Regulatory Appeals – An Alternative Forum

The Court of Appeal^[1] in Michalak v General Medical Council^[2] has endorsed an alternative route of appeal to the Employment Tribunal (ET) for claims of discrimination, victimisation or harassment by a ‘qualifications body’ such as the General Medical Council, General Dental Council or Nursing and Midwifery Council. This overrules a previous decision by the Employment Appeal Tribunal^[3] which held that the conventional route of challenge, to the High Court by way of judicial review (JR), precluded consideration by an ET. Where the issues are limited to procedural unfairness or the lawfulness of a decision JR remains; however, arguments relating to protected characteristics can now be heard in an alternative forum.

A qualifications body has the power to register and, in appropriate cases, to remove, limit or suspend the registration of a qualified individual contained upon its lists (a Registrant). Under the ‘fitness to practise’ jurisdiction, a qualifications body receives, scrutinises and screens initial complaints about Registrants. Where the complaints go forward to an inquiry, a qualifications body is responsible for the preparation of the evidence and the drafting of allegations. Any hearing that follows is heard by a fitness to practise committee which is part of the qualifications body but is operationally independent. A decision to erase, suspend, or to impose conditions on a Registrant is susceptible of a statutory route of appeal to the High Court, which is empowered to dismiss the appeal; allow the appeal and quash the original decision; substitute a new decision for the original decision; remit the matter for re-hearing, and in all circumstances make a costs order.

The Equality Act 2010 (the Act), s.53, prohibits a qualifications body from discriminating against a Registrant based upon a protected characteristic such as age, disability, race, religion or sex. Discrimination can include: withdrawing a Registrant’s qualification; varying the terms on which an individual holds the qualification; or subjecting a Registrant to any other detriment as a result of a protected characteristic. An ET may award appropriate damages against a qualifications body which breaches this prohibition. However, prior to Michalak v General Medical Council, it was thought that section 120(7) of the Act removed the jurisdiction of the ET in relation to the fitness to practise jurisdiction because of the oversight of the High Court:

120 Jurisdiction

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

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

(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.

On 23 March 2016, The Court of Appeal in Michalak v General Medical Council, rejected this interpretation of section 120(7). It was held that although JR is undoubtedly a remedy of last resort, it is not an appeal on the merits that provides a determination in relation to potentially relevant unlawful treatment. (See: Michalak v General Medical Council, per Ryder LJ, at [40]):

‘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.’

The High Court can quash a decision of a qualifications body but cannot make an award of damages without other relief. The High Court can grant a declaration but would not ordinarily make a finding on contested evidence and cannot issue a recommendation in respect of discrimination, harassment or victimisation. The Court of Appeal held that the appropriate forum to consider whether a qualifications body had breached the prohibitions within the Act was an ET (See: Michalak v General Medical Council, per Ryder LJ, at [45]):

‘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.’

The implications of this decision are potentially far reaching. A Registrant now has an alternative route of appeal, away from the High Court, in which a tribunal can consider evidence on an issue of discrimination, harassment or victimisation. Witnesses could be called to attest to whether an investigation into a Registrant’s fitness to practise was a result of a protected characteristic. This would be unheard of in the High Court which would rarely, if ever, consider evidence or the merits of a claim unless it met the high bar of irrationality.

There are significant limitations to the powers of an ET, which would be unable to quash a decision in relation to a Registrant’s fitness to practice. Allegations drafted by a qualifications body which were predicated on a discriminatory basis and resulted in an interim order of suspension could be considered by an ET but the registration decision could not be overturned. Theoretically however the ET could award damages for the loss of income the Registrant suffered during any period of suspension.

Qualifications bodies must be alive to potential challenge not only to their decisions, for example to refer to a fitness to practice committee, but also any process which might have a detrimental effect on a Registrant. In Michalak v General Medical Council, it was suggested that mere investigation of the appellant acted to her detriment. Only in very exceptional occasions would an investigation commence because of a protected characteristic such as age, gender, race or religion. However, investigations into a Registrant’s fitness to practise where the consideration is disability, including mental health conditions such as stress and depression, are not uncommon. The Act, s.53(7), provides a limited exception to investigations in relation to disability. However, an investigations committee, or their delegated body, must be aware that the exemption from the ET’s jurisdiction, on which they were previously able to rely, no longer exists.

• ^[1] Moore-Bick LJ; Kitchin LJ; Ryder LJ
• ^[2] [2016] EWCA Civ 172
• ^[3] See: Jooste v General Medical Council [2012] Eq. L.R. 1048