JUDGMENT
Michalak (Respondent) v General Medical Council
and others (Appellants)
before
Lady Hale
Lord Mance
Lord Kerr
Lord Wilson
Lord Hughes
JUDGMENT GIVEN ON
1 November 2017
Heard on 4 July 2017
Appellants Respondent
John Bowers QC William Edis QC
Ivan Hare QC Adam Ohringer
(Instructed by GMC
Legal
)
(Instructed by
RadcliffesLeBrasseur
(Leeds)
)
Intervener (Solicitors
Regulation Authority)
Catherine Callaghan
Intervener (General
Pharmaceutical Council)
Adam Solomon
(Instructed by Fieldfisher
)
Intervener (Equality and
Human Rights
Commission)
Robin Allen QC
(Instructed by Equality &
Human Rights
Commission
)
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LORD KERR: (with whom Lady Hale, Lord Mance, Lord Wilson and Lord
Hughes agree)
Introduction
1. Ewa Michalak began employment as a doctor with the Mid-Yorkshire
Hospitals NHS Trust in April 2002. She remained in that employment until she was
dismissed in July 2008. Following her dismissal, Dr Michalak brought an unfair
dismissal claim against the Trust in the Employment Tribunal. The tribunal found
that her dismissal had been unfair and contaminated by sex and race discrimination
and victimisation. Dr Michalak received a compensation award and a public apology
from the Trust.
2. Before the tribunal had issued its determination, and, on foot of Dr
Michalak’s dismissal, the Trust had reported her to the General Medical Council
(the GMC) in relation to her conduct, so that the question of whether she should
continue to be registered as a medical practitioner could be considered. The Trust
later accepted that there had not been proper grounds on which to refer her to the
GMC. She remains registered as a medical practitioner, therefore.
3. In the meantime, however, the GMC had begun fitness to practise
proceedings against Dr Michalak under Part V of the Medical Act 1983. She claims
that the GMC discriminated against her in the way in which it pursued those
proceedings. She also alleges that the discrimination extended to the GMC’s failure
to investigate complaints that she had made against other doctors employed by the
Trust.
4. Dr Michalak presented a claim to the Employment Tribunal in relation to
these complaints in August 2013. The respondents named on the application form
were the GMC, Niall Dickson, its chief executive, and Simon Haywood, an
investigation officer of the GMC. They are the current appellants, although for all
intents and purposes, the effective appellant is the GMC. It is agreed that the second
and third appellants’ cases do not require separate consideration.
5. The appellants applied to have Dr Michalak’s complaint to the tribunal struck
out on the basis that the tribunal did not have jurisdiction to hear the claims. The
complaints of discrimination and breach of contract against the GMC relating to the
period before 1 October 2010 were struck out. The tribunal decided that it did have
jurisdiction in relation to complaints regarding unlawful sex, race and disability
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discrimination after that date but not in relation to breach of contract. So far as the
complaints against the second and third appellants were concerned, the complaint
was confined to one of unlawful discrimination and the tribunal considered that it
had jurisdiction to entertain this complaint.
6. The appellants appealed, arguing that section 120(7) of the Equality Act 2010
precluded jurisdiction, since judicial review afforded an appeal for the acts
complained of. The Employment Appeal Tribunal (Langstaff P) agreed and allowed
the appeal. An appeal against that decision was successful before the Court of
Appeal (Moore-Bick, Kitchin and Ryder LLJ) [2016] ICR 628. It held that the
Employment Tribunal had jurisdiction to deal with Dr Michalak’s complaints and
remitted the case to the tribunal for further case management.
7. The appeal to this court raises a single issue. It is whether the availability of
judicial review proceedings in respect of decisions or actions of the first appellant
excludes the jurisdiction of the Employment Tribunal by virtue of section 120(7) of
the Equality Act.
Section 120(7)
8. Under section 120(1)(a) of the Equality Act, an employment tribunal has
jurisdiction to determine a complaint relating to a person’s work. But section 120(7)
provides that “subsection (1)(a) does not apply to a contravention of section 53 in
so far as the act complained of may, by virtue of an enactment, be subject to an
appeal or proceedings in the nature of an appeal”. Section 53 deals with
discrimination by qualifications bodies. Section 54 defines qualifications bodies. In
its material parts, it provides:
“(2) A qualifications body is an authority or body which can
confer a relevant qualification.
