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Michalak v General Medical Council and others
Factual and Procedural Background
The Respondent was employed as a doctor by The Hospital from April 2002 until her dismissal in July 2008. An Employment Tribunal later held that the dismissal was unfair and tainted by sex and race discrimination, awarding compensation and prompting a public apology from The Hospital.
Before that tribunal ruling, The Hospital referred the Respondent to Company A, the professional regulator for doctors, which commenced fitness-to-practise proceedings. Company A later conceded that the referral lacked proper grounds, and the Respondent’s registration was never revoked. She alleges that Company A discriminated against her in the conduct of those proceedings and in its failure to investigate her complaints against other doctors.
In August 2013 the Respondent filed a claim in the Employment Tribunal against Company A and two of its employees (collectively, the Appellants). The Appellants sought to strike out the claim, contending that the tribunal lacked jurisdiction. The tribunal accepted jurisdiction for post-1 October 2010 discrimination claims but struck out earlier matters and a breach-of-contract claim. On appeal, the Employment Appeal Tribunal held that section 120(7) of the Equality Act 2010 removed tribunal jurisdiction because judicial review was available. The Court of Appeal reversed that decision, reinstating tribunal jurisdiction. The Appellants then appealed to the Supreme Court.
Legal Issues Presented
- Whether the mere availability of judicial review of Company A’s decisions constitutes “proceedings in the nature of an appeal … by virtue of an enactment” under section 120(7) of the Equality Act 2010, thereby ousting the Employment Tribunal’s jurisdiction over the Respondent’s discrimination claims.
Arguments of the Parties
Appellants’ Arguments
- Section 120(7) removes tribunal jurisdiction if an alternative remedy amounting to an appeal exists.
- Judicial review proceedings are “in the nature of an appeal” because the High Court can quash or declare unlawful Company A’s decisions.
- Judicial review is available “by virtue of an enactment” following section 31 of the Senior Courts Act 1981, which provides the procedural framework for such applications.
Respondent’s Arguments
- Judicial review is not an appeal on the merits but a limited legality review; it therefore cannot satisfy section 120(7).
- Judicial review derives from the common law, not from any “enactment,” so the statutory wording is not met.
- Denying tribunal jurisdiction would deprive her of an effective remedy with the specialist forum, procedural accessibility and compensatory powers Parliament intended.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Tariquez-Zaman v Company A (EAT) | Obiter view that judicial review is “in the nature of an appeal.” | Supreme Court disapproved that reasoning. |
| Khan v Company A [1996] ICR 1032 | Statutory review mechanism can qualify as an appeal under earlier discrimination legislation. | Distinguished; the statutory review there allowed full merits reconsideration, unlike judicial review. |
| Wootton v Central Land Board [1957] 1 WLR 424 | Description of appeal as decision that can be reversed by a differently constituted body. | Cited to show the contrast between true appeals and judicial review. |
| R v Department of Health, ex p Gandhi [1991] ICR 805 | Duties of specialist tribunals to apply discrimination law. | Referenced in discussing adequacy of statutory review procedures. |
| R (Beeson) v Dorset CC [2002] EWCA Civ 1812 | Judicial review is rooted in common law. | Supported conclusion that judicial review is not “by virtue of an enactment.” |
| R (Cart) v The Upper Tribunal [2011] UKSC 28 | Nature and purpose of judicial review. | Cited to emphasise common-law foundation. |
| Kennedy v Charity Commission [2014] UKSC 20 | Possibility of proportionality review in judicial review. | Illustrative; did not alter the ultimate distinction between review and appeal. |
| Pham v Secretary of State for the Home Dept [2015] UKSC 19 | Scope of proportionality review. | As above. |
| Keyu v Secretary of State for Foreign & Commonwealth Affairs [2015] UKSC 69 | Limits of proportionality review. | Used to show judicial review does not equate to a merits appeal. |
| In re G (Adoption: Unmarried Couple) [2008] UKHL 38 | Judicial review may sometimes lead to only one lawful outcome. | Cited in separate concurring opinion; did not affect main ratio. |
| Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 | Limits on appellate intervention respecting first-instance decisions. | Contrasted with judicial review’s limits. |
| Datec Electronic Holdings Ltd v United Parcels Services Ltd [2007] UKHL 23 | Similar principle on appellate restraint. | Same contrast. |
Court's Reasoning and Analysis
Judge Kerr, delivering the unanimous judgment, interpreted section 120(7) of the Equality Act 2010 as containing two cumulative conditions: (1) the alternative process must be “in the nature of an appeal,” and (2) it must be available “by virtue of an enactment.” The Court analysed each limb:
- Nature of an appeal: A true appeal body re-determines the dispute on its merits and may substitute its own decision. Judicial review, even when involving proportionality, only assesses legality and procedural fairness; it cannot substitute the decision of Company A on discrimination issues. Therefore it is not “in the nature of an appeal.”
- By virtue of an enactment: Judicial review originates in common law. Section 31 of the Senior Courts Act 1981 merely regulates procedure; it does not create the substantive right. Accordingly, judicial review is not conferred “by virtue of an enactment.”
The Court rejected contrary obiter dicta in earlier Employment Appeal Tribunal decisions and distinguished authority where a specific statutory review body existed. It emphasised Parliament’s intention that specialist Employment Tribunals provide effective remedies—including compensation and recommendations—for workplace discrimination unless a genuinely equivalent statutory appeal route exists. Because judicial review lacks those features, section 120(7) did not oust tribunal jurisdiction.
Holding and Implications
APPEAL DISMISSED.
The Employment Tribunal retains jurisdiction over the Respondent’s post-2010 discrimination claims against Company A. The decision clarifies that judicial review, standing alone, is insufficient to exclude tribunal jurisdiction under section 120(7) of the Equality Act 2010. The ruling preserves access to specialist tribunals for discrimination complaints and does not establish new substantive discrimination law, but it provides authoritative guidance on the boundary between tribunal and judicial-review remedies.
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