Wednesday 30 March 2016

Discrimination Claims against Qualification Bodies can be brought in the ET

Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary
Do employment tribunals have jurisdiction to hear discrimination claims against qualification bodies such as the GMC?

Yes, held the Court of Appeal in Michalak v General Medical Council.

Dr Michalak was dismissed by the NHS Trust that employed her. Prior to her successful employment tribunal proceeding, the Trust referred her to the GMC. Dr Michalak complained that, in the investigation and hearing of her case, the GMC discriminated against her.

In finding that the employment tribunal had jurisdiction to hear the claim against the GMC, the Court of Appeal rejected the contention that the employment tribunal's jurisdiction was ousted by section 120(7) Equality Act 2010 because of the availability of judicial review.

Section 120(7) precludes employment tribunal claims against qualification bodies where the decision is subject to "proceedings in the nature of an appeal". Upholding the appeal, the Court held that Parliament had not intended that judicial review were proceedings in the nature of an appeal, and its availability did not therefore oust the jurisdiction of the employment tribunal.

This decision does not necessarily mean that all allegedly discriminatory acts of regulators are amenable to employment tribunal proceedings. If the act complained of is appealable, either internally or statutorily to the High Court, then the employment tribunal's jurisdiction will probably be ousted.

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