Dr A Adams v General Medical Council: 3301580/2023

EMPLOYMENT TRIBUNALS

Case No 3301580/2023

Between

Dr A AdamsClaimant

General Medical CouncilRespondent

Before

Employment Judge L Brown

Mr Mensah (instructed by Counsel) for respondent

Date 17 July 2024

JUDGMENT

[1]The application for a strike out of the Claimants fails and is dismissed.

[2]The application for a deposit order on the Claimants claims fails and is dismissed.

REASONS

[1]I heard evidence from the Claimant and had a witness statement from him that ran to 11 pages. I had a 374-page bundle.

[3]I received written submissions from both parties and also oral submissions at the end of the hearing.

[4]All submissions were taken into account although I do not repeat them in full here.

THE ISSUES

[5]This public preliminary hearing was listed to determine the Respondent’s strike out application under Rule 37(1)(a) of the Employment Tribunal’s Procedure Rules 2013 (“ET Rules”). The Respondents application is made on three grounds, as per the Respondents skeleton argument as follows: -1.1 The Tribunal has no Jurisdiction to hear the Claimant’s claims as it was contended that the Claimant had an alternative right of appeal, pursuant to Section 120(7) (1)(a) of the Equality Act 2010 (“EqA”);

1.2 The Claimants claims had no reasonable prospects of success under s.19, and s.27 of the EqA.

1.3 The Claimants claims were presented out of time, and it would not be just and equitable to extend time to allow them to proceed. Facts

[6]The facts in this matter are not in dispute. The Claimant is a doctor, specialising in emergency medicine. From November 2010 until February 2012, he was employed as a consultant in emergency medicine at Kettering General Hospital (‘KGH’). 3. Whilst employed by the Respondent, the Claimant raised concerns about the way the A&E department at KGH was being managed. In particular the following occurred: -3.1 The Claimant had a private meeting with the HR manager [P.53-55] and it is alleged that in the meeting on the 24 November 2011 the Claimant referred to ‘racial bias every day’.

3.2 The Claimant then took part in a collective grievance about the assistant director of operations, as contained in a letter dated 24th of May 2011 [P.58-59]. In this letter was an allegation in general terms of harassment. 4. Following the matters outlined at 3.1 and 3.2 above the Claimant was then taken through a disciplinary investigation. On the 9 February 2012 the Claimant was dismissed from KGH. KGH alleged that he was dismissed due to a breakdown of trust and confidence, arising from the Claimant’s relationships with his colleagues. 5. The Clamant appealed his dismissal and his appeal was dismissed [P.65 & P.110]. 6. In May 2012 the Claimant commenced a claim against KGH [P.68-74] alleging unfair dismissal and race discrimination.

[7]KGH referred the matter to the Respondent on the 23 May 2012 [P.110]. They then carried out an investigation into the Claimant under its Fitness to Practise rules, and this included the Respondent contacting the Claimant’s new employer North Lincolnshire and Goole NHS Foundation Trust (‘NLAG’).

[8]On the 14 December 2012 the Claimant was given the opportunity by the Respondent to comment upon information sent by KGH and also NLAG [P.148]. In particular the Respondent provided a copy of a letter from Dr O Ashaolu, the clinical director consultant in accident and emergency medicine at NLAG [P.143-146]. In short, the letter raised issues about Claimants ability to work in a team, either as a member or as a leader, as well as suggesting that his number of completed clinical episodes was lower than another, unnamed, doctor, and was judged to be 75% compared to his counterpart.

[9]On the 28 January 2013 Jackie Uppal of the Respondent noted she had not received any comments from the Claimant [P.150]. The Respondent then decided there would be no further action taken as the issues did not ultimately impact on his fitness to practise. The Claimant was notified of this in writing on the 15 of February 2013 [P.151].

[10]The Respondents reasons for the decision reached were then set out in a document described as ’Annex A’ [P.152-153]. There was a finding that the Claimant’s fitness to practise was not impaired, and that the case examiners for the Respondent had decided to take no action [P.157].

[11]Annex A was sent to the Claimant on the 15 February 2013 [P.151-4] It contained the following comments: -(1) ‘...while [C] will quickly see bullying behaviour in other senior staff towards himself he is seemingly unaware that his own behaviour… can be perceived as bullying.’

(2) ‘the repetition of very similar problems in his current employment following his recent dismissal suggests he has not taken steps to address the criticisms of his behaviour and that there has been no mitigation or insight.’

(3) ‘While there is no real danger to patient safety, [Claimants] presence in a department is said to be disruptive in that juniors feel unable to approach him for help and he has poor relationships with nurses and other departments, affecting the smooth running and efficiency of workplaces he is employed within.’

