Michaelmas
Term
[2017] UKSC 71
On appeal from: [2016] EWCA Civ 172
JUDGMENT
Michalak (Respondent) v General Medical Council
and others (Appellants)
before
Lady Hale
Lord Mance
Lord Kerr
Lord Wilson
Lord Hughes
JUDGMENT GIVEN ON
1 November 2017
Heard on 4 July 2017
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Appellants
John Bowers QC
Ivan Hare QC
(Instructed by GMC
Legal)
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Respondent
William Edis QC
Adam Ohringer
(Instructed by
RadcliffesLeBrasseur (Leeds))
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Intervener
(Solicitors Regulation Authority)
Catherine Callaghan
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Intervener
(General Pharmaceutical Council)
Adam Solomon
(Instructed by
Fieldfisher)
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Intervener
(Equality and Human Rights Commission)
Robin Allen QC
(Instructed by
Equality & Human Rights Commission)
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LORD KERR: (with whom Lady
Hale, Lord Mance, Lord Wilson and Lord Hughes agree)
Introduction
1.
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.
2.
Before the tribunal had issued its determination, and, on foot of Dr
Michalak’s dismissal, the Trust had reported her to the General Medical Council
(the GMC) in relation to her conduct, so that the question of whether she
should continue to be registered as a medical practitioner could be considered.
The Trust later accepted that there had not been proper grounds on which to
refer her to the GMC. She remains registered as a medical practitioner,
therefore.
3.
In the meantime, however, the GMC had begun fitness to practise
proceedings against Dr Michalak under Part V of the Medical Act 1983. She
claims that the GMC discriminated against her in the way in which it pursued
those proceedings. She also alleges that the discrimination extended to the
GMC’s failure to investigate complaints that she had made against other doctors
employed by the Trust.
4.
Dr Michalak presented a claim to the Employment Tribunal in relation to
these complaints in August 2013. The respondents named on the application form
were the GMC, Niall Dickson, its chief executive, and Simon Haywood, an
investigation officer of the GMC. They are the current appellants, although for
all intents and purposes, the effective appellant is the GMC. It is agreed that
the second and third appellants’ cases do not require separate consideration.
5.
The appellants applied to have Dr Michalak’s complaint to the tribunal
struck out on the basis that the tribunal did not have jurisdiction to hear the
claims. The complaints of discrimination and breach of contract against the GMC
relating to the period before 1 October 2010 were struck out. The tribunal
decided that it did have jurisdiction in relation to complaints regarding unlawful
sex, race and disability discrimination after that date but not in relation to
breach of contract. So far as the complaints against the second and third
appellants were concerned, the complaint was confined to one of unlawful
discrimination and the tribunal considered that it had jurisdiction to
entertain this complaint.
6.
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 (Langstaff P) agreed and
allowed the appeal. An appeal against that decision was successful before the
Court of Appeal (Moore-Bick, Kitchin and Ryder LLJ) [2016] ICR 628. 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.
7.
The appeal to this court raises a single issue. It 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.
Section 120(7)
8.
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”. Section 53
deals with discrimination by qualifications bodies. Section 54 defines
qualifications bodies. In its material parts, it provides:
“(2) A qualifications body is
an authority or body which can confer a relevant qualification.
(3) A relevant qualification
is an authorisation, qualification, recognition, registration, enrolment,
approval or certification which is needed for, or facilitates engagement in, a
particular trade or profession.
…
(5) A reference to
conferring a relevant qualification includes a reference to renewing or
extending the conferment of a relevant qualification.”
9.
All parties accept, therefore, that the GMC is plainly a qualifications
body. It is an independent organisation which regulates the profession of
doctors within the United Kingdom under the Medical Act 1983. Its main objective,
under section 1(1A) of that Act, is “to protect, promote and maintain the
health and safety of the public”. The GMC maintains the register of doctors and
is responsible for certain undergraduate and postgraduate medical education,
and for the training and revalidation of doctors. Under Part V of the Medical
Act and the General Medical Council (Fitness to Practise) Rules 2004, the GMC
has power to investigate complaints against doctors.
10.
