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Case Law Update: Michalak - "The Nature of Judicial Review"

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Michalak v General Medical Council [2017] UKSC 71

The recent case of Michalak involves the nature of judicial review on administrative action.

The Claimant brought a claim in the Employment Tribunal against the General Medical Council (GMC), its chief executive, and one of its investigation officers in relation to her discrimination complaint.

Dr Michalak’s dismissal was in relation to her conduct, so that a question of whether she should continue to be registered as medical practitioner could be considered.

Dr Michalak complained that she had been discriminated against by bringing fitness to practice proceedings against her and failing to investigate complaints she made against other doctors. The GMC argued that the tribunal did not have jurisdiction to hear this case on the basis that the application for judicial review already provides for an appeal in these circumstances.

 The matter for discussion in the appeal was whether the availability of judicial review proceedings in respect of decisions or actions of the GMC can properly be described as proceedings "in the nature of an appeal" and whether the jurisdiction of the Employment Tribunal is excluded by section 120(7) of the Equality Act 2010 which specifies that an Employment Tribunal does not have jurisdiction if the complaint is subject to an appeal or proceedings in the nature of an appeal.

The Supreme Court dismissed the appeal. An appeal is a procedure which involves a review of an original decision in all its aspects – the general rule is you cannot introduce new or additional evidence at the appeal. It is an examination of the basis on which the original decision was made, and, if the appeal body disagrees, it may substitute its own view.

In contrast, judicial review is a proceeding in which the legality of a decision or procedure by which a decision is reached is challenged.

 The remedy available on a judicial review application in circumstances such as the present is a declaration that the decision is unlawful or that the decision be quashed.  The court cannot substitute its own decision for that of the decision-maker and, in any event, the decision of the GMC could not be reversed.

An appeal in a discrimination case must challenge directly the question whether discrimination has taken place, not whether the GMC had taken a decision which was legally open to it.

For advice on tribunal proceedings and employment law generally, please contact our Employment Law Department.

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