https://www.2harecourt.com/2017/11/06/discrimination-gmc-michalak-v-gmc-2017-uksc-71/
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Professional Discipline 6th Nov 2017

The Supreme Court has turned its mind to the question: can you bring a claim for discrimination against the GMC? Dr Michalak was dismissed from Mid-Yorkshire Hospitals NHS Trust. She successfully brought an employment claim against the Trust and received both compensation and a public apology. Beforehand, however, the Trust had referred her case to the GMC. This was eventually dropped. She has now brought a claim for discrimination against the GMC arising out of the it dealt with her – not least the failure of the GMC to investigate her complaints against other doctors employed at the Trust.

The GMC argued as a preliminary legal point that the Employment Tribunal had no jurisdiction to consider such an appeal – an issue which ultimately brought the case to the Supreme Court. The basis for the submission was s. 120(1)(a) Equality Act 2010: this precluded any claim for discrimination being heard by the Employment Tribunal if “the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal”. The GMC’s governing legislation did, of course, include various routes of appeal. None of these applied, however, to the alleged acts of discrimination in her case. However, it had been open to her to seek judicial review. The GMC argued that this right was “a proceeding in the nature of an appeal” and was available to her “by virtue of an enactment”.

The Supreme Court profoundly disagreed with this interpretation. An “appeal” conventionally meant “a procedure which entails a review of an original decision in all its aspects”. Judicial review, on the other hand, concerned the legality of the decision, or the procedure used. In the realm of Human Rights, it may also require an assessment of proportionality. Nonetheless, this cannot be equated with an appeal. The issue of discrimination requires an open-ended inquiry, not a judicial review assessment of whether the act of an individual fell within the range of reasonable responses.

The court also rejected the suggestion that judicial review was available “by virtue of an enactment”. The GMC had based its argument on s. 31(1) Senior Court Acts 1981, which states:

“An application to the High Court for one or more of the following forms of relief…
shall be made in accordance with rules of court by a procedure to be known as an application for judicial review”

It claimed this had enshrined judicial review in statute and brought it within s. 120(1)(a) Equality Act. Lord Kerr observed that this was based on a misinterpretation of the Act, which did not create judicial review, but rather regulated it. In drafting the Equality Act, had Parliament intended to place all decisions susceptible to judicial review outside the remit of the Act, it would have said so expressly. The GMC’s appeal was rejected and the way opened for Dr Michalak to pursue her claim.

https://www.bmj.com/content/353/bmj.i2138.full

BMJ 2016; 353 doi: https://doi.org/10.1136/bmj.i2138 (Published 13 April 2016) Cite this as: BMJ 2016;353:i2138

Clare Dyer

A doctor who won nearly £4.5m in compensation from an NHS trust for unfair dismissal, discrimination, and victimisation in 20111 has been given the go-ahead to take the General Medical Council (GMC) to an employment tribunal for the way it dealt with the trust’s complaints against her.

Ewa Michalak accused the GMC; its chief executive, Niall Dickson; and an investigation officer of harassment and sex, race, and disability discrimination after the trust referred her to the regulator.

The GMC argued that she was not entitled to take the case to the employment tribunal but would have to seek judicial review in the High Court instead. The employment appeal tribunal originally backed Michalak but the GMC appealed and the tribunal overturned the ruling.

The tribunal felt that it was bound by an earlier judgment, which held that a section in the Equality Act meant that the GMC’s actions could be challenged only by seeking a judicial review in the High Court.

But now three senior judges in the Court of Appeal have ruled that that case was wrongly decided and Michalak could bring her case in the employment tribunal.

“The ruling opens the way for doctors to claim not only damages—which are not often granted in judicial review cases—and a declaration that the GMC acted unlawfully, but also a recommendation for the future conduct of the GMC, a remedy which is not available in judicial review,” said Michalak’s solicitor Kate Williams, a partner in the law firm RadcliffesLeBrasseur. “This case paves the way for other doctors to seek remedies not previously available to them.”

The Appeal Court judges noted that judicial review, in which the court rarely hears witnesses, was not the best route for resolving discrimination claims. “The employment tribunal is better equipped to deal with disputed decisions of fact and to examine courses of conduct,” said Lord Justice Ryder, who delivered the leading judgment. “It is able to call on witnesses to provide evidence.”

Judicial review, he added, looked at how a decision was made and whether it was procedurally fair and lawful, rather than why it was made. Discrimination claims, on the other hand, examined the reasons a claimant was treated in a particular way.

The judgment opened the way for doctors and other professionals to bring discrimination claims against their regulators in the employment tribunal, without the risk of having to pay the regulator’s costs should they lose.

“Your career has to be in pretty dire straits for you to sue your regulatory body,” said Williams. “People have tried it and failed. But now they can try and at least have a crack at it.” She said that the case had “potentially wide ranging implications for all regulated professionals.”

Michalak, who qualified in Poland, was dismissed from her post as a consultant physician with Mid Yorkshire Hospitals NHS Trust after a concerted exercise by managers and senior clinicians to get rid of her, Leeds employment tribunal found. The trust and three named employees were found guilty of race and sex discrimination for their parts in her suspension and dismissal on the basis of complaints that were later found to be without foundation.

The tribunal accepted that her treatment had left her with enduring psychiatric injuries and that she was unable to work again as a consultant physician.

Pending the outcome of her case against it, the trust referred her to the GMC. A lengthy investigation and hearing followed, which was eventually stayed with no findings against her. The trust accepted that there had never been proper grounds for referring Michalak to the regulator.

1. ↵Dyer C. Consultant is awarded £4.5m for race and sex discrimination. BMJ2011;343:d8265.FREE Full TextGoogle Scholar