• 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.

Facts of the Case

  • 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

Issues

  • Was the Employment Tribunal’s jurisdiction excluded due to the existence of section 120(7) of the Equality Act 2010?

Held by the Supreme Court

  • The Supreme Court dismissed the appeal and held that the Employment Tribunal did have the jurisdiction under section 120(7) of the Equality Act 2010.

Lord Kerr JSC

  • His Lordship emphasised the differences between an appeal and judicial review:
  • “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.” [20]
  • 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. [21]

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