(3) A relevant qualification is an authorisation,
qualification, recognition, registration, enrolment, approval or
certification which is needed for, or facilitates engagement in,
a particular trade or profession.
…
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(5) A reference to conferring a relevant qualification
includes a reference to renewing or extending the conferment
of a relevant qualification.”
9. All parties accept, therefore, that the GMC is plainly a qualifications body. It
is an independent organisation which regulates the profession of doctors within the
United Kingdom under the Medical Act 1983. Its main objective, under section
1(1A) of that Act, is “to protect, promote and maintain the health and safety of the
public”. The GMC maintains the register of doctors and is responsible for certain
undergraduate and postgraduate medical education, and for the training and
revalidation of doctors. Under Part V of the Medical Act and the General Medical
Council (Fitness to Practise) Rules 2004, the GMC has power to investigate
complaints against doctors.
10. Under the “fitness to practise” jurisdiction, the GMC receives and considers
complaints about medical practitioners. Where it is decided that the complaints
warrant an inquiry, the GMC prepares the evidence and the drafting of allegations.
Any hearing that follows is conducted by the Medical Practitioners’ Tribunal
Service. It is described as a part of the GMC but is independent of it.
11. A decision to erase a medical practitioner’s name from the register or to
suspend, or to impose conditions on his or her registration may be appealed to the
High Court under sections 38 and 40 of the Medical Act. The High Court may allow
the appeal and quash the original decision; it may also substitute a new decision for
the original decision; or remit the matter for re-hearing.
12. The Medical Act also provides for various other types of appeal against
fitness to practise decisions. To take an example, section 41A(10) states that the
“relevant court” has the power to terminate an interim order of suspension, and
section 41A(14) states that “relevant court” has the same meaning as in section
40(5). Section 40(5) contains the definition of the “relevant court” as the High Court.
In effect, therefore, an appeal against the making of an interim order of suspension
lies to the High Court. But neither this nor any of the other possible statutory avenues
of appeal is relevant to the respondent’s position. Her complaints do not relate to
any action by the GMC as to her registration. Her series of claims of discrimination
on the part of the GMC relate to the manner in which it pursued its fitness to practise
application and its failure to investigate her complaints against other doctors in the
trust where she had been employed. No statutory appeal is available to her to pursue
those complaints.
13. It is accepted, however, that she could seek judicial review of the decisions
that are said to constitute the various acts of discrimination. The essential issue in
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the case, therefore, is whether the availability of judicial review animates the
exemption contained in section 120(7). This in turn depends on whether that remedy
can properly be described as “a proceeding in the nature of the appeal” and whether
it is available to the respondent “by virtue of an enactment”. It is important to note
that both these conditions must be satisfied before section 120(7) comes into play.
Both issues will have to be examined separately but, first, one must look at the
context in which they require to be decided and that is provided principally by the
Equality Act itself.
The Equality Act
14. The purpose of the Equality Act 2010, as explained in the Explanatory
Memorandum (para 10), is “to harmonise discrimination law, and to strengthen the
law to support progress on equality”. The Act repealed and replaced existing
equality legislation, including the Equal Pay Act 1970, the Sex Discrimination Act
1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995.
15. In these various items of legislation, Parliament provided for discrimination
claims in the work, employment and occupation contexts to be dealt with by a
specialist tribunal, first called the Industrial Tribunal and now known as the
Employment Tribunal. The establishment of these specialist tribunals reflected the
growing awareness of the importance which should be attached to equal treatment
rights in the field of employment, not least because those rights are protected under
European Union law – see, for instance, article 16 of the Framework Equality
Directive (2000/78/EC) which required member states to take measures to ensure
that any laws, regulations and administrative provisions contrary to the principle of
equal treatment were abolished.
