Employment Cases Update

Michalak v General Medical Council and others [2017] UKSC 71

Date published: 02/11/2017

The GMC was appealing against a decision of the ET that it had jurisdiction to hear the Claimant's complaint of discrimination - the GMC argued that section 120(7) of the Equality Act 2010 meant that the ET did not have jurisdiction to hear the claim, as judicial review already provides for an appeal in these matters. The appeal was dismissed.

The Claimant brought a claim in the ET against the GMC, its chief executive and one of its investigation officers in relation to her complaints of discrimination. The GMC argued that section 120(7) of the Equality Act 2010 meant that the Employment Tribunal did not have jurisdiction to hear the claim, as judicial review already provides for an appeal in these matters. The issue in this appeal was whether the availability of judicial review proceedings in respect of decisions or actions of the GMC can properly be described as proceedings "in the nature of an appeal" and, on that account, the jurisdiction of the Employment Tribunal is excluded by section 120(7) of the 2010 Act.

The Supreme Court dismissed the appeal. An appeal is a procedure which entails a review of an original decision in all its aspects – an appeal body may thus examine the basis on which the original decision was made, assess the merits of the conclusions reached and, if it disagrees, substitute its own view. Judicial review, by contrast, is a proceeding in which the legality of or procedure by which a decision is reached is challenged. It cannot partake of the nature of an appeal – the remedy available on a judicial review application in circumstances such as the present is a declaration that the decision is unlawful or that the decision be quashed. The court cannot substitute its own decision for that of the decision-maker and, in that sense, the decision of the GMC could not be reversed. 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.