In Michalak v General Medical Council the Supreme Court held that it is permissible for employment tribunals to hear discrimination claims against qualification bodies such as the GMC.
Dr Michalak had been employed by an NHS Trust but was found to have been unfairly dismissed. Before the unfair dismissal was determined she had been referred, by the Trust, to the General Medical Council (GMC) which began fitness to practice proceedings. Dr Michalak then complained, in a separate tribunal claim that the GMC had discriminated against her.
Section 120(7) of the Equality Act 2010 prevents employment tribunal claims agains qualification bodies when “by virtue of enactment” their decision is subject to “proceedings in the nature of an appeal”.
The Supreme Court found that the employment tribunal did have jurisdiction to hear the claim as, in the context of this case, judicial review was not “in the nature of an appeal”. Discrimination complaints cannot be answered by looking at the reasons why a discriminator acted in a discriminatory manner and then deciding whether that then lay within the range of reasonable responses. It also found that as judicial review was originally a common law procedure it was, therefore, not a solution provided “by virtue of enactment”.
16th November 2017