Omer Karim v The General Medical Council

The Court of Appeal dismissed the appellant's appeal and upheld the Employment Appeal Tribunal's view that parts of the Employment Tribunal's decision were inadequately reasoned. The case concerned a claim of direct race discrimination under the Equality Act 2010 arising from a prolonged GMC fitness to practise investigation and various decisions in its course.

Key legal principles: the comparator question under section 23 of the Equality Act 2010 requires that any material differences between the claimant and comparator be identified and explained; the burden of proof under section 136 requires tribunals to set out primary facts from which an inference of discrimination is drawn and to engage with any non-discriminatory explanation offered; and a tribunal must give adequate reasons, especially when inferring unconscious discrimination.

Main grounds for the court's decision: the Employment Tribunal did not adequately explain why differences between the appellant and the cited comparator, Dr Laniado, were not material; the tribunal failed to engage sufficiently with statistical and research evidence relied on by the respondent and to explain why the respondent's non‑discriminatory explanations were rejected; and the reasoning about delay and the decision to link cases was insufficiently developed. For these reasons the ET findings on four discrete complaints (including delay and differential treatment) could not stand and were remitted for rehearing.

The appellant, a consultant urological surgeon, was investigated by the General Medical Council between November 2014 and April 2018. A Medical Practitioners Tribunal subsequently found no misconduct and no impairment of fitness to practise. The appellant brought proceedings in the employment tribunal alleging direct race and/or religious discrimination by the GMC in the conduct of its investigation and related decisions. The Employment Tribunal upheld four particulars of race discrimination (a second IOP referral, differential progression of the same allegation against a comparator, continuing to pursue an allegation despite doubts about a key witness, and prolonged delay). The Employment Appeal Tribunal allowed the GMC's appeal and remitted the matters to a differently constituted tribunal limited to the four complaints the ET had upheld. The appellant appealed to the Court of Appeal, which dismissed the appeal.

Nature of the claim: claim of direct race discrimination (Equality Act 2010) in the context of regulatory fitness to practise proceedings.

Relief sought: declarations and findings of unlawful discrimination (the ET found some complaints well founded; those findings were challenged on appeal and remitted).

Issues framed:

• whether the ET properly identified an appropriate comparator and explained why any differences were not material under section 23;
• whether the ET correctly applied the burden of proof under section 136 when drawing inferences of discrimination;
• whether the ET gave adequate reasons in respect of delay and the use of statistical evidence to support inferences of discrimination; and
• whether the ET had lawfully and adequately evaluated the respondent's non-discriminatory explanations and research evidence it produced.

Court's reasoning: the Court of Appeal emphasised established authorities on comparators and the required clarity of tribunal reasoning in discrimination cases (including Chapman, Meek, Bahl and related authorities). It concluded the ET failed to identify and explain material differences between the appellant and the comparator and failed to engage sufficiently with the respondent's statistical and research evidence (notably the Plymouth study and other material), so that the ET's inferences (including about unconscious discrimination and delay) were not supported by adequate primary fact-finding and reasoned analysis. The court therefore dismissed the appellant's appeal and confirmed remittance of the four complaints for rehearing before a fresh tribunal. The court invited careful formulation of issues if the appellant pursues the remitted matters.

Appeal dismissed. The Court of Appeal held that the Employment Tribunal's findings that established differential treatment and delay were unlawful race discrimination were inadequately reasoned. The ET failed to explain why material differences between the claimant and the chosen comparator were not material for s.23 purposes, and it failed to engage sufficiently with the respondent's non-discriminatory explanations and detailed statistical/research material when drawing adverse inferences under s.136 of the Equality Act 2010. As a result the upheld findings could not stand and were remitted for rehearing before a freshly constituted tribunal.

Appeal to the Employment Appeal Tribunal by the GMC was allowed; the EAT remitted the matter for rehearing limited to four complaints of direct race discrimination (see Employment Appeal Tribunal decision [2023] EAT 87). The appellant appealed to the Court of Appeal, which dismissed the appeal: [2024] EWCA Civ 770.