(4) ‘… The repetition of similar concerns from entirely separate trusts suggests a pattern of concern and the possibility that [C] has failed to recognise the impact of his actions and alter his behaviour.’

(5) ‘It was accordingly concluded that guidance concerning interactions with colleagues on the importance of treating everyone with respect should be reiterated.’

The Law

[12]On the 15 February 2013 the Respondent wrote to KGH and NLAG with the text of Annex A incorporated into those letters to them [P.154-156; 158 -160].

[13]The Claimant subsequently settled his claim against KGH. NLAG did not renew the Claimants contract after January 2013.

[14]The Claimant alleges that he then experienced difficulties in obtaining further long-term employment within the NHS. It was undisputed that Annex A remained on his records as maintained by R, and it is the Claimants assertion that such information has been accessed by other prospective employers when making enquiries about him after he applied for roles with them, and that it contributed to him being unable to find long term employment. The Claimant alleges that he was then forced to retire from practising as a doctor in the UK as a result of the contents of Annex A.

Introduction

[15]In or around October 2019 the Claimant became aware of the fact that Annex A was still held on his GMC file after making a subject access request. At this time, he was engaged in further litigation with KGH, NLAG and another NHS Trust.

[16]On 24th January 2022 the Claimant emailed the Respondent raising concerns about the information held on his record [P.234]. In particular he referred to a Dr Chilton being involved as a witness in his claim against KGH and said as follows: - ‘Dr Chilton’s stated objective was for the GMC to reopen the complaint against me.’ He also said: - ‘Furthermore, his allegations that I had had similar problems at Peterborough, Northampton and Northern Lincolnshire and Goole Hospitals were just a compete fabrication with the apparent aim to coerce/manipulate the GMC into reopening its investigation.’

[17]On the 25 June 2022 he asked the Respondents to ‘rectify my record,’ and to review its comments about him in Annex A, and to remove the comments he asserted were unfounded [P.235-240]. He referred to his past litigation with KGH, and in particular said that at a hearing before Judge Kurrein, about his post-termination victimisation claims in 2020, and it is to be noted that his claims were struck out at that hearing, Judge Kurrein said that he didn’t consider the remarks made by the Respondent about the Claimant in Annex A to be ‘an exoneration.’

[18]The Respondent replied to the Claimant on 6 September 2022 treating the Claimants request as a ‘right to rectification request’ under article 6 of the General Data Protection Regulations (‘GDPR’) [P.267].

[19]The Respondent refused to amend Annex A, relying on article 6(1)(e) of GDPR maintaining it had a statutory basis for retaining his personal data. They said that if he was unhappy about the way they used his personal date he could complain to the Information Commissioners Office(‘ICO’) [P.267] On the 8 September 2022 they confirmed no amendments would be made to Annex A, but they would keep a copy of Claimants comments and details of the settlement of his two 2012 claims against KGH on file [P.268].

[20]On 1 December 2022 the Claimant commenced ACAS early conciliation. A certificate was issued on the 4th of January 2023 and the Claimant issued proceedings against the Respondent on the 31 January 2023.

[21]The Claimant now brings the following claims against the Respondent: - 19.1 The Claimant contends creating Annex A with the prejudicial comments about him on or around the 15 February 2013, then maintaining it as a record from that date to the present date, and refusing to amend it on the 6 September 2022, following the Claimants request that they do so, amounts to victimisation contrary to S.27 of the EqA, relying on the following protected acts: -19.1.1 in 2011, the Claimant made complaints to his employer of race discrimination, victimisation, and was party to a collective grievance about behaviours affecting patient care, which all resulted in him being dismissed for gross misconduct in February 2012;

19.1.2 in May 2012, the Claimant made a complaint of unfair dismissal, race discrimination and victimisation to the employment tribunal under the Equality Act 2010, which was settled by COT3 agreement. 20 In short, the Claimant said he was subjected to a detriment because he did those protected acts by the Respondent publishing and retaining prejudicial comments on the Claimants professional records since 2013 following an employer referral. The Claimant asserts a continuing act of victimisation. 21. The Clamant also asserts that the Respondent's refusal to amend the prejudicial information on his record amounts to indirect discrimination on the grounds of race, contrary to S.19 of the EqA. The PCP’s contended for were as follows: -

21.1.1 publishing advice and the details of the employer referral to prospective employers;

21.1.2 failing to remove the advice and details of the employer Respondents referral from the accessible information on his professional record under rule 12;

21.1.3 putting BME doctors at a disadvantage in the circumstances;

21.1.4 the disadvantage and continuing disadvantage to the Claimant in obtaining future employment by the comments made by the Respondent on his professional record;

21.1.5 the comments on the Claimants record which are alleged to be based on untested, inaccurate, and misleading information. The Law Jurisdiction 1.1 The Tribunal has no Jurisdiction to hear the Claimant’s claims as it was contended that the Claimant had an alternative right of appeal, pursuant to Section 120(7) (1)(a) of the Equality Act 2010 (“EqA”); Qualifications bodies and relevant jurisdiction under s.120(7) EqA

[22]It is not disputed that the Respondent was a qualifications body for the purposes of s.54 EqA. The first issue I had to determine is whether the Tribunal has jurisdiction to determine the Claimants complaints, in light of s.120(7) EqA.

