The Court of Appeal has dismissed an appeal by Dr Omer Karim who appealed a ruling by an Employment Appeal Tribunal.

We previously reported that an Employment Appeal Tribunal ruled the GMC did not racially discriminate against Mr Karim.

In Karim v General Medical Council [2024] EWCA Civ 770 (09 July 2024), Dr Karim appealed the Employment Appeal Tribunal’s (EAT) ruling, advancing eight grounds of appeal to this court:

(1) The EAT was wrong to determine there was a lack of clarity as to whether the ET had upheld Complaint 1.

(2) The EAT was wrong to find that the ET did not sufficiently explain why it upheld Complaint 1 and that there were inconsistencies or conflicts in the ET’s reasoning.

(3) The EAT was wrong to find that the reliance by the ET on the differential treatment of the Appellant and Mr Laniado to shift the burden of proof to the Respondent, was not properly reasoned, was inconsistent, or did not engage with the Respondent’s case.

(4) The EAT erred in determining that the ET was required to mention expressly the research evidence the Respondent relied on to rebut the Respondent’s own statistical material relied on by the Appellant.

(5) The EAT was wrong to determine that because the linking of the Appellant’s case with that of Mr Motiwala was not raised as a specific complained of discrimination, it could not materially support the Appellant’s case, or be relied on to shift the burden of proof.

(6) The EAT was wrong to describe the ET’s finding in relation to delay, that the linking of Mr Motiwala’s case was “unnecessary and a matter of limited administrative convenience”, as not pointing to race discrimination. The ET’s findings were much wider and more critical and were matters from which inferences of discrimination could properly be drawn.

(7) The EAT impermissibly engaged in a wholesale review of the ET’s written reasons.

(8) If, contrary to the grounds above, the EAT were entitled to allow the appeal, it ought not to have restricted the remittal to the four complaints it found that the ET had upheld but remitted either the entire claim for rehearing or the six complaints the judgment addressed.

It is important to note that the outcome of the EAT decision, in allowing the appeal, remitted the matter for consideration by a differently constituted tribunal restricted to the four complaints of direct race discrimination it determined the ET had upheld (Complaints 1, 4, 5 and 6). 

UK Fitness to Practise News

However, Lord Justice Bean, said in his ruling:

“… I consider, in agreement with the EAT, that the ET’s decision upholding complaints 1, 4, 5, and 6 was inadequately reasoned and cannot stand. I would therefore dismiss Mr Karim’s appeal, the result is that in accordance with the order of the EAT those four complaints will be remitted for re-hearing before a freshly constituted ET.”

Supplementing this, Lord Justice Underhill (Vice President, Court of Appeal, Civil Division) said:

“I agree that this appeal should be dismissed for the reasons given by Bean LJ. Since the case was not argued before us, or the EAT, on the basis that the evidence before the ET was incapable of supporting a finding of discrimination, it is inevitable, though very regrettable, that the claim – or, rather, those parts of it which the ET upheld – will have to be remitted for re-hearing. But I would encourage the Appellant and those advising him to think carefully about the way in which they formulate his case on remittal, if indeed he decides that he wishes to pursue it. As regards the differences in the treatment of himself and Mr Laniado on which he relies, there appear to have been no specific reasons to infer a racial motivation on the part of the relevant decision-takers beyond the fact he and Mr Laniado are of different ethnic backgrounds. That is no doubt why the statistical evidence discussed by Bean LJ was put at the forefront of the Appellant’s submissions in the ET.

“Although it has not been necessary, or indeed possible, for us to attempt a definitive analysis of that evidence, the questions raised by Bean LJ at paras. 58-61 above show that it cannot be relied on as raising a prima facie case of racial discrimination without a careful consideration of how it sheds light on the reasons for the particular instances of differential treatment of the kind of which the Appellant complains. Simple reliance on headline figures about adverse outcomes is not good enough, at least where the ultimate outcome in his case was a decision that he was not guilty of any misconduct and his essential complaint is about delays in the process.

“Like Bean LJ, I can well understand that the Appellant feels aggrieved by those delays; but what he has to prove in this case, albeit with the benefit of section 136 of the 2010 Act, is that they were caused or significantly contributed to by his race.”

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