Equality claims and health regulators – Availability of JR does not oust jurisdiction of ET

Photo credit: Guardian

Jeremy Hyam QC

Michalak v The General Medical Council & Ors [2016] EWCA Civ 172: This important case deals with the remedies available to individuals who claim to have suffered from discrimination, victimization, harassment or detriment in the treatment they have received from a “qualifications body” under s.53 of the Equality Act 2010 viz. any authority or body which can confer a relevant qualification (e.g. the GMC, ACCA etc.). It also clarifies the understanding of the place of judicial review in the context of internal and statutory appeals in cases of alleged discrimination contrary to the Equality Act 2010.

Dr Eva Michalak’s name may sound familiar. She formerly worked as a consultant physician with an interest in kidney diseases at Pontefract General Infirmary. In 2011, in a widely publicised judgment she recovered record damages in respect of claims for sex and race discrimination and unfair dismissal against the Mid Yorkshire Hospitals NHS trust and three senior staff members. The tribunal panel said that they were “positively outraged at the way this employer has behaved” and concluded the Polish-born doctor would never be able to carry out her work again.Pending the outcome of her claim against her employer she had been referred by her employer to the General Medical Council. That body has the power and the duty to confer registration (essentially a license to practice) and in appropriate cases to remove or suspend (either temporarily or permanently) the registration of medical practitioners and therefore is a qualifications body within the meaning of s.53 Equality Act 2010.

She complained that in its consideration and investigation of her case the GMC had acted to cause her detriment. Her allegations against the GMC, and two named officers, included claims of harassment, sex, race and disability discrimination, and being subjected to a detriment.

Section 53 of the Equality Act provides that a qualifications body must not discriminate against a person upon whom it has conferred a relevant qualification by withdrawing, or varying the terms of the qualification, or (under s.53(2)(c) subjecting the person with the qualification to “any other detriment”).

At a preliminary hearing in 2014, Judge Keevash found that the ET had jurisdiction to hear her claims. But the GMC appealed on the basis that there was binding precedent, viz. the EAT’s decision in Jooste, UKEAT/0093/12/SM that the ET had no jurisdiction to entertain such a claim because of the operation of s.120(7) of the Equality Act. The parties agreed that Judge Keevash had misdirected himself, and Langstaff J. considered he was bound by the EAT decision in Jooste which he said: “establishes as a matter of principle and ratio that, where an application for judicial review may be brought in respect of the act complained of, the effect of s.120(7) of the Equality Act 2010 is to deny an Employment Tribunal jurisdiction.”

The legislative purpose of s.120(7) of the Equality Act 2010 was at the heart of Dr Michalak’s appeal. It provides that:-

“(7) Subsection 1(a) does not apply to a contravention of section 53 insofar as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal

HHJ McMullen QC had held in Jooste, that: “An appeal simply is the opportunity to have a decision considered again by a different body of people with power to overturn it”and that judicial review was caught by the words qualifying the relevant appellate or quasi-appellate proceedings as arising “by virtue of an enactment”. On that basis the availability of judicial review was plainly sufficient to oust the jurisdiction of the ET.

For the purposes of the appeal, there was no dispute that the matters complained of by Dr Michalak were matters which could be considered in an application for judicial review. The GMC’s case was that the right to proceed by way of judicial review arose by virtue of an enactment (the SCA 1981 s.31) and although once a common law right it was now on a statutory footing. It was irrelevant, they said, to consider whether Parliament might or might not have considered it more desirable in some cases to proceed before an Employment Tribunal than by way of judicial review.

However in the Court of Appeal, Ryder LJ (with whom Lord Justices Moore-Bick and Kitchin agreed) accepted Dr Michalak’s Counsel’s submissions as to the inadequacy of the remedy of judicial review, and the proper interpretation of s.120(7), identified important and significant differences between the remedies which can be granted by the High Court on judicial review and a tribunal such as the ET. The Court of Appeal recognised that allegations of discrimination may be fact-sensitive and that the Administrative Court would not normally hear witnesses in an application for judicial review, which should in any event be considered a process of last resort.

In particular, although the High Court can grant a declaration it would not ordinarily make a finding on contested evidence and cannot issue a recommendation in respect of the unlawful treatment alleged, namely discrimination, harassment or victimization. Furthermore, because the GMC is not a tribunal or court for the purposes of s.31(5A) the High Court cannot substitute its own decision for the decision in question. In the light of the submissions Ryder LJ held it could be inferred from s.120(7) itself that Parliament intended a specialist tribunal to be charged with taking decisions on discrimination and he concluded that the ET rather than the administrative court in its judicial review jurisdiction is the specialist tribunal charged by Parliament to make decisions of this kind.

The case is particularly interesting because the Court of Appeal have gone out of their way to explain that judicial review is not the type of process, whether in the nature of an appeal or not, that Parliament could have intended or did intend to capture by the enactment of s 120(7). It was particularly struck by the fact that earlier anti-discrimination legislation dating from a time when s 31 SCA 1981 had not put judicial review “on a statutory footing” contained a substantially similar provision which on no view ousted the jurisdiction of the IT (as it then was) where judicial review also lay. The Court of Appeal also referred to established public law cases such as R v. IRC ex p. Preston [1985] AC 835 where Lord Scarman explained the essential nature of a claim for judicial review: “the remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal.”

Lord Justice Ryder acknowledged that modern judicial review (which, post-Wilkinson can review a case on the merits if necessary) and post-Rayner v. SoS Justice must ensure (if necessary by giving enhanced scrutiny) that a public authority does not act incompatibly with convention rights) may well be “enacted” but explained that is not related to the statutory scheme within which the unlawful treatment complained of occurred nor was any remedy that is available in judicial review a remedy on the merits of discrimination, harassment, victimization or other unlawful treatment.

Both Lord Justice Ryder and Lord Justice Moore-Bick, considered that the legislative purpose of s.120(7) was to exclude from the jurisdiction of the ET only those cases in which some alternative provision has been made for obtaining a remedy for unlawful acts of the kind in question and that such remedy is to be found, if anywhere, in legislation which deals with the procedures governing the way a particular qualifications body reaches its decisions and provides an appeal process which extends to decision infected by unlawful acts of the kind under consideration.

Comment

This was a very significant victory for Dr Michalak which revisited a line of authority stretching back to Khan v. GMC [1986] 1032, overturned the leading case of Jooste, and explained the proper role of judicial review in the context of formal and informal appeal mechanisms from decisions by qualifications bodies. Essentially, the Court of Appeal have held that it does not follow from the fact that judicial review is and has always been a safeguard, or remedy of last resort, which can amount to an effective remedy where no statutory route of appeal, formal or informal has been provided, that the jurisdiction of Employment Tribunal to hear discrimination claims such as the present is ousted. This is because properly understood, judicial review is not an appeal but a collateral challenge, and judicial review proceedings in respect of such discrimination by the GMC, are not “proceedings in the nature of an appeal” arising “by virtue of an enactment”.

The upshot of this case will be that it is considerably easier (e.g. no permission stage, reduced costs-exposure etc.) to mount a challenge against qualifications bodies such as the GMC when decisions or investigations with respect to registration are made which arguably contravene s.53 of the Equality Act.