Following the decision by the Court of Appeal in Michalak v General Medical Council & Ors  EWCA Civ 172, discrimination claims against qualifications bodies can be brought in the Employment Tribunal.
This case concerned a medical practitioner who was employed as a doctor by an NHS Trust. Her employer dismissed her and referred her to the GMC (the General Medical Council, a ‘qualifications body’) to review her registration to practise. Subsequently, the Employment Tribunal found that M’s dismissal was unfair and contaminated by discrimination and victimisation, and M’s registration to practise remained intact.
The GMC has the power to erase, suspend or impose conditions on a medical practitioner’s registration. This decision is subject to appeal to the High Court, which has the power to: dismiss the appeal; allow the appeal and quash the original decision; substitute a new decision for the original decision; remit the matter for a re-hearing; and make a costs order.
The Equality Act 2010 precludes a complaint against a ‘qualifications body’ (such as the GMC) being brought to the Employment Tribunal (ET) where Parliament has provided a statutory route for appeal for a complaint (s.120(7) EA 2010). Thus it would appear that M should have had no recourse to the ET; however, her complaints do not relate to her registration. M’s complaints relate to allegedly unlawful actions during the fitness to practise investigation and hearing, including harassment and unlawful sex, race and disability discrimination. S.53 EA 2010 prohibits a qualifications body from discriminating against, harassing or victimising a person on whom it confers or has conferred a qualification by (among other things) withdrawing or varying the terms on which that qualification is held, or subjecting that person to any detriment.
The Court of Appeal held that the ET had jurisdiction to hear M’s complaint.
It was held that the purpose of s.120(7) EA 2010 is “to ensure that the most specialist body hears the complaint” . Thus where the complaint is not related to the specialist professional knowledge of the qualifications body, but to unlawful discriminatory behaviour prohibited by s.53 EA, the ET is the relevant specialist tribunal.
The ET is established to deal with discrimination and related issues. The process of the ET is specifically designed to assist with a determination of those issues; whereas these procedures are unavailable to the Administrative Court in Judicial Review proceedings. Moreover, the availability of Judicial Review is a safeguard to ensure a remedy is available “where no other remedy exists, but here, the ET has a sufficient jurisdiction with appropriate remedies which should be used before recourse to judicial review is contemplated” .
This is an important decision for qualifications bodies and for those regulated by such a body, such as a nurse, midwife, doctor, solicitor, barrister or dentist. Not only will an individual have access to the Employment Tribunal where it is alleged that their employer has acted unlawfully; the ET will also hear cases against qualifications bodies which have allegedly breached their obligations pursuant to s.53 Equality Act 2010.