Background:
The claimant, a consultant surgeon, is of mixed race being Black African/European. In 2014 an investigation was carried out into allegations made against him and another consultant (L), who was white. Both were referred to the respondent, but the panel decided not to impose interim orders on them. The report of the investigator was that the allegations against the claimant were well-founded, and he was excluded with disciplinary proceedings being commenced. A further allegation was made against the claimant leading to conditions being placed upon his registration. He subsequently resigned from the trust under a settlement agreement with the disciplinary process ending.

In terms of the other consultant, L, four out of the five allegations were found not to be supported. The trust did not proceed with disciplinary proceedings in relation to the remaining allegation. Subsequent to all of this, in 2018 it was found by the Medical Practitioners’ Tribunal that a case of misconduct impairing fitness to practise against the claimant had not been evidenced.

The claimant brought a claim citing direct race discrimination in relation to the investigation and regulatory action being taken against him.

Outcome:
At first instance, the Tribunal found that the claimant had been subject to direct race discrimination. This was on the basis of the second referral made to the interim orders panel and that no such referral had been made against L, the comparator here. Similarly, the failure to progress the allegation made against L was in contrast with how the claimant was treated. The Tribunal also noted statistics showing that doctors from ethnic minorities were more likely to be complained about and to be given a warning or sanction. The respondent appealed to the EAT and were successful in having it overturned. The claimant subsequently appealed to the Court of Appeal.

The first issue was who should be the claimant’s comparator. The Tribunal had used L but the Court of Appeal stated that unless the cases of the claimant and L were identical, the Tribunal were under a duty to set out the differences and explain why they were not material. The cases between the claimant and L were not identical and this was not done by the Tribunal. The investigator had made markedly different findings in the two cases and that the investigation continued with the claimant’s case but not L’s. In that situation, the Tribunal would have had to explain that those differences were not material, but it did not do so.

The second issue was the use of statistical evidence in relation to complaints being made against doctors from ethnic minority backgrounds. The Tribunal was only considering one element of that report, yet other evidence outlined that there were multiple factors leading to a disproportionate amount of referrals. The actual statistics on the outcomes in those investigations were not relevant considering that all fitness to practise allegations were dismissed. As a result, the Court of Appeal stated that there needed to be careful consideration of the reports and evidence put forward by the respondent rather than just looking at one element of a report.  This was not done.  Accordingly, the claimant’s appeal was dismissed.

Practical Guidance for Employers:
An interesting decision of the Court of Appeal on the evidence to be considered in a discrimination case as well as the process when it comes to comparators. In terms of comparators, the Court states that there is a duty on the Tribunal to outline the differences between the situations and outline whether they are material in relation to the finding of discrimination. This is important especially when many discrimination cases would be highly contextualised and there would be differences in situation affecting various employees who may be relied upon as comparators.

The full case can be found here:
General Medical Council v Dr O M A Karim: [2023] EAT 87 - GOV.UK (www.gov.uk)