Under the “fitness to practise” jurisdiction, the GMC receives and
considers complaints about medical practitioners. Where it is decided that the
complaints warrant an inquiry, the GMC prepares the evidence and the drafting
of allegations. Any hearing that follows is conducted by the Medical
Practitioners’ Tribunal Service. It is described as a part of the GMC but is
independent of it.
11.
A decision to erase a medical practitioner’s name from the register or
to suspend, or to impose conditions on his or her registration may be appealed
to the High Court under sections 38 and 40 of the Medical Act. The High Court
may allow the appeal and quash the original decision; it may also substitute a
new decision for the original decision; or remit the matter for re-hearing.
12.
The Medical Act also provides for various other types of appeal against
fitness to practise decisions. To take an example, section 41A(10) states that
the “relevant court” has the power to terminate an interim order of suspension,
and section 41A(14) states that “relevant court” has the same meaning as in section
40(5). Section 40(5) contains the definition of the “relevant court” as the
High Court. In effect, therefore, an appeal against the making of an interim
order of suspension lies to the High Court. But neither this nor any of the
other possible statutory avenues of appeal is relevant to the respondent’s
position. Her complaints do not relate to any action by the GMC as to her
registration. Her series of claims of discrimination on the part of the GMC
relate to the manner in which it pursued its fitness to practise application
and its failure to investigate her complaints against other doctors in the
trust where she had been employed. No statutory appeal is available to her to
pursue those complaints.
13.
It is accepted, however, that she could seek judicial review of the
decisions that are said to constitute the various acts of discrimination. The
essential issue in the case, therefore, is whether the availability of judicial
review animates the exemption contained in section 120(7). This in turn depends
on whether that remedy can properly be described as “a proceeding in the nature
of the appeal” and whether it is available to the respondent “by virtue of an
enactment”. It is important to note that both these conditions must be
satisfied before section 120(7) comes into play. Both issues will have to be
examined separately but, first, one must look at the context in which they
require to be decided and that is provided principally by the Equality Act
itself.
The Equality Act
14.
The purpose of the Equality Act 2010, as explained in the Explanatory
Memorandum (para 10), is “to harmonise discrimination law, and to strengthen
the law to support progress on equality”. The Act repealed and replaced
existing equality legislation, including the Equal Pay Act 1970, the Sex
Discrimination Act 1975, the Race Relations Act 1976 and the Disability
Discrimination Act 1995.
15.
In these various items of legislation, Parliament provided for
discrimination claims in the work, employment and occupation contexts to be
dealt with by a specialist tribunal, first called the Industrial Tribunal and
now known as the Employment Tribunal. The establishment of these specialist
tribunals reflected the growing awareness of the importance which should be
attached to equal treatment rights in the field of employment, not least
because those rights are protected under European Union law - see, for instance,
article 16 of the Framework Equality Directive (2000/78/EC) which required
member states to take measures to ensure that any laws, regulations and
administrative provisions contrary to the principle of equal treatment were
abolished.
16.
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. Thus, for
instance, the tribunal may make a declaration as to the rights of the
complainant and the respondent in relation to the matters that arise in the
proceedings before it (section 124(2)(a)); it may order a respondent employer
to pay compensation to a complainant employee (section 124(2)(b)); and it may
make a recommendation (section 124(2)(c)). If a recommendation is not followed,
the tribunal has power (under section 124(7)) to increase the award of
compensation, or, if an award has not been already made, to make one.
17.
These considerations provide the backdrop to the proper interpretation
of section 120(7). Part of the context, of course, is that appeals from
decisions by qualification bodies other than to the Employment Tribunal are
frequently available. It would obviously be undesirable that a parallel
procedure in the Employment Tribunal should exist alongside such an appeal
route or for there to be a proliferation of satellite litigation incurring
unnecessary cost and delay. 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.
18.
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.
19.
Quite apart from the range of remedies available to it, 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).
Proceedings in the nature of an appeal
20.
