Michalak v General Medical Council and others - (01 Nov 2017)

Judicial review, even on basis of proportionality, cannot partake of nature of an appeal

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Ewa Michalak began employment as a doctor with the Mid-Yorkshire Hospitals NHS Trust in April 2002. She remained in that employment until she was dismissed in July 2008. Following her dismissal, Dr Michalak brought an unfair dismissal claim against the Trust in the Employment Tribunal. The tribunal found that her dismissal had been unfair and contaminated by sex and race discrimination and victimisation. Dr Michalak received a compensation award and a public apology from the Trust.

The Appellants appealed, arguing that, Section 120(7) of the Equality Act 2010 precluded jurisdiction, since judicial review afforded an appeal for the acts complained of. The Employment Appeal Tribunal agreed and allowed the appeal. An appeal against that decision was successful before the Court of Appeal. It held that, the Employment Tribunal had jurisdiction to deal with Dr Michalak’s complaints and remitted the case to the Tribunal for further case management. Issue is whether the availability of judicial review proceedings in respect of decisions or actions of the first appellant excludes the jurisdiction of the Employment Tribunal by virtue of Section 120(7) of the Equality Act.

Under Section 120(1)(a) of the Equality Act, an employment tribunal has jurisdiction to determine a complaint relating to a person’s work. But Section 120(7) provides that “subsection (1)(a) does not apply to a contravention of section 53 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”. Not only was the Employment Tribunal designed to be a specialised forum for the resolution of disputes between employee and employer, it was given a comprehensive range of remedies which could be deployed to meet the variety of difficulties that might be encountered in the employment setting.

Where a statutory appeal is available, employment tribunals should be robust in striking out proceedings before them which are launched instead of those for which specific provision has been made. Employment tribunals should also be prepared to examine critically, at an early stage, whether statutory appeals are available.

Parliament plainly intended that, Section 120(7) would exclude jurisdiction for certain challenges against decisions of qualification bodies. The rationale for doing so is plain. Where Parliament has provided for an alternative route of challenge to a decision, either by appeal or through an appeal-like procedure, it makes sense for the appeal procedure to be confined to that statutory route. This avoids the risk of expensive and time-consuming satellite proceedings and provides convenience for appellant and respondent alike. That rationale can only hold, however, where the alternative route of appeal or review is capable of providing an equivalent means of redress.

The Employment Tribunal, as a forum for dealing with complaints by employees concerning their employment, has distinct advantages for complainants. It is a specialist tribunal with expertise in hearing discrimination claims across a range of sectors; it is designed to be accessible to litigants in person; and it is generally a cost-free jurisdiction (Rule 74 of the Employment Tribunal Rules of Procedure).

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, true that in the human rights field, the proportionality of a decision may call for examination in a judicial review proceeding. And there have been suggestions that proportionality should join the pantheon of grounds for challenge in the domestic, non-human rights field.

Judicial review, even on the basis of proportionality, cannot partake of the nature of an appeal. 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. Whether discrimination is in fact found to have occurred must depend on the judgment of the body conducting that inquiry. It cannot be answered by studying the reasons the alleged discriminator acted in the way that she or he did and deciding whether that lay within the range of reasonable responses which a person or body in the position of the alleged discriminator might have had. The latter approach is the classic judicial review investigation.

On a successful judicial review, the High Court merely either declares the decision to be unlawful or quashes it. It does not substitute its own decision for that of the decision-maker. In that sense, a claim for judicial review does not allow the decision of the GMC to be reversed. It would be anomalous for an appeal or proceedings in the nature of an appeal to operate under those constraints. 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.

The High Court’s jurisdiction would remain, even if the procedure by which it would have to be brought might require to be provided for in any amending legislation. Section 120(7) is part of a carefully constructed statutory scheme. It is the most recent incarnation of similarly worded provisions in legislation. Before 1981, there could have been no question of judicial review coming within any of the predecessor provisions. Given the importance of judicial review, it is to be assumed that Parliament would have had the procedure in mind when it formulated the phrase now contained in Section 120(7). Had it, in 1981 or in 2010, intended to remove all decisions by qualification bodies whose decisions were susceptible to judicial review from the jurisdiction of the Employment Tribunal, one would surely expect that to be provided for expressly. Judicial review in the context of the present case is not in the nature of an appeal. Nor is it a remedy provided by reason of an enactment. The appeal is dismissed.

Tags : DISCRIMINATION JUDICIAL REVIEW REMEDY