Dr Michalak and the GMC — Individuals can bring discrimination claims against their regulators in the Employment Tribunal

In the case of Dr Ewa Michalak, the Supreme Court has held that an individual can bring a discrimination claim against the General Medical Council (GMC) in the Employment Tribunal.

This potentially opens the floodgates for discrimination claims against other ‘qualification bodies’ which confer, renew or extend an ‘authorisation, qualification, recognition, registration, enrolment, approval or certification, which is needed for, or facilitates engagement in, a particular trade or profession.’

General Medical Council (GMC)

The GMC is a regulatory body that maintains the register of doctors and oversees medical education, training and revalidation of doctors. The GMC also has the power to investigate complaints against doctors through the Medical Practitioners’ Tribunal Service (MPTS), which has the power to revoke a medical practitioner’s authorisation to practise and can suspend or impose conditions on a practitioner’s registration.

Dr Michalak’s dismissal and Employment Tribunal claims

Dr Michalak was employed by the Mid-Yorkshire Hospitals NHS Trust from April 2002 until her dismissal in July 2008. Following her dismissal, Dr Michalak successfully brought claims in the Employment Tribunal against the Trust and three senior managers, one of whom was the HR Director, for unfair dismissal, sex and race discrimination and victimisation.

The Tribunal found that Dr Michalak, a female doctor who moved from Poland to practise in the UK, was subjected to a concerted campaign designed to bring her employment within the Trust to an end. Dr Michalak received a substantial compensation award, of almost £4.5 million, and a public apology from the Trust.

Referral to the GMC

Before the tribunal issued its decision, the Trust referred Dr Michalak to the GMC, raising issues about her conduct and fitness to practise. The Trust later accepted that there had not been proper grounds to refer Dr Michalak to the GMC. In the interim, however, the GMC commenced fitness to practise proceedings against Dr Michalak, which were not dropped.

As a result, Dr Michalak brought claims in the Employment Tribunal, alleging that the GMC had discriminated against her in the way in which it pursed those proceedings. Dr Michalak also 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 to have the complaint struck out, on the basis that the Tribunal did not have jurisdiction to hear the claims.

The claim was allowed to proceed in the Tribunal, but this decision was reversed by the Employment Appeals Tribunal (EAT), which held that Dr Michalak could appeal the acts of the GMC through the judicial review process. Dr Michalak appealed the decision of the EAT in the Court of Appeal, which held the Tribunal did have jurisdiction to deal with Dr Michalak’s complaints.

The matter then proceeded to the Supreme Court on appeal by the GMC.

Equality Act

Under the Equality Act 2010, Employment Tribunals have jurisdiction to determine complaints relating to an individual’s work. However, section 120(3) of the Act provides that this does not apply to discrimination by qualification bodies, if the act complained of may be subject to an appeal or proceedings in the nature of an appeal.

Any decisions that the GMC or MPTS make may be judicially reviewed in the High Court. The High Court may then:

• allow an appeal and quash the original decision
• substitute a new decision for the original decision, or
• remit the matter for re-hearing

The issue to be determined by the Supreme Court

The Supreme Court had to decide whether the availability of judicial review proceedings in respect of decisions or actions of the GMC triggered the exemption set out in the Equality Act and, as a result, the Tribunal did not have jurisdiction to hear Dr Michalak’s claims.

The issue to be determined was broken down into two strands:

1. Whether judicial review could be said to be an ‘appeal or proceedings in the nature of an appeal’
2. Whether judicial review was available ‘by virtue of an enactment’

The court held that judicial review was a means of challenging the legality of or procedure by which a decision was reached.

An ‘appeal’ however, is a review of an original decision in all its aspects. In an appeal, the appeal body can:

• examine the basis on which the original decision was made
• assess the merits of the conclusion reached, and
• substitute its own view

Lord Kerr’s view was that, in a discrimination case, an appeal must confront the question of whether discrimination had taken place and not just review the legality or procedure of reaching a particular decision, as in judicial review.

Supreme Court decision

In determining the second issue, the Supreme Court rejected the GMC’s argument that judicial review proceedings became proceedings ‘by virtue of an enactment’.

The GMC had sought to establish that as a result of the judicial review jurisdiction being placed on a statutory footing by the Senior Courts Act 1981, and developments in the grounds of judicial review, the Administrative Court was the only forum within which a claim for discrimination against a qualification body could be heard.

The Supreme Court dismissed this argument and held that Parliament had not intended to remove all decisions by qualifications bodies from the jurisdiction of the Employment Tribunal, just because those decisions were open to judicial review.

Accordingly, the Supreme Court found that judicial review was not in the nature of an appeal for these purposes and Dr Michalak could bring a claim for discrimination against the GMC in the Employment Tribunal.

Commentary

The implication of this judgment is that, in the future, professionals can bring discrimination claims against their regulators in the Employment Tribunal, even if judicial review is available as a remedy. This is the case unless there is a statutory appeal process.

When determining which forum to use, individuals should remember that while judicial review may deal with issues of procedural unfairness and the lawfulness of a decision, the Employment Tribunal may be able to consider why a regulator made a decision and provide a remedy for discrimination claims. Furthermore, the Employment Tribunal can order a compensatory award if it finds that discrimination has occurred.