreme Court has turned its mind to the question: can you bring a claim for discrimination against the GMC? Dr Michalak was dismissed from Mid-Yorkshire Hospitals NHS Trust. She successfully brought an employment claim against the Trust and received both compensation and a public apology. Beforehand, however, the Trust had referred her case to the GMC. This was eventually dropped. She has now brought a claim for discrimination against the GMC arising out of the it dealt with her – not least the failure of the GMC to investigate her complaints against other doctors employed at the Trust.

The GMC argued as a preliminary legal point that the Employment Tribunal had no jurisdiction to consider such an appeal – an issue which ultimately brought the case to the Supreme Court. The basis for the submission was s. 120(1)(a) Equality Act 2010: this precluded any claim for discrimination being heard by the Employment Tribunal if “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’s governing legislation did, of course, include various routes of appeal. None of these applied, however, to the alleged acts of discrimination in her case. However, it had been open to her to seek judicial review. The GMC argued that this right was “a proceeding in the nature of an appeal” and was available to her “by virtue of an enactment”.

The Supreme Court profoundly disagreed with this interpretation. An “appeal” conventionally meant “a procedure which entails a review of an original decision in all its aspects”. Judicial review, on the other hand, concerned the legality of the decision, or the procedure used. In the realm of Human Rights, it may also require an assessment of proportionality. Nonetheless, this cannot be equated with an appeal. The issue of discrimination requires an open-ended inquiry, not a judicial review assessment of whether the act of an individual fell within the range of reasonable responses.

The court also rejected the suggestion that judicial review was available “by virtue of an enactment”. The GMC had based its argument on s. 31(1) Senior Court Acts 1981, which states:

“An application to the High Court for one or more of the following forms of relief…
shall be made in accordance with rules of court by a procedure to be known as an application for judicial review”

It claimed this had enshrined judicial review in statute and brought it within s. 120(1)(a) Equality Act. Lord Kerr observed that this was based on a misinterpretation of the Act, which did not create judicial review, but rather regulated it. In drafting the Equality Act, had Parliament intended to place all decisions susceptible to judicial review outside the remit of the Act, it would have said so expressly. The GMC’s appeal was rejected and the way opened for Dr Michalak to pursue her claim.

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