Court of Appeal judgment in the case of Dr Ewa Michalak
The Court of Appeal has passed judgment on an important case with potentially wide-ranging implications for all regulated professionals.
The case concerns the question how a regulated professional person who claims to have suffered from discrimination by his/her qualifications body should seek a remedy.
Background to the case
Following lengthy disciplinary proceedings which were eventually stayed with no finding against her, our client Dr Ewa Michalak brought a case against the General Medical Council (GMC) in the Employment Tribunal. In response, the GMC argued that the Employment Tribunal had no jurisdiction to hear the complaint. The case turned on a point of statutory interpretation and an analysis of Parliament’s intentions. The argument concerned the meaning of s120 (7) Equality Act 2010 which ousts jurisdiction in the Employment Tribunal when “the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of the appeal.”
The GMC argued that where its decisions could be challenged either by an appeal process prescribed in the Medical Act or by Judicial Review (once a common law remedy, but now a remedy under statute), those decisions fell outside the jurisdiction of the Employment Tribunal. Since most, if not all, its decisions would be covered in this way, that seemed to leave little or no jurisdiction to the Employment Tribunal.
The Court of Appeal decided that the availability of Judicial Review does not preclude a claim in the Employment Tribunal. That was not the intention of Parliament, it said. The Court of Appeal agreed with the submissions we made on Dr Michalak’s behalf that the Employment Tribunal is set up specifically to deal with discrimination and related issues. Its rules on disclosure and evidence are designed for that purpose, whereas the process in Judicial Review is quite different and is not well adapted to making findings or providing remedies for such matters.
Judgment was handed down on Wednesday 23 March. The GMC sought leave to appeal to the Supreme Court but leave was refused.
The judgment is relevant not just to doctors and the GMC, but to all regulated professionals, e.g. nurses, teachers, accountants, etc and their respective qualification bodies. It remains to be seen whether this will open the flood gates to such claims in the Employment Tribunal.
You can read the full judgment here: http://www.bailii.org/ew/cases/EWCA/Civ/2016/172.html
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