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THE EQUALITY ACT AND REGULATORS - WHICH FORUM?


Carol Davis and Eleena Misra
Joint Heads of Professional Discipline & Regulation Group

The Essential Facts and Issues

Dr Michalak’s name may be familiar to you. She was the doctor who brought a claim against her NHS employer (‘the Trust’) for sex and race discrimination, amongst other matters. Not only did the litigation reveal eye-watering events, it resulted in an eye-watering award of compensation (close to £4.5m) from the Leeds Employment Tribunal (‘ET’). The ET found that there had been a sustained campaign of unlawful conduct by various individuals against Dr Michalak culminating in a sham dismissal and causing post-traumatic stress disorder in Dr Michalak (Michalak v Mid Yorkshire Hospitals NHS Trust and Others [2011] ET 1810815/2008).

The Trust had referred Dr Michalak to her professional regulator, the General Medical Council (‘GMC’) over concerns about her fitness to practise, which proved to be entirely unwarranted. In the ET proceedings the Trust conceded that it should never have made the referral and issued a public apology to Dr Michalak.

However, Dr Michalak was aggrieved by the treatment she had received at the hands of the GMC itself and brought a claim in the ET directly against the GMC, its Chief Executive (and Registrar) and another employee of the GMC. The claim was brought under the Equality Act 2010 (‘EqA’) and, insofar as was necessary given the history of events, the Race Relations Act 1976 (‘RRA’) which contains the predecessor statutory race discrimination framework.

At a preliminary hearing, the Leeds ET found that it did have jurisdiction to hear the claims against the GMC under both the RRA and EqA.

The GMC (and other respondents to the claim) appealed to the Employment Appeal Tribunal (‘EAT’) arguing that the ET had erred in light of the decision in Jooste v GMC [2012] EQLR 1048 (the late HHJ McMullen QC). In Jooste it was held that an application to the ET under section 120(1) EqA was precluded by section 120(7) EqA because of the availability of judicial review.

Section 120 EqA states:

(1) An employment tribunal has, subject to section 121, jurisdiction to determine a complaint relating to—?

(a) a contravention of Part 5 (work);??

(b) a contravention of section 108, 111 or 112 that relates to Part 5.?

However, section 120(7) provides:

(7) 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.

This mirrors the now repealed RRA (in section 54(2) of that Act) and, accordingly, the ET, EAT and Court of Appeal was concerned with precisely the same issues.

The essence of HHJ McMullen QC’s decision was that:

(a) An appeal was simply "the opportunity to have a decision considered again by a different body of people with power to overturn it" and judicial review amounted to proceedings in the nature of an appeal in the sense intended in EqA; and

(b) Judicial review, in its modern guise, arises under the Senior Court Act 1981 (‘SCA’) and the need for the appeal route to be available under an "enactment” was therefore met as well.

The President of the EAT, Mr Justice Langstaff, agreed that the decision in Jooste was binding on the ET and should have been followed and the result of doing so was that the ET had no jurisdiction to hear the complaints (UKEAT/0213/14/RN). However, he granted permission to appeal on the basis that there was sufficient uncertainty as to whether Jooste was in fact correct.

The Court of Appeal’s Judgment

23 March 2016

The Court of Appeal examined the statutory framework with care noting at the outset that it was agreed that the GMC was a qualifications body and that:

"[Section 53 EqA] makes it unlawful for a qualifications body to discriminate against, harass or victimise a person upon whom it confers or has conferred a relevant qualification by, inter alia, withdrawing or varying the terms on which that qualification is held, or subjecting that person to any detriment.”

In stark opposition to one and other, through Counsel:

(a) The GMC submitted that there was a long line of authority supporting the proposition that the availability of judicial review precluded a claimant from bringing a claim of the kind here in the ET and that ought not to be disturbed incircumstances in which it was clear that judicial review amounted to proceedings in the nature of an appeal by virtue of the SCA whereas

(b) Dr Michalak submitted that Parliament had never intended for judicial review to be caught by sub-section 120(7) EqA and had it been its intention then it would have legislated for this in terms.

Delivering the leading judgment, Lord Justice Ryder accepted that where there was a defined statutory route of appeal, as in sections 38 and 40 Medical Act 1983 concerning a doctor’s registration, Khan v General Medical Council [1986] ICR 1032 (CA) remained good authority for the proposition that the ET would be precluded from exercising jurisdiction.

However, where no statutory appeal to the High Court or internal review or appeal is provided for, can judicial review operate so as to oust the jurisdiction of the ET pursuant to section 120(7) EqA? No, says the Court of Appeal.