16. Not only was the Employment Tribunal designed to be a specialised forum
for the resolution of disputes between employee and employer, it was given a
comprehensive range of remedies which could be deployed to meet the variety of
difficulties that might be encountered in the employment setting. Thus, for instance,
the tribunal may make a declaration as to the rights of the complainant and the
respondent in relation to the matters that arise in the proceedings before it (section
124(2)(a)); it may order a respondent employer to pay compensation to a
complainant employee (section 124(2)(b)); and it may make a recommendation
(section 124(2)(c)). If a recommendation is not followed, the tribunal has power
(under section 124(7)) to increase the award of compensation, or, if an award has
not been already made, to make one.
17. These considerations provide the backdrop to the proper interpretation of
section 120(7). Part of the context, of course, is that appeals from decisions by
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qualification bodies other than to the Employment Tribunal are frequently available.
It would obviously be undesirable that a parallel procedure in the Employment
Tribunal should exist alongside such an appeal route or for there to be a proliferation
of satellite litigation incurring unnecessary cost and delay. Where a statutory appeal
is available, employment tribunals should be robust in striking out proceedings
before them which are launched instead of those for which specific provision has
been made. Employment tribunals should also be prepared to examine critically, at
an early stage, whether statutory appeals are available.
18. Parliament plainly intended that section 120(7) would exclude jurisdiction
for certain challenges against decisions of qualification bodies. The rationale for
doing so is plain. Where Parliament has provided for an alternative route of
challenge to a decision, either by appeal or through an appeal-like procedure, it
makes sense for the appeal procedure to be confined to that statutory route. This
avoids the risk of expensive and time-consuming satellite proceedings and provides
convenience for appellant and respondent alike. That rationale can only hold,
however, where the alternative route of appeal or review is capable of providing an
equivalent means of redress.
19. Quite apart from the range of remedies available to it, the Employment
Tribunal, as a forum for dealing with complaints by employees concerning their
employment, has distinct advantages for complainants. It is a specialist tribunal with
expertise in hearing discrimination claims across a range of sectors; it is designed to
be accessible to litigants in person; and it is generally a cost-free jurisdiction (Rule
74 of the Employment Tribunal Rules of Procedure).
Proceedings in the nature of an appeal
20. In its conventional connotation, an “appeal” (if it is not qualified by any
words of restriction) is a procedure which entails a review of an original decision in
all its aspects. Thus, an appeal body or court may examine the basis on which the
original decision was made, assess the merits of the conclusions of the body or court
from which the appeal was taken and, if it disagrees with those conclusions,
substitute its own. Judicial review, by contrast, is, par excellence, a proceeding in
which the legality of or the procedure by which a decision was reached is challenged.
It is, of course, true that in the human rights field, the proportionality of a decision
may call for examination in a judicial review proceeding. And there have been
suggestions that proportionality should join the pantheon of grounds for challenge
in the domestic, non-human rights field – see, for instance, Kennedy v Charity
Commission (Secretary of State for Justice intervening) [2014] UKSC 20; [2015]
AC 455, paras 51 and 54; and Pham v Secretary of State for the Home Department
(Open Society Justice Initiative intervening) [2015] UKSC 19; [2015] 1 WLR 1591,
paras 96, 113 and 115; and Keyu v Secretary of State for Foreign and
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Commonwealth Affairs [2015] UKSC 69; [2016] AC 1355, paras 133, 143 and 274-
276. But an inquiry into the proportionality of a decision should not be confused
with a full merits review. As was said in Keyu at para 272:
“… a review based on proportionality is not one in which the
reviewer substitutes his or her opinion for that of the decisionmaker. At its heart, proportionality review requires of the
person or agency that seeks to defend a decision that they show
that it was proportionate to meet the aim that it professes to
achieve. It does not demand that the decision-maker bring the
reviewer to the point of conviction that theirs was the right
decision in any absolute sense.”
21. Judicial review, even on the basis of proportionality, cannot partake of the
nature of an appeal, in my view. A complaint of discrimination illustrates the point
well. The task of any tribunal, charged with examining whether discrimination took
place, must be to conduct an open-ended inquiry into that issue. Whether
discrimination is in fact found to have occurred must depend on the judgment of the
body conducting that inquiry. It cannot be answered by studying the reasons the
alleged discriminator acted in the way that she or he did and deciding whether that
lay within the range of reasonable responses which a person or body in the position
of the alleged discriminator might have had. The latter approach is the classic
judicial review investigation.
