UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

Background

The case was about the meaning of the Equality Act 2010, s 120(7), which removes from the jurisdiction of the employment tribunal any decision which is “subject to an appeal or proceedings in the nature of an appeal”.

Dr Michalak was subject to fitness to practise proceedings brought by the General Medical Council (GMC), proceedings in which she claimed that the GMC discriminated against her. She brought a discrimination claim against the GMC in an employment tribunal. The GMC applied to have her claim struck out on the basis that the tribunal did not have jurisdiction to hear it, because Dr Michalak could have brought a judicial review against the GMC and so s 120(7) applied to remove the tribunal’s jurisdiction.

Decision

In a judgment by Lord Kerr, with whom all other justices agreed, the Supreme Court decided that the ET did have jurisdiction to hear Dr Michalak’s discrimination claim.

Reasons for decision

The court held that judicial review proceedings are not “an appeal or proceedings in the nature of an appeal”, and so the availability of judicial review does not cause s 120(7) to apply.

Judicial review proceedings, unlike appeals, do not amount to full merits reviews of decisions, and do not result in the reversal or substitution of a decision, which makes them materially different from an appeal. Judicial review is “a proceeding in which the legality of or the procedure by which a decision was reached is challenged”, which is different from an appeal of the content or substance of a decision. Without substantive review, and substitution of a decision, the requirement for “an appeal or proceedings in the nature of an appeal” was not met.

Furthermore, s 120(7) refers to jurisdiction being ousted by an appeal in place “by virtue of an enactment”. That corroborated the court’s decision that s 120(7) does not apply to judicial review. Judicial review is a common law remedy, and is not in force by the enactment of any statute. The GMC pointed to the Senior Courts Act 1981, s 31(1) as the legislative source of judicial review; but the Supreme Court held that s 31(1) regulates but does not create judicial review, which remains a common law procedure.

Although on one reading a fairly limited judgment on a technical jurisdiction point, the Supreme Court’s decision in Michalak may have greater repercussions: procedures and disclosure obligations vary as between appeals and judicial review, and the judgment may fortify arguments made in relation to those. In addition, some of Lord Kerr’s observations, and Lord Mance’s brief concurring judgment, add to the ongoing debate about the intensity of merits-review that may be appropriate in judicial review proceedings, and the judgment may have some wider value as a result.