As to the whether a judicial review is akin to an appeal, whilst accepting that ‘appeal’ had a broad meaning, the Court of Appeal concluded that the reviewing function of the Administrative Court is quite distinct when looking at the statutory scheme in question, that is to say EqA. The Court’s reviewing function is not the same as a decision on the merits of a discrimination complaint, and while a decision can be quashed, a substituted decision cannot be made nor can damages be awarded absent other relief or a recommendation be made. This is far removed from the task of the ET hearing and determining a claim of race discrimination. The specialist ET is able to make appropriate findings and grant appropriate relief in a claim of that nature; neither the GMC nor the Administrative Court is empowered to do that.

Lord Justice Ryder further concluded that

"The modern form of judicial review may well be enacted but is not related to the statutory scheme within which the unlawful treatment complained of occurred nor is any remedy that is available in judicial review a remedy on the merits of discrimination, harassment, victimisation or other unlawful treatment, let alone from a specialist forum equivalent to the ET. Just as the ET does not provide an equivalent forum to that of a specialist body apt to determine matters among others of medical education, practice or standards so the judicial review court should ordinarily yield to a specialist tribunal unless that tribunal's jurisdiction is expressly excluded. Furthermore, as a matter of general principle, judicial review should not be used where an alternative remedy is available.”

Noting that section 113 EqA expressly refers to judicial review, which supported Dr Michalak’s submission that judicial review was not within the ambit of section 120(7), the Court of Appeal allowed the appeal and upheld the ET’s original decision that it did have jurisdiction.

Perhaps of comfort to an increasingly beleaguered ET system, the Court of Appeal, acknowledging its specialist function and expertise, noted that

"The ET is better equipped to deal with disputed decisions of fact and to examine courses of conduct. It is able to call on witnesses to provide evidence. These matters are important in discrimination claims which turn, in general, on the question of why a claimant was treated in a particular way and whether that treatment points to discrimination in respect of a protected characteristic. Judicial review, on the other hand, is set up to consider procedural unfairness and the lawfulness of a decision. It naturally goes more to the question of how a decision was made rather than why it was made.”

Of course, employment practitioners will be familiar with the centrality of the "why” question in discrimination claims.

Lord Justice Moore-Bick added:

"Section 120(7) contains a provision of general application designed to regulate competing jurisdictions. One would therefore expect that it was intended to exclude from the jurisdiction of the Employment Tribunal only those cases in which some alternative provision has been made for obtaining a remedy for unlawful acts of the kind in question. Such a remedy is likely to be found, if anywhere, in legislation, which deals with the procedures governing the way in which a particular qualifications body reaches its decisions and provides an appeal process, which extends to decisions infected by unlawful acts of the kind under consideration.”

It is understood that the GMC intends to appeal. Clearly, if permission is granted, the argument is likely to be that the Court of Appeal has been over-purposive in its interpretation of section 120(7).

Comment

Regulators have historically been slow to grapple with the implications of the EqA.

A review carried out by researchers from the University of Plymouth and published at the end of March 2015 concluded that although there was no evidence to suggest that the GMC’s Fitness to Practice procedures discriminate against ethnic minority and non-UK doctors, there was a need for greater clarity and transparency in the procedures.

Further, an independent review commissioned by the GMC itself in 2014 reviewed those cases where doctors had committed suicide while under the Fitness to Practice procedures between 2005 and 2013 and found that many of the number of doctors in those reported cases suffered from a recognized mental disorder. The report also referred to a wealth of research suggesting that doctors appear to have higher rates of mental health problems compared to other professions and between 10% and 20% of doctors become depressed at some point in their career.

Until and unless Michalak is overturned, regulators like the GMC should prepare for a wealth of claims to the ET given that, in the same vein as employers, they can play such a major part in the lives of those whose professions they regulate.

Now may well be a jolly good time for all regulators to review their practices, procedures and training.

The Court of Appeal’s judgment can be found HERE:

John Bowers QC of Littleton Chambers appeared for the GMC and other Respondents.

Eleena Misra and Carol Davis, both ranked in Legal 500 as leaders in the field of Professional Discipline, head up Littleton’s Professional Discipline & Regulatory team, which has in depth expertise in crossover regulatory and employment / equalities / public law advice and litigation.

Littleton is noted in particular for its excellence in healthcare and education cases in this field.

Please contact Penny Rutterford or Hope Revell for details of our next healthcare seminar.

24.3.2016

Posted: 24.03.2016 at 15:20
Tags:  Comments  Employment Law  Professional Discipline  Public Law & Human Rights  Equality & Discrimination
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