22. On a successful judicial review, the High Court merely either declares the
decision to be unlawful or quashes it. It does not substitute its own decision for that
of the decision-maker. In that sense, a claim for judicial review does not allow the
decision of the GMC to be reversed. It would be anomalous for an appeal or
proceedings in the nature of an appeal to operate under those constraints. An appeal
in a discrimination case must confront directly the question whether discrimination
has taken place, not whether the GMC had taken a decision which was legally open
to it.
23. The genesis of the view that judicial review was in the nature of an appeal
lies in the obiter dictum observations of His Honour Judge McMullen QC in
Tariquez-Zaman v General Medical Council (UKEAT/0292/06/DM). In that case,
the issue was whether section 54(2) of the Race Relations Act 1976 (which was in
similar terms to section 120(7) of the Equality Act) precluded the Employment
Tribunal from entertaining the complainant’s claim. Judge McMullen’s conclusion
on the issue was obiter because the claimant had voluntarily relinquished his
registration. There was therefore no action by the GMC on which Dr Zaman could
found his claim. At para 31 of his judgment, Judge McMullen dealt with the
argument that judicial review was in the nature of an appeal in these terms:
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“… judicial review is aptly described as proceedings in the
nature of an appeal. Judges in the administrative court are
familiar with dealing with cases under the Medical Act in the
form of appeals proper; thus, they constitute the obvious
destination intended by Parliament for disputes of this nature,
once a decision had been made at first instance. So, if I were
required to make a decision, I would uphold the submission that
section 54(2) ousts the jurisdiction of the ET because, in this
case, proceedings can be brought by way of judicial review.”
24. Judge McMullen had relied on the decision of the Court of Appeal in the case
of Khan v General Medical Council [1996] ICR 1032. In that case, the appellant’s
application for full registration as a qualified medical practitioner had been refused
by the GMC after a five-year maximum period of limited registration. His
application for full registration in accordance with section 25 of the Medical Act
1983 was refused by the GMC. He then applied to the Review Board for Overseas
Qualified Practitioners for a review pursuant to section 29 of the Act. That
application failed, as did a second application and request for review. The appellant
then made a complaint to an industrial tribunal that he had been indirectly
discriminated against on the ground of his race within the meaning of section 1(1)(b)
of the Race Relations Act 1976, contrary to section 12(1) of the Act. On a
preliminary issue the industrial tribunal found that the right under section 29 of the
Medical Act 1983 to apply for a review of the decision of the General Medical
Council was a proceeding, “in the nature of an appeal” for the purposes of section
54(2) of the Race Relations Act 1976 and the appellant’s right to present a claim
under section 54(1) was therefore excluded.
25. The appellant’s appeal to the Court of Appeal was, unsurprisingly, dismissed.
It was clear that his application to the Review Board constituted a proceeding in the
nature of an appeal. The question of whether judicial review, as opposed to review
by a differently constituted body, would qualify as a proceeding in the nature of an
appeal, was not germane to the issue in Khan. In Zaman, however, Judge McMullen
found a passage from the judgment of Hoffmann LJ to be particularly instructive.
At 1042, Hoffmann LJ had observed:
“It is a short question of construction which, in my judgment,
admits of an easy answer, namely, ‘Yes’. Section 29 of the Act
of 1983 allows the decision of the General Medical Council to
be reversed by a differently constituted set of persons. For
present purposes, I think that this is the essence of what is
meant by ‘proceedings in the nature of an appeal’. I note that
in Wootton v Central Land Board [1957] 1 WLR 424 Lord
Evershed MR had to consider whether an application to the
Lands Tribunal by a party who was dissatisfied with the
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determination of a land value by the Central Land Board was
in the nature of an appeal. He maintained that it was. He said
that it might fairly be described as an appeal to another body
having the right either of affirming the development value or
altering it.”
26. In saying that the decision could “be reversed by a differently constituted set
of persons”, Hoffmann LJ did not have in mind a judicial review challenge, in my
opinion. It was because the Review Board could, by the recommendation that they
made to the President of the GMC, effectively reverse the decision of the GMC, that
he considered that a review was in the nature of an appeal. The review by the Board
was open-ended and the decision that they were entitled to reach was unconstrained
and not inhibited by the circumstance that the GMC had reached a particular
decision.
