No one is above the Law; who can sue the GDC?
DENTAL BULLETIN, ISSUE 59
Dr Michalak was employed by the Mid-Yorkshire Hospitals until she was dismissed in July 2008. She complained that she had been discriminated against in the course of her employment. Pending the result of the action she brought against her employer, disciplinary proceedings were brought against Dr Michalak in relation to the care of patients and her behaviour towards them. The matters were referred by her employer to the General Medical Council (GMC) and the allegations were heard before the Fitness to Practice Panel.
The GMC and the Equality Act 2010
Under s.120(1)(a) of the Equality Act 2010, a claim for discrimination against a ‘qualification body’ can be brought in the Employment Tribunal. The GMC has, under the Medical Act 1983, the duty to confer registration on or in appropriate cases to remove or suspend the effect of registration from medical practitioners. The GMC is, therefore, a ‘qualification body’ within the meaning of s.53 of the Equality Act 2010. This would also apply to the GDC as per the Dentist Act 1984.
However subsection (1)(a) goes on to state that the section does not apply ‘in so far as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal ‘(s.120(7)). In other words, under the Equality Act, the Employment Tribunal can hear claims of discrimination against the GMC and GDC, except where there is a right of appeal against the regulator’s decision. For instance, a sanction applied to a doctor by the GDC under its ‘fitness to practice’ procedure can be appealed to the High Court under s.38 and s.40 of the Medical Act 1983.
There are some steps you can take if you disagree with the decision of the Fitness to Practice committee. But what if there is no specific right of appeal available against the decision? It can be the case that a decision is made to investigate a complaint, but that due to insufficient evidence it is not progressed to a fitness to practice panel.
Dr Michalak’s complaint referred to the fact that the GMC had discriminated against her in the way in which it pursued the proceedings on the grounds of her race and sex. She said that the discrimination extended to the GMC’s failure to investigate complaints that she had made against other doctors employed by the same company.
The GMC argued that she was not entitled to take the case to the Employment Tribunal and that she would have to seek judicial review in the High Court instead. This was accepted by the Employment Appeal Tribunal in the case of Jooste v GMC  EQLR 1048, which held that an application to the Employment Tribunal under s.120(1), was precluded by s.120(7) of the Equality Act because of the availability of the judicial review under section 31 of the Senior Courts Act 1981. Thus, the aggrieved claimants had to tackle the procedure in the Administrative Division of the High Court instead.
The Tribunal allowed Dr Michalak’s claim but this was soon overturned by the Employment Appeals Tribunal, which held that she could appeal the acts of the GMC through the judicial review process. It was held that the Employment Judge permitted proceedings to continue, when on the principles as accepted in Jooste he should not have done so. Consequently, the Employment Tribunal did not have jurisdictions to hear the claim.
The Employment Appeal Tribunal held that the Employment Tribunal was in law bound to follow the decision in Jooste. However, in the case of Dr Michalak, there was sufficient reason to doubt whether the decision in Jooste was correct.
Dr Michalak therefore appealed the decision in the Court of Appeal, which held that the Tribunal did have jurisdiction to deal with Dr Michalak’s complaints. The GMC then appealed to the Supreme Court.
Supreme Court’s judgment
The question for the Supreme Court was whether the availability of judicial review in respect of the actions of the GMC excludes the jurisdiction of the Employment Tribunal. In order to answer this question, the Court had to consider two issues. First of all, whether judicial review can be described as a “proceeding in the nature of an appeal” and second of all, whether it is available “by virtue of an enactment” (para 13 of the judgment).
“Proceeding in the nature of an appeal”
In relation to this issue, the Court explained that judicial review is not an appeal for these purposes. 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.” The remedy available on a judicial review is a declaration that the decision is unlawful or that the decision be quashed, whereas “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.” (paras 20-22).
“By virtue of an enactment”
Overruling Jooste, the Supreme Court also rejected the GMC’s argument that judicial review proceedings became proceedings “by virtue of” any statutory source. Its origins lie in the common law and “the GMC’s case rested on a misunderstanding of the nature of judicial review”. (paras 31-32).
The Court concluded that Dr Michalak could seek judicial review of the decisions that are alleged to constitute discrimination. However, the Employment Tribunal offers the natural and obvious means of recourse in respect of Dr Michalak’s complaints: “There is no need in this context to strain the ordinary usage or understanding of the concept of appeal to embrace judicial review. Where the Medical Act does allow an appeal, it does so expressly (section 40).” (para 38). A copy of the judgment is available for further information.
Consequences for the GMC and all professional regulators
As a result, under section 120(1)(a) of the Equality Act 2010, all future discrimination claims brought by individuals against their regulators can be brought in the Employment Tribunal.
The case of Dr Michalak is highly significant not only for GMC but for all professional regulators. The Court has now potentially opened the floodgates for discrimination claims against other ‘qualification bodies’, such as the GDC, the Solicitors Regulation Authority, or the General Pharmaceutical Council. Individuals can now pursue their regulator in the Employment Tribunal on the basis of discrimination without a fitness to practice decision in place.
There are limits to this decision. In order to be afforded protection under the Equality Act, the alleged discrimination must be as a result of a protected characteristic, namely race, religion or belief, sex, disability, sexual orientation, gender reassignment, pregnancy/maternity, marriage/civil partnership, and age. Unfortunately, you therefore cannot pursue a claim simply because the GDC have handled your case poorly.
But beware; in order to pursue a claim in the Employment Tribunal you must issue if within three months less one day of the act complained of. If you have any concerns you therefore need to act quickly.
Discrimination is an area of law that is considerably complex; therefore if you feel that you have suffered at the hands of the qualification body, you will need specialist advice on your options. 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. If you have faced discrimination in the workplace, please us on 0207 388 1658 or at firstname.lastname@example.org to discuss your options.
Agnes Biel, Paralegal