Solicitors claiming wrongful dismissal can potentially hold the Solicitors Regulation Authority to account in the employment tribunal following a Supreme Court judgment which clarifies rules on bringing complaints against qualifications bodies.
The long-running case Michalak v General Medical Council and others centred on a discrimination complaint brought against the medical regulator by Dr Ewa Michalak. The SRA intervened in support of the GMC.
In 2008, Michalak, a consultant physician, was found by an employment tribunal to have been unfairly dismissed and subjected to discrimination by Mid-Yorkshire Hospitals NHS Trust. She was awarded £4.4 million - one of the highest awards in history.
Before the tribunal’s decision, the trust reported Michalak to the GMC to consider whether she should continue to be registered. Although the trust later accepted there were not proper grounds for the referral, the GMC had already begun fitness-to-practice proceedings.
In 2013 Michalak claimed the GMC discriminated against her in the way it pursued those proceedings, including a failure to investigate complaints she had made against other doctors employed by the trust. She brought a claim in the employment tribunal under the Equality Act 2010.
Under the act, an employment tribunal can hear claims of discrimination against a ‘qualifications body’, except where the conduct complained of can ‘by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal'.
The GMC argued that conduct including a failure to investigate complaints is amenable to judicial review, which constitutes ‘proceedings in the nature of an appeal’. As a result, an employment tribunal could not hear the claim and it should be heard in the High Court instead, the GMC said. The Employment Appeal Tribunal, citing the 2012 decision Jooste v GMC, agreed with the GMC’s position.
However, the Court of Appeal overturned that ruling, prompting the GMC to go to the Supreme Court. The GMC’s appeal centred on whether the availability of judicial review can be ’in the nature of an appeal’ and if an employment tribunal should therefore be excluded as a forum in these types of claims.
In Wednesday’s judgment the Supreme Court unanimously dismissed the appeal.
Writing the lead judgment Lord Kerr said an ‘appeal’ is a procedure that reviews an original decision and may examine the basis on which a decision was made and the merits of the conclusions, whereas a judicial review challenges the legality of or procedure by which a decision is reached. ‘It [a judicial review] cannot partake of the nature of an appeal,’ Kerr said.
The court added that the nature and type of remedy available for claims of discrimination in the administrative court was not equivalent to those available in the employment tribunal.
Juliet Oliver, SRA general counsel, told the Gazette: ‘We intervened because we are a qualifications body, and wanted to ensure the court was fully informed about the range of decisions to which it would apply. This is something that would not just affect the GMC.’