27. Hoffmann LJ did refer to judicial review later in his judgment. At p 1043,
dealing with an argument that claimants such as Dr Khan were not able to pursue
claims for race or sex discrimination if they were not permitted to make complaints
to an industrial tribunal, he said this:
“For my part, I do not see why [an application for review under
section 29] should not be regarded as an effective remedy
against sex or race discrimination in the kind of case with
which section 12(1) of the Race Relations Act 1976 deals. That
concerns qualifications for professions and trades. Parliament
appears to have thought that, although the industrial tribunal is
often called a specialist tribunal and has undoubted expertise in
matters of sex and racial discrimination, its advantages in
providing an effective remedy were outweighed by the even
greater specialisation in a particular field or trade or
professional qualification of statutory tribunals such as the
review board, since the review board undoubtedly has a duty to
give effect to the provisions of section 12 of the Act of 1976:
see per Taylor LJ in R v Department of Health, Ex p Gandhi
[1991] ICR 805, 814. This seems to me a perfectly legitimate
view for Parliament to have taken. Furthermore, section 54(2)
makes it clear that decisions of the review board would
themselves be open to judicial review on the ground that the
board failed to have proper regard to the provisions of the Race
Relations Act 1976. In my view, it cannot be said that the
Medical Act 1983 does not provide the effective remedy
required by Community law.”
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28. It is important to understand that Hoffmann LJ was not referring here to
judicial review as a possible candidate for inclusion in the category of a proceeding
in the nature of an appeal. His remarks in this passage were made in the context of
an argument that, in order to have an effective remedy, a claimant had to be allowed
to present a complaint to the industrial tribunal. He was merely pointing out that the
availability of the review procedure, especially when considered with the
opportunity to apply for judicial review of that review provided an adequate remedy.
29. More importantly, this passage emphasises the breadth of the review
procedure. As Hoffmann LJ pointed out, the review board was bound to have proper
regard to the provisions of the Race Relations Act. It could only do so by conducting
a scrupulous inquiry as to whether the discrimination alleged had in fact taken place
– in other words, a full-blown inquiry into the allegations of discrimination was
required. I do not consider, therefore, that the decision in Khan supports the
proposition that section 54(2) ousted the jurisdiction of the Employment Tribunal
because proceedings could have been brought by way of judicial review.
30. Judge McMullen returned to this theme in his later decision in Jooste v
General Medical Council [2012] EQLR 1048. In that case Dr Jooste claimed that
the acts of an “Interim Orders Panel” of the GMC suspending his registration were
discriminatory under the Equality Act. Judge McMullen, sitting in the Employment
Appeal Tribunal, upheld the decision of the Employment Tribunal, that it had no
jurisdiction to hear the claimant’s complaints against the GMC as the remedy
available in judicial review was an alternative statutory remedy under section
120(7). At para 44 of his judgment he said that “an appeal simply is the opportunity
to have a decision considered again by a different body of people with power to
overturn it.” For the reasons given earlier, I cannot agree with that statement. An
appeal is different from a review of the legal entitlement to make a decision; it
involves an examination of what decision should be taken in the dispute between
the parties. The Court of Appeal in the present case concluded that Jooste had been
wrongly decided. I agree.
By virtue of an enactment
31. The GMC accepts that when the provisions which preceded section 120(7)
were originally enacted they did not exclude decisions subject to challenge by way
of the prerogative writs. That is because judicial review originated as a common law
procedure and not by virtue of any enactment. The appellant argues, however, that
judicial review proceedings became proceedings “by virtue of an enactment” on the
coming into force of the Senior Courts Act 1981. Section 31(1) of that Act provides:
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“(1) An application to the High Court for one or more of the
following forms of relief, namely –
(a) a mandatory, prohibiting or quashing order;
(b) a declaration or injunction under subsection (2);
or
(c) an injunction under section 30 restraining a
person not entitled to do so from acting in an office to
which that section applies,
shall be made in accordance with rules of court by a procedure
to be known as an application for judicial review.”
