In Karim v GMC, the Reading ET has found that the GMC discriminated against Dr Karim on the grounds of his race. We explore the ET’s decision and the key takeaways from this landmark case, in our insight below.

Background

Dr Karim (who is a Muslim of African and European heritage) was employed by an NHS Trust as a Consultant Urologist. An external review of the Urology department was commissioned by the Trust, which identified concerns about Dr Karim and others. Dr Karim and the others under investigation were excluded by the Trust in October 2014 whilst an independent investigation was carried out.  At the same time, the Trust also referred the matter to the GMC.

In March 2015, the interim orders panel of the Medical Practitioners Tribunal Service imposed restrictions on Dr Karim’s practice, pending the outcome of the GMC's investigation. These restrictions were lifted in August 2015, but the fitness-to-practise hearing did not take place until March 2018. After a 13 day hearing, Dr Karim was found not to have committed any acts of misconduct. Dr Karim brought claims in the Reading ET against the GMC, alleging that the GMC’s treatment of him amounted to direct discrimination on the grounds of race and religion.

The ET’s decision

The ET upheld Dr Karim’s race discrimination claim and found that:

• Dr Karim was treated differently compared with a white doctor (Dr L). The ET would have expected to see them treated in substantially the same way, and the GMC did not provide a credible explanation for the difference in treatment.
• There was “significant delay” in the GMC’s proceedings involving Dr Karim despite the fact that “much of the evidence was available from an early stage”.
• The GMC “was looking for material to support the allegations against [Dr Karim] rather than fairly assessing matters presented.”
• The “adverse position of BME doctors when compared with white doctors” was evident from the statistics underpinning Dr Karim’s claim; “BME doctors are 29% of all UK doctors however employers make 42% of their complaints about BME doctors. UK graduate BME doctors are 50% more likely to get a sanction or warning than white doctors”.
• “In carrying out its work in respect of the complaints about [Dr Karim] the [GMC] should have been conscious and aware of this background”. Instead, there was “a level of complacency about the operation of discrimination in the work of the GMC or that there might be discrimination infecting the referral process.”

What to take away

This is the first time that a discrimination claim has successfully been brought against the GMC by a registrant. However, we are seeing a rise in discrimination claims against regulatory bodies from registrants and this decision demonstrates that there is a risk of these claims succeeding, particularly if statistics suggest disproportionate responses to groups with protected characteristics.

The ET in this case was particularly critical of the apparent lack of understanding and awareness shown by the GMC’s witnesses of equality and diversity issues and the significance of the over-representation of BME doctors in complaints to the GMC.

Going forward, we recommend that regulators:

• Review equality, diversity and inclusion statements and policies to ensure that they are up to date.
• Ensure that, for those involved in case management, advice, investigations and decision making processes following a referral, all relevant training includes unconscious bias / assumptions and is up to date, effective and kept under regular review.
• Conduct an audit /assessment of referrals, timescales and outcomes to 1) identify whether professionals with different diversity characteristics have different experiences / outcomes, 2) understand why that might be, and, 3) take the necessary action to address any unfairness.
• Review and revise internal processes to ensure that they include appropriate checks and balances at each stage (to ensure consistency and move away from a process-driven approach) and look to focus more on learning /supporting and away from ‘blame’.
• Is your organisation inclusive and diverse and does it represent the members you regulate? Conduct an audit / assessment to identify any under-representation or unfairness and take steps to address them (for example, taking positive action to attract and promote under-represented groups).

How Capsticks can help

Capsticks has significant experience of supporting employers and regulators to assess, review and implement effective equality, diversity and inclusion strategies and to prevent discrimination (by drafting relevant policies and delivering training to employees at all levels) and also to deal with any complaints that may arise (by conducting investigations, supporting decision-makers and HR, and defending any employment tribunal claims).

For further information on how we might assist your organisation, please contact Victoria Watson, Anna Semprini or Jonathan Lewis.