General Medical Council v Karim

In a direct discrimination claim, the tribunal must identify each impugned act and explain why the circumstances of an actual comparator were not materially different in respects relevant to that act. Where the respondent’s asserted reason for the act is also said to constitute a material difference, the tribunal must engage with and explain why it rejects that explanation.

Statistics may support an inference of conscious or unconscious direct discrimination, but the tribunal must explain how they bear on the particular act complained of. It must also address material research or evidence advanced to rebut that inference. Findings that a process was unnecessary, unfair or inefficient do not alone establish that it was because of race.

The claimant, a black African/European Muslim consultant surgeon, was investigated by the General Medical Council concerning several fitness-to-practise allegations. The GMC twice referred his case to an Interim Orders Panel, later referred certain allegations to a Medical Practitioners Tribunal, and took several years to conclude the process. The MPT found no misconduct.

The Employment Tribunal upheld the claimant’s complaint of direct race discrimination, while dismissing his religion complaint. It relied principally on comparisons with Mr Laniado, a white doctor involved in some related events, on the delay in the investigation, and on statistical evidence concerning BME doctors.

The GMC appealed. The central issue was whether the tribunal had adequately and consistently explained why the complained-of decisions and delay were because of race.

1. Appeal allowed. The Employment Tribunal’s findings upholding four complaints of direct race discrimination could not stand. Its reasons did not clearly identify the outcome of every individual complaint and contained material inconsistencies.
2. Under Equality Act 2010, sections 13 and 23, an actual comparator need not be identical in every respect, but there must be no material difference in circumstances relevant to the challenged decision. The tribunal had to engage with the GMC’s case that differences in the evidence and allegations concerning the claimant and Mr Laniado explained the different treatment. In several respects, the asserted non-discriminatory reason and the asserted material difference were inseparable. The tribunal did not explain why it rejected that case.
3. The tribunal did not adequately address the GMC’s explanation for the second Interim Orders Panel referral. It did not engage with the claimant-specific Robinson and Hayter allegations, or with the GMC’s case that the Hollywood evidence concerning the claimant’s role differed from that concerning Mr Laniado.
4. The tribunal’s conclusions about the canteen-meeting allegation conflicted with earlier findings which appeared to accept that the Hollywood report justified proceeding against the claimant but not Mr Laniado. Its broad concluding language did not resolve that inconsistency.
5. Statistics about the over-representation of BME doctors may, in an appropriate case, support an inference of direct discrimination. But the tribunal must identify the particular impugned act, set out the primary facts, and explain its reasoning, especially where unconscious discrimination is found. The tribunal treated the statistics and perceived complacency of witnesses as essential, yet did not explain what it made of the GMC’s research evidence said to show no racial bias in its processes.
6. The finding that linking the claimant’s investigation to another case was unnecessary or administratively convenient did not, without more, establish that the resulting delay was because of race. The decision to link the cases was not itself a pleaded act of discrimination.
7. The four upheld complaints were remitted for fresh consideration by a differently constituted Employment Tribunal. The remaining complaints, which had not been upheld and were not cross-appealed, were not reopened.

• Employment Appeal Tribunal: appeal allowed; the four upheld race-discrimination complaints were remitted for fresh consideration by a differently constituted Employment Tribunal ([2023] EAT 87).
• Employment Tribunal: upheld the complaint of direct race discrimination and dismissed the religion and belief complaint. Its upheld race-discrimination findings were set aside to the extent remitted.