When can a dentist sue the GDC?
DENTAL BULLETIN, ISSUE 19
This question sounds like the start of an awful joke with no punchline.
Under the present regime of regulation it feels like the GDC are a law unto themselves. Dentists live in fear that any minor indiscretion may result in an investigation by their regulator and, ultimately, lead to their erasure from the register. Many have questioned the GDC’s handling of nhs dental complaints; look no further than the case of Dr Singh in which the Professional Conduct Committee heavily criticised the GDC’s conduct leading up to the hearing. In 2015 the GDC were also ranked the worst regulator by the Professional Standards Authority.
However, what if this isn’t a joke? What if a dentist may finally have some recourse against the GDC?
This may be possible in the light of a recent decision against the General Medical Counsel (GMC). In the case of Dr Michalak v the GMC & others the Court of Appeal has decided that Dr Michalak can pursue an employment tribunal claim for race and sex discrimination against the GMC and two others, in connection with the GMC’s handling of its fitness to practice investigation and hearing.
Dr Michalak worked for an NHS Trust. She was suspended from work on 16th January 2006 due to various nhs dental complaints raised about her attitude and performance, which were not substantiated. Following an investigation into those allegations, she was finally dismissed from her role on 14th July 2008. Dr Michalak claimed that the campaign to remove her from her job had begun as early as March 2003 during her maternity leave. She issued an employment tribunal claim for unfair dismissal, discrimination, harassment and victimisation.
The employment tribunal found in Dr Michalak’s favour and awarded her £4.5million in damages on the basis that the harassment and discrimination she had suffered had made her so ill she would never work as a doctor again.
Before dismissing her, the Trust had referred Dr Michalak’s case to the GMC. The Trust later accepted that there were never any proper grounds to refer the matter. Accordingly, Dr Michalak’s registration remained intact. However, not before she was subject to an investigation and hearing by the GMC. It is not clear when the Trust accepted the referral was improper and whether the GMC decided to continue with the investigation in any event.
Dr Michalak felt the GMC’s handling of the case was discriminatory on the grounds of her sex and race. She therefore issued a claim in the employment tribunal. At present, no details are given in relation to the actual allegations Dr Michalak has made. The claim was issued against the GMC, the Chief Executive and Registrar of the GMC and an employee of the GMC. We suspect that the GMC employee in question is the person who carried out the investigation into the Trust’s referral.
The GMC asked the employment tribunal to strike out the claim at an early stage on the basis that it had no jurisdiction to hear the case. The employment tribunal disagreed and allowed the claim to proceed. The GMC appealed this decision and the employment appeal tribunal, as a result of previous case law, allowed the appeal. However, the appeal tribunal gave Dr Michalak permission to appeal to the Court of Appeal, as it was doubtful about the legal basis for the previous decisions.
The Equality Act states that if a decision of a public body can be the subject of ‘an appeal, or proceedings in the nature of an appeal’, then a person cannot pursue a discrimination claim in the employment tribunal.
If a dentist or doctor is subjected to a fitness to practice hearing and the judgment is not in their favour, they have the right of appeal to the High Court, the grounds of which can include discrimination. Alternatively, a decision of a public body may be judicially reviewed, again the basis of which may include allegations of discrimination.
However, what recourse do you have if you successfully defend allegations about your fitness to practice, but still feel you have suffered wrong doing by the GDC during the process?
We won’t bore you with the various statutes and legal arguments; essentially the case centred on whether the availability of judicial review proceedings to dentists and doctors in fitness to practice hearings amounted to ‘an appeal, or proceedings in the nature of an appeal’ so as to prevent Dr Michalak from continuing with her employment tribunal claim.
The Court of Appeal found that acts of discrimination in respect of a qualification body’s actions in the course of carrying out their functions should be heard by the employment tribunal, as that body is a specialist tribunal set up to deal with such claims. The court concluded that Parliament had not intended for judicial review to be used in such cases.
The matter will now be remitted back to the employment tribunal to determine whether or not the alleged discrimination has occurred.
This case gives at least some hope to dentists. It means that if in the course of your investigation you have been subjected to discrimination, harassment or victimisation by the GDC you may be able to pursue a claim for compensation in the employment tribunal.
We completely agree with the decision. A judicial review case is intended to review a decision of a public body and where no decision has been given, what is there to review?
This decision does not mean every alleged wrong doing will give rise to a claim in the employment tribunal. If there is an internal appeals procedure or a formal appeals process then any allegations will need to be raised as part of that appeal procedure.
In order to claim discrimination or harassment you must show that the acts complained of were due to a protected characteristic; these include race, sex, disability, religion or belief, age, sexual orientation, marriage and civil partnership, pregnancy and maternity, and gender reassignment. For a victimisation claim, you will need to show that you made an nhs dental complaint about discrimination or harassment and that as a result of that complaint you suffered a detriment.
Discrimination is an area of law that is considerably complex; therefore if you feel that you have suffered at the hands of the GDC, you will need specialist advice before incurring the legal costs of an employment tribunal claim. Here at JFH Law we have such specialists, who have been handling discrimination claims for over 10 years. It is a relatively simply process to review documents and provide advice, so you can understand the potential claims that you have.
Laura Pearce, Senior Solicitor