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, of course, 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 - see, for instance, Kennedy v Charity
Commission (Secretary of State for Justice intervening) [2014] UKSC 20;
[2015] AC 455, paras 51 and 54; and Pham v Secretary of State for the Home
Department (Open Society Justice Initiative intervening) [2015] UKSC 19;
[2015] 1 WLR 1591, paras 96, 113 and 115; and Keyu v Secretary of State for
Foreign and Commonwealth Affairs [2015] UKSC 69; [2016] AC 1355, paras 133,
143 and 274-276. But an inquiry into the proportionality of a decision should
not be confused with a full merits review. As was said in Keyu at para 272:
“… a review based on proportionality is not one in
which the reviewer substitutes his or her opinion for that of the
decision-maker. At its heart, proportionality review requires of the person or
agency that seeks to defend a decision that they show that it was proportionate
to meet the aim that it professes to achieve. It does not demand that the
decision-maker bring the reviewer to the point of conviction that theirs was
the right decision in any absolute sense.”
21.
Judicial review, even on the basis of proportionality, cannot partake of
the nature of an appeal, in my view. 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.
22.
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.
23.
The genesis of the view that judicial review was in the nature of an
appeal lies in the obiter dictum observations of His Honour Judge
McMullen QC in Tariquez-Zaman v General Medical Council (UKEAT/0292/06/DM).
In that case, the issue was whether section 54(2) of the Race Relations Act
1976 (which was in similar terms to section 120(7) of the Equality Act)
precluded the Employment Tribunal from entertaining the complainant’s claim.
Judge McMullen’s conclusion on the issue was obiter because the claimant had
voluntarily relinquished his registration. There was therefore no action by the
GMC on which Dr Zaman could found his claim. At para 31 of his judgment, Judge
McMullen dealt with the argument that judicial review was in the nature of an
appeal in these terms:
“… judicial review is aptly
described as proceedings in the nature of an appeal. Judges in the
administrative court are familiar with dealing with cases under the Medical Act in the form of
appeals proper; thus, they constitute the obvious destination intended by
Parliament for disputes of this nature, once a decision had been made at first
instance. So, if I were required to make a decision, I would uphold the
submission that section 54(2) ousts the jurisdiction of the ET because, in this
case, proceedings can be brought by way of judicial review.”
24.
Judge McMullen had relied on the decision of the Court of Appeal in the
case of Khan v General Medical Council [1996] ICR 1032. In that case,
the appellant’s application for full registration as a qualified medical
practitioner had been refused by the GMC after a five-year maximum period of
limited registration. His application for full registration in accordance with
section 25 of the Medical Act 1983 was refused by the GMC. He then applied to
the Review Board for Overseas Qualified Practitioners for a review pursuant to
section 29 of the Act. That application failed, as did a second application and
request for review. The appellant then made a complaint to an industrial
tribunal that he had been indirectly discriminated against on the ground of his
race within the meaning of section 1(1)(b) of the Race Relations Act 1976,
contrary to section 12(1) of the Act. On a preliminary issue the industrial tribunal
found that the right under section 29 of the Medical Act 1983 to apply for a
review of the decision of the General Medical Council was a proceeding, “in the
nature of an appeal” for the purposes of section 54(2) of the Race Relations
Act 1976 and the appellant’s right to present a claim under section 54(1) was
therefore excluded.
25.
The appellant’s appeal to the Court of Appeal was, unsurprisingly,
dismissed. It was clear that his application to the Review Board constituted a
proceeding in the nature of an appeal. The question of whether judicial review,
as opposed to review by a differently constituted body, would qualify as a
proceeding in the nature of an appeal, was not germane to the issue in Khan.
In Zaman, however, Judge McMullen found a passage from the judgment
of Hoffmann LJ to be particularly instructive. At 1042, Hoffmann LJ had
observed:
“It is a short question of
construction which, in my judgment, admits of an easy answer, namely, ‘Yes’.
Section 29 of the Act of 1983 allows the decision of the General Medical
Council to be reversed by a differently constituted set of persons. For present
purposes, I think that this is the essence of what is meant by ‘proceedings in
the nature of an appeal’. I note that in Wootton v Central Land Board [1957] 1 WLR 424 Lord Evershed MR had to
consider whether an application to the Lands Tribunal by a party who was
dissatisfied with the determination of a land value by the Central Land Board
was in the nature of an appeal. He maintained that it was. He said that it
might fairly be described as an appeal to another body having the right either
of affirming the development value or altering it.”
