Tribunal Finds General Medical Council Liable for Race Discrimination

The Reading employment tribunal has found the General Medical Council liable for direct race discrimination.

Dr. O Karim is an NHS doctor of African/ European ethnicity. Complaints were made against him in 2013/2014, culminating in a Fitness to Practice Tribunal (FTP) in 2018 (a tribunal that solely gauges fitness to practice, not any employment law matters). He was cleared of all charges. However, a white doctor, facing not materially different allegations, was not subject to an FTP. Dr. Karim alleged this difference in treatment was because of his race. He submitted a direct race discrimination claim.

 Several things need to be present for a direct race discrimination claim to succeed:

  1. Less than favourable compared to a comparator without the Claimant’s ethnicity.
  2. A finding that the treatment could have been because of the Claimant’s ethnicity.
  3. The absence of an explanation that it was not because of his ethnicity.

Dr. Karim alleged less than favourable treatment compared with the white doctor. The tribunal inferred that it could have been because of his ethnicity. They found this because studies have shown that BAME doctors are more likely to be referred to fitness to practice panels than white doctors. It did not consider the GMC’s explanation for this differential treatment meritorious. Therefore, the Claimant’s claim for direct race discrimination was upheld.

Comment

There are several things to note here. The GMC’s conduct was found to have been discriminatory. The figures do seem to suggest a level of unconscious bias in the referral process. Employees should be given robust, engaging, and comprehensive equalities training, allowing them to understand how the mind works (particularly in a decision making context) (). Regulators are covered by the Equality Act 2010.

On the other hand, the GMC’s thought process may have been benign. It may be that they just couldn’t properly prove that discrimination was not the reason for the less than favourable treatment. In this instance, keeping adequate records helps. The more material you are able to draw on to prove that discrimination was not the cause of unfavourable treatment, the better. Employers with poor records have little to rely on. This is fraught when the burden of proof in discrimination claims passes to the employer when the claimant has raised a claim that shows that he was treated less favourably than a comparator of a different race in similar cicrumstances.

Lighter Side of the News

It seems McCdonalds have a rogue employee. A man has been filiming himself ruining customers’ orders. It’s certainly gross misconduct and possibly makes the individual liable for reputational damage. Nevetheless, it’s pretty funny. Click the link below to watch the man put about 100 pickles in a cheeseburger:

https://www.mirror.co.uk/news/world-news/mcdonalds-worker-films-himself-serving-23867557

 

Publication

One for you employment law buffs. A new book has been released on transgender law. This is an increasingly hot topic and is doubtless going to continue to dominate headlines. It is also a fascinating area. The book is here:

http://www.lawbriefpublishing.com/product/transgenderlaw/

If any of these issues arise in your business, PJH Law are equipped to help. We follow current affairs closely and are experts in the Equality Act.

Is Long Covid a Disability?

         

This question has been doing the rounds in the media.

The answer is: it depends.

The definition of a disability in the Equality Act is a physical or mental impairment that has a substantial and long term adverse effect on an individual’s ability to carry out normal day to day activities.

Long covid could be a disability. However, several things need to be satisfied. Firstly, it needs to be an ‘impairment’. This is easy to establish. For a physical impairment, there just needs to be ‘something wrong with them physically’. There need not be an identifiable cause of the ailment. This helps with long covid because it is a novel ailment.

Secondly, and of most relevance here, the impairment needs to be long term. This means that it has lasted a year or longer, or is expected to last a year or longer. According to individual’s who have had long covid, this may well be the case.

Thirdly, it must have a ‘substantial’ adverse effect on their ability to carry out normal day to day activities. ‘Substantial’ here only means ‘more than minor or trivial’ (as defined by the Equality Act), so the threshold is relatively low. The individuals’ impairment need only have a more than minor adverse effect on their ability to carry out normal day to day activities. Normal day to day activities is exactly what is says on the tin: getting dressed, commutting, preparing food etc (amongst other things). Therefore, there is certainly a reasonable argument that long covid has that effect.

This is certainly a space to watch and employers might be advised to tread with a degree of caution. Ultimately, long covid is a new phenomenon but this does not preclude it from being a disability under the Equality Act.