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Discrimination by qualification bodies: Michalak v General Medical Council [2017] UKSC 71

The Supreme Court has today put to rest a long-running ambiguity in how anti-discrimination laws can apply to qualification bodies such as the General Medical Council (“the GMC”).

Adam Ohringer of Cloisters, led by William Edis QC of 1 Crown Office Row represented the successful Claimant, Dr Michalak, in the Supreme Court.  Robin Allen QC and Nathan Roberts of Cloisters were instructed by the Equality and Human Rights Commission as an Intervener.

Under s.120(1)(a) of the Equality Act 2010 (“EqA”), a claim for discrimination against a qualification body such as the GMC, the Solicitors Regulation Authority or the General Pharmaceutical Council can be brought in the Employment Tribunal.  S.120(7) of the EqA provides an exception where the conduct complained of can, ‘by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal.’

The legislation empowering the various qualifications bodies provides for rights of appeal against certain decisions to the High Court.  For example, a sanction applied to a doctor by the GMC’s Medical Practitioner’s Tribunal Service under its fitness to practice jurisdiction can be appealed to the High Court under ss.38 and 40 of the Medical Act 1983.  So far, so good.  There is nothing surprising about a statutory right of appeal excluding other legal avenues.  But what happens if there is no specific right of appeal available against the decision; such as is the case where a decision is made to investigate a complaint?  What happens where the conduct complained of isn’t a decision at all, such as a delay in prosecuting a case or a failure to interview a witness?

The GMC’s argument has been that such conduct is amenable to judicial review and that this constitutes ‘proceedings in the nature of appeal by virtue of an enactment’, that enactment being s.31 of the Senior Courts Act.  This argument was accepted by the Employment Appeal Tribunal in Jooste v GMC [2012] EQLR 1048 and meant that aggrieved claimants were unable to seek redress through the Employment Tribunal and had instead to tackle the forbidding, technical and cost-bearing procedure in the Administrative Division of the High Court.

Overruling Jooste, the Supreme Court has now definitively ruled the argument to be ill-founded.  Lord Kerr stated as follows.

  • Firstly, judicial review is not in the nature of an appeal.  It is ‘proceedings in which the legality of any decision, or the procedure by which it is reached, is challenged.’  Further, the Court in a judicial review cannot substitute its own decision for that of the decision-maker.
  • Secondly, judicial review has its origins in the common law. Despite s.31 of the Senior Courts Act putting judicial review on a statutory footing, this only had the effect of regulating the procedure.  Judicial review exists independently of any statute.

As a consequence of this important judgment, a claimant who wishes to complain of unlawful discrimination by a qualification body can take their complaint to the Employment Tribunal in all cases, unless there is a specific alternative right of appeal against the impugned decision or conduct.

Adam Ohringer of Cloisters  

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