Omer Karim v The General Medical Council

In a direct discrimination claim, a comparator is appropriate only where there is no material difference between the circumstances of the two cases. A tribunal must identify the differences and explain why they are immaterial. Under the Equality Act 2010, the particular act complained of must be identified and any inference of discrimination must be grounded in primary facts. Statistics may assist, including in cases of unconscious discrimination, but headline disparities in referrals, sanctions or outcomes do not by themselves support an inference about delay or another specific act. The tribunal must engage with the respondent’s non-discriminatory explanation for that act. Contradictory or incomplete reasoning requires the decision to be set aside and remitted.

The appellant, a consultant urological surgeon, was investigated by the General Medical Council between 2014 and 2018. A Medical Practitioners’ Tribunal found that his fitness to practise was not impaired. He then brought proceedings under the Equality Act 2010, alleging direct race and religious discrimination in the investigation. The Employment Tribunal dismissed the religious claim but upheld four complaints of direct race discrimination, concerning a second interim referral, differential treatment compared with a white doctor, continuation of an allegation involving an unreliable witness, and delay.

The Employment Appeal Tribunal allowed the GMC’s appeal and remitted those complaints to a freshly constituted tribunal: [2023] EAT 87. The central issue was whether the Employment Tribunal had adequately reasoned its comparator analysis, treatment of statistical evidence, burden-of-proof conclusions and findings of conscious or unconscious discrimination.

Bean LJ gave the leading judgment. King LJ and Underhill LJ agreed. The Court of Appeal unanimously dismissed the appeal.

1. Comparator analysis. Section 23(1) of the Equality Act 2010 requires there to be no material difference between the circumstances of the claimant’s case and the comparator’s case. As explained in Macdonald v Ministry of Defence [2003] UKHL 34 and Hewage v Grampian Health Board [2012] UK SC 37, the inquiry is one of fact and degree. Where the cases are not identical, the tribunal must identify the differences and explain why they are not material. The Employment Tribunal had not done so in relation to complaints 1, 4 and 5.
2. Burden of proof and reasons. Section 136 requires the tribunal first to consider what inferences can be drawn from the facts in the absence of an explanation, while identifying the particular conduct said to be discriminatory. Where discrimination, especially unconscious discrimination, is inferred, the tribunal must state the primary facts, explain the inferential process, consider relevant issues and engage with the respondent’s explanation for the particular act. The principles summarised in Law Society v Bahl [2003] IRLR 640, including the requirements associated with Meek v City of Birmingham District Council [1987] IRLR 250, remained authoritative. Submissions cannot ordinarily supply missing reasoning.
3. Statistics and delay. Statistics may support an inference of direct discrimination, but their relevance must be connected to the specific treatment complained of. Figures about referrals, sanctions or outcomes did not obviously support an inference that delay was caused by race. The tribunal also had to analyse the GMC’s explanatory research and its explanation under Rule 8(2)(a) of the 2014 Rules. Its treatment of the linking of the appellant’s case with another doctor’s case and of alleged tenacity in pursuing peripheral allegations was inadequate.
4. The Employment Tribunal’s reasons for upholding complaints 1, 4, 5 and 6 were therefore legally inadequate. The complaints were properly remitted for rehearing before a freshly constituted tribunal in accordance with the EAT’s order.

• Court of Appeal (Civil Division): Appeal dismissed. Complaints 1, 4, 5 and 6 were remitted for rehearing before a freshly constituted Employment Tribunal.
• Employment Appeal Tribunal: The GMC’s appeal was allowed and the four complaints upheld by the Employment Tribunal were remitted: [2023] EAT 87.
• Employment Tribunal: The religious discrimination claim was dismissed. Four complaints of direct race discrimination were upheld.