Michalak v General Medical Council [2017] UKSC 71
Facts
An NHS Trust employer referred a doctor to the General Medical Council to assess whether she was fit to practice medicine. The doctor brought a claim against the General Medical Council to the Employment Tribunal, alleging that the Council acted in contravention to the Equality Act 2010 by discriminating against her. Section 120(7) of the Equality Act 2010 does not enable the Employment Tribunal to exercise jurisdiction where there is a decision which is ‘subject o an appeal or proceedings in the nature of an appeal.’ As such, the Council asserted that they were not under the Tribunal’s jurisdiction by the provision of the Equality Act. Both the Employment Tribunal and the Court of Appeal found that the Tribunal did in fact have the relevant jurisdiction for the discrimination claims. This decision was subsequently appealed by the Council to the Supreme Court
Legal Issue
Whether the availability of judicial review prevented the Employment Tribunal from hearing a discrimination claim against the General Medical Council under the statutory alternative-remedy exclusion.
Held
The Supreme Court dismissed the GMC’s appeal and held that judicial review did not exclude the employment tribunal’s jurisdiction under section 120(7) of the Equality Act 2010. Lord Kerr distinguished an appeal on the decision’s merits from proceedings challenging its legality or procedure. Even substantive review, including proportionality where relevant, did not give judicial review the open-ended character of the tribunal’s discrimination inquiry. The statutory exclusion was therefore not engaged merely because the doctor could seek judicial review of the GMC’s conduct. The judgment settled the jurisdictional issue; it did not determine whether the discrimination allegation was established or which substantive remedy should ultimately be awarded.
⭐ Legal Principle
In the case of Michalak v General Medical Council [2017] UKSC 71, if judicial review can be sought after, this does not necessarily prevent the Employment Tribunal’s jurisdiction to deal with a complaint regarding discrimination under section 120(7) of the Equality Act 2010.
Significance
Michalak clarifies why the availability of judicial review does not necessarily displace a specialist statutory claim. A legality challenge differs from an unrestricted inquiry into alleged discrimination with the remedies available under the Equality Act. The case is useful when analysing alternative remedies and jurisdictional exclusions, but its answer depends on the particular words Parliament used. It did not decide that the General Medical Council had discriminated against the doctor. It established the tribunal’s ability to hear that allegation.
Common exam questions about this case
Why did judicial review not trigger the exclusion?
Section 120(7) concerned an appeal or proceedings in the nature of an appeal. Ordinary judicial review challenges the legality or procedure of a decision rather than providing the same open-ended determination of discrimination. The Supreme Court therefore rejected the GMC’s attempt to treat availability of judicial review as enough to exclude the tribunal.
Did the doctor win the discrimination allegation itself?
No. The appeal concerned which forum had jurisdiction to determine it. The Supreme Court held that the employment tribunal could hear the complaint; it did not decide that the GMC had acted unlawfully on the merits. Jurisdiction and substantive liability must be analysed separately.
Does judicial review never examine substantive matters?
That would overstate the distinction. Judicial review can involve substantive scrutiny, including proportionality where applicable. Michalak nevertheless held that such scrutiny did not make it an appeal of the relevant statutory kind. The proper comparison is between the functions and remedies of the proceedings, not a claim that judicial review looks only at paperwork.