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On appeal from: [2016] EWCA Civ 172

This case considered whether the availability of judicial review proceedings in respect of decisions of the GMC excludes the jurisdiction of the Employment Tribunal by virtue of the Equality Act 2010, s 120(7).

The Supreme Court dismissed the appeal. It considered that the Employment Tribunal was designed to be a specialised forum for the resolution of disputes between the employee and employer, with the power to award a comprehensive range of remedies. Where Parliament has provided an alternative route of challenge to a decision through an appeal or an appeal-like procedure, however, it makes sense for the appeal procedure to be confined to that statutory route, though this can only apply where the alternative route is capable of providing an equivalent means of redress. The Supreme Court stated that the origins of judicial review lie within the common law and it is not a procedure which arises “by virtue of” any statutory source; as such had Parliament intended that judicial review was within the scope of the procedures contemplated by s 120(7), it would be expected that it would have provided for it expressly. In a judicial review, the court cannot substitute its own decision for that of the decision-maker and, in that sense, the decision of the GMC could not be reversed. An appeal in a discrimination case must confront directly the question whether discrimination has taken place, not whether the GMC had taken a decision which was legally open to it and thus the jurisdiction of the Employment Tribunal is not excluded.

For judgment, please download: [2017] UKSC 71
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (4 Jul 2017 morning session) (4 Jul 2017 afternoon session)