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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

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