26.
In saying that the decision could “be reversed by a differently
constituted set of persons”, Hoffmann LJ did not have in mind a judicial review
challenge, in my opinion. It was because the Review Board could, by the
recommendation that they made to the President of the GMC, effectively reverse
the decision of the GMC, that he considered that a review was in the nature of an
appeal. The review by the Board was open-ended and the decision that they were
entitled to reach was unconstrained and not inhibited by the circumstance that
the GMC had reached a particular decision.
27.
Hoffmann LJ did refer to judicial review later in his judgment. At p
1043, dealing with an argument that claimants such as Dr Khan were not able to
pursue claims for race or sex discrimination if they were not permitted to make
complaints to an industrial tribunal, he said this:
“For my part, I do not see why [an
application for review under section 29] should not be regarded as an effective
remedy against sex or race discrimination in the kind of case with which
section 12(1) of the Race Relations Act 1976 deals. That concerns
qualifications for professions and trades. Parliament appears to have thought
that, although the industrial tribunal is often called a specialist tribunal
and has undoubted expertise in matters of sex and racial discrimination, its
advantages in providing an effective remedy were outweighed by the even greater
specialisation in a particular field or trade or professional qualification of
statutory tribunals such as the review board, since the review board
undoubtedly has a duty to give effect to the provisions of section 12 of the
Act of 1976: see per Taylor LJ in R v Department of Health, Ex p Gandhi
[1991] ICR 805, 814. This seems to me a perfectly legitimate view for
Parliament to have taken. Furthermore, section 54(2) makes it clear that
decisions of the review board would themselves be open to judicial review on
the ground that the board failed to have proper regard to the provisions of the
Race Relations Act 1976. In my view, it cannot be said that the Medical Act
1983 does not provide the effective remedy required by Community law.”
28.
It is important to understand that Hoffmann LJ was not referring here to
judicial review as a possible candidate for inclusion in the category of a
proceeding in the nature of an appeal. His remarks in this passage were made in
the context of an argument that, in order to have an effective remedy, a
claimant had to be allowed to present a complaint to the industrial tribunal.
He was merely pointing out that the availability of the review procedure,
especially when considered with the opportunity to apply for judicial review of
that review provided an adequate remedy.
29.
More importantly, this passage emphasises the breadth of the review
procedure. As Hoffmann LJ pointed out, the review board was bound to have
proper regard to the provisions of the Race Relations Act. It could only do so
by conducting a scrupulous inquiry as to whether the discrimination alleged had
in fact taken place - in other words, a full-blown inquiry into the allegations
of discrimination was required. I do not consider, therefore, that the decision
in Khan supports the proposition that section 54(2) ousted the
jurisdiction of the Employment Tribunal because proceedings could have been
brought by way of judicial review.
30.
Judge McMullen returned to this theme in his later decision in Jooste
v General Medical Council [2012] EQLR 1048. In that case Dr Jooste claimed
that the acts of an “Interim Orders Panel” of the GMC suspending his
registration were discriminatory under the Equality Act. Judge McMullen,
sitting in the Employment Appeal Tribunal, upheld the decision of the
Employment Tribunal, that it had no jurisdiction to hear the claimant’s
complaints against the GMC as the remedy available in judicial review was an
alternative statutory remedy under section 120(7). At para 44 of his judgment
he said that “an appeal simply is the opportunity to have a decision considered
again by a different body of people with power to overturn it.” For the reasons
given earlier, I cannot agree with that statement. An appeal is different from
a review of the legal entitlement to make a decision; it involves an
examination of what decision should be taken in the dispute between the
parties. The Court of Appeal in the present case concluded that Jooste had
been wrongly decided. I agree.
By virtue of an enactment
31.