32. The appellants’ case misconstrues both section 31(1) of the Senior Courts
Act and section 120(7) of the Equality Act 2010. It rests on a misunderstanding of
the nature of judicial review. Judicial review is not a procedure which arises “by
virtue of” any statutory source. Its origins lie in the common law. As Laws LJ said
in R (Beeson) v Dorset County Council [2002] EWCA Civ 1812:
“The basis of judicial review rests in the free-standing principle
that every action of a public body must be justified by law, and
at common law the High Court is the arbiter of all claimed
justifications.” (at para 17) [emphasis added]
See also the observations of Lady Hale in R (Cart) v The Upper Tribunal [2011]
UKSC 28; [2012] 1 AC 663, para 37:
“… the scope of judicial review is an artefact of the common
law whose object is to maintain the rule of law – that is to ensure
that, within the bounds of practical possibility, decisions are
taken in accordance with the law, and in particular the law
which Parliament has enacted, and not otherwise.”
33. Section 31 of the Senior Courts Act did not establish judicial review as a
procedure, but rather regulated it. The remedies remain the same as those under the
prerogative writs. All that section 31 does is to require that applications for judicial
review be brought by way of a new procedure under the rules of court. The point
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was put succinctly and clearly in terms with which I fully agree by Moore-Bick LJ
at para 53 of his judgment in the Court of Appeal in the present case, where he said:
“… the words ‘by virtue of an enactment’ in section 120(7) are
directed to cases in which specific provision is made in
legislation for an appeal, or proceedings in the nature of an
appeal, in relation to decisions of a particular body, as, for
example, in Khan v General Medical Council [1996] ICR 1032.
They are not … intended to refer to the general right to seek
judicial review merely because, since 1981, that happens to
have been put on a statutory footing.”
34. Another way of looking at the question is to consider what the effect would
be of the repeal of the 1981 Act. I suggest that the High Court’s jurisdiction would
remain, even if the procedure by which it would have to be brought might require to
be provided for in any amending legislation.
35. Section 120(7) is part of a carefully constructed statutory scheme. It is the
most recent incarnation of similarly worded provisions in legislation such as is
mentioned in para 14 above. Before 1981, there could have been no question of
judicial review coming within any of the predecessor provisions. Given the
importance of judicial review, it is to be assumed that Parliament would have had
the procedure in mind when it formulated the phrase now contained in section
120(7). Had it, in 1981 or in 2010, intended to remove all decisions by qualification
bodies whose decisions were susceptible to judicial review from the jurisdiction of
the Employment Tribunal, one would surely expect that to be provided for expressly.
Conclusions
36. In my view, judicial review in the context of the present case is not in the
nature of an appeal. Nor is it a remedy provided by reason of an enactment. I would
dismiss the appeal.
LORD MANCE:
37. I agree with Lord Kerr that the appeal should be dismissed broadly for the
reasons he gives. My only additional observations are these:
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i) I would not circumscribe the development of judicial review or its
ability to cater, in appropriate circumstances, for close examination of a claim
on its merits: see eg the authorities which Lord Kerr cites in para 20;
ii) judicial review may, in appropriate circumstances, lead the court to a
conclusion that there exists only one possible outcome of a relevant
legislative or executive decision-making process: see eg In re G (Adoption:
Unmarried Couple) [2008] UKHL 38; [2009] AC 173, para 144;
iii) conventional appellate review is itself not infrequently circumscribed
by considerations of respect for the original or first instance decision-maker:
see eg the discussion in Assicurazioni Generali SpA v Arab Insurance Group
(Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577; see also Datec
Electronic Holdings Ltd v United Parcels Services Ltd [2007] UKHL 23;
[2007] 1 WLR 1325.
38. Here, however, the Employment Tribunal offers the natural and obvious
means of recourse in respect of the respondent’s surviving complaints. There is no
need in this context to strain the ordinary usage or understanding of the concept of
“appeal” to embrace judicial review. In parenthesis, it is unsurprising to find that,
where the Medical Act 1983 does allow an appeal, it does so expressly: section 40.
Finally, the history, which Lord Kerr recounts under the rubric “By virtue of an
enactment” in paras 31 to 35, points very strongly against judicial review having
become, suddenly but silently in 1981, a relevant “appeal” for the purposes of the
similarly worded predecessor provisions to section 120(7) of the Equality Act 2010.