The GMC accepts that when the provisions which preceded section 120(7)
were originally enacted they did not exclude decisions subject to challenge by
way of the prerogative writs. That is because judicial review originated as a
common law procedure and not by virtue of any enactment. The appellant argues,
however, that judicial review proceedings became proceedings “by virtue of an
enactment” on the coming into force of the Senior Courts Act 1981. Section
31(1) of that Act provides:
“(1) An application to the
High Court for one or more of the following forms of relief, namely -
(a) a mandatory,
prohibiting or quashing order;
(b) a declaration or
injunction under subsection (2); or
(c) an injunction under
section 30 restraining a person not entitled to do so from acting in an office
to which that section applies,
shall be made in accordance with
rules of court by a procedure to be known as an application for judicial
review.”
32.
The appellants’ case misconstrues both section 31(1) of the Senior
Courts Act and section 120(7) of the Equality Act 2010. It rests on a
misunderstanding of the nature of judicial review. Judicial review is not a
procedure which arises “by virtue of” any statutory source. Its origins lie in
the common law. As Laws LJ said in R (Beeson) v Dorset County Council
[2002] EWCA Civ 1812:
“The basis of judicial review
rests in the free-standing principle that every action of a public body must be
justified by law, and at common law the High Court is the arbiter of all
claimed justifications.” (at para 17) [emphasis added]
See also the observations of Lady Hale in R (Cart) v The
Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663, para 37:
“… the scope of judicial review is
an artefact of the common law whose object is to maintain the rule of law -
that is to ensure that, within the bounds of practical possibility, decisions
are taken in accordance with the law, and in particular the law which
Parliament has enacted, and not otherwise.”
33.
Section 31 of the Senior Courts Act did not establish judicial review as
a procedure, but rather regulated it. The remedies remain the same as those
under the prerogative writs. All that section 31 does is to require that applications
for judicial review be brought by way of a new procedure under the rules of
court. The point was put succinctly and clearly in terms with which I fully
agree by Moore-Bick LJ at para 53 of his judgment in the Court of Appeal in the
present case, where he said:
“… the words ‘by virtue of an
enactment’ in section 120(7) are directed to cases in which specific provision
is made in legislation for an appeal, or proceedings in the nature of an
appeal, in relation to decisions of a particular body, as, for example, in Khan v General
Medical Council [1996] ICR 1032. They are not … intended to refer to
the general right to seek judicial review merely because, since 1981, that
happens to have been put on a statutory footing.”
34.
Another way of looking at the question is to consider what the effect
would be of the repeal of the 1981 Act. I suggest that 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.
35.
Section 120(7) is part of a carefully constructed statutory scheme. It
is the most recent incarnation of similarly worded provisions in legislation
such as is mentioned in para 14 above. 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.
Conclusions
36.
In my view, 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.
I would dismiss the appeal.
LORD MANCE:
37.
I agree with Lord Kerr that the appeal should be dismissed broadly for
the reasons he gives. My only additional observations are these:
i)
I would not circumscribe the development of judicial review or its
ability to cater, in appropriate circumstances, for close examination of a
claim on its merits: see eg the authorities which Lord Kerr cites in para 20;
ii)
judicial review may, in appropriate circumstances, lead the court to a
conclusion that there exists only one possible outcome of a relevant legislative
or executive decision-making process: see eg In re G (Adoption: Unmarried
Couple) [2008] UKHL 38; [2009] AC 173, para 144;
iii)
conventional appellate review is itself not infrequently circumscribed
by considerations of respect for the original or first instance decision-maker:
see eg the discussion in Assicurazioni Generali SpA v Arab Insurance Group
(Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577; see also Datec
Electronic Holdings Ltd v United Parcels Services Ltd [2007] UKHL 23;
[2007] 1 WLR 1325.
38.
Here, however, the Employment Tribunal offers the natural and obvious
means of recourse in respect of the respondent’s surviving complaints. There is
no need in this context to strain the ordinary usage or understanding of the
concept of “appeal” to embrace judicial review. In parenthesis, it is
unsurprising to find that, where the Medical Act 1983 does allow an appeal, it
does so expressly: section 40. Finally, the history, which Lord Kerr recounts
under the rubric “By virtue of an enactment” in paras 31 to 35, points very
strongly against judicial review having become, suddenly but silently in 1981,
a relevant “appeal” for the purposes of the similarly worded predecessor
provisions to section 120(7) of the Equality Act 2010.