[23]Qualifications bodies are prohibited from discriminating against individuals upon whom they have conferred a relevant qualification. S.53 EqA states that: (2)A qualifications body (A) must not discriminate against a person (B)upon whom A has conferred a relevant qualification— (a)by withdrawing the qualification from B; (b)by varying the terms on which B holds the qualification; (c)by subjecting B to any other detriment. 23. However, the jurisdiction of s.53(2) is limited by the operation of s.120 EqA, which states as follows: (1) An employment tribunal has, subject to section 121, jurisdiction to determine a complaint relating to— (a)a contravention of Part 5 (work); […] (7) Subsection (1)(a) does not apply to a contravention of section 53 in so far as the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal.

[24]Accordingly, where an individual complains about an act done by a qualifications body but has “by virtue of an enactment […] an appeal or proceedings in the nature of an appeal” in relation to that act, the ET’s jurisdiction is ousted from determining any complaint of discrimination in relation to the same act. There cannot be concurrent jurisdiction: either s.120(7) applies or it does not (GMC v Michalak [2018] I.C.R 49 (UKSC). Definition of ‘appeal or proceedings in the nature of an appeal’.

[25]In Michalak, Lord Kerr defines “an appeal” as follows [my emphasis added]: [20] In its conventional connotation, an "appeal" (if it is not qualified by any words of restriction) is a procedure which entails a review of an original decision in all its aspects. Thus, an appeal body or court may examine the basis on which the original decision was made, assess the merits of the conclusions of the body or court from which the appeal was taken and, if it disagrees with those conclusions, substitute its own.

[26]This was recently confirmed by His Honour Judge Auerbach in Mr Sanwar Ali v Office of the Immigration Services Commissioner

UKEAT/0271/19/VP

at paragraph 34 where it said: - “the "act complained of" means the substantive conduct complained of – here the refusal to re-register the companies and the removal of them from the register”.

[27]Ali confirmed that it is not necessary that the statutory appeal mechanism expressly cover the allegations of discrimination in relation to the substantive conduct complained of (Ali at [34]). What is required is that the substantive act itself be covered by a relevant appeal mechanism. Thus, in Ali, the Claimant could properly have advanced his allegation, that the refusal to register his companies and/or the removal of them from the register was discriminatory, as part of the relevant statutory appeal process.

[28]In this hearing before me therefore one of the central issues that arose is what the appeal process was that was available to the Claimant at all material times in relation to the maintenance of, and the contents of the record held by the Respondent about the Claimant. In particular was it an appeal process as per Ali ‘which entails a review of an original decision in all its aspects’, and was there a right of review open to the Claimant against the decision to publish Annex A that could, as per Ali ‘. if it disagrees with those conclusions, substitute its own.’

[29]In Khan v General Medical Council

[1996] ICR 1032

, CA the ET’s jurisdiction was found to have been ousted by s.120(7): The GMC refused the Claimant full registration under s.25 of the Medical Act 1983, which would have enabled him to practise in the UK. However, the tribunals decision, that it did not have jurisdiction, was upheld when it was found that the Claimant’s right under the Medical Act 1983 to apply for a review of the decision of the GMC (under ss.28-29) meant that the tribunal lacked jurisdiction to hear his race discrimination claim.

[30]In Dr G Igboaka v The Royal College of Pathologists

UKEAT/0036/09/SM

, it was found that the Claimant had a right of appeal against the GMC’s decision, where it was said to be an act of unlawful discrimination on the grounds of his race and/or age, to erase his name from the Medical Register, and the employment tribunal struck out the claim on that basis in that it lacked jurisdiction. 30. In the above two cases the central complaint was that the qualifications body had imposed a discriminatory refusal, sanction, or rejection in relation to the Claimant. The complaint of discrimination was inextricably tied up with the sanction ultimately imposed.

[31]In Dr M Uddin v GMC & Ors

UKEAT/0078/12/BA

, the ET was found to have jurisdiction to determine a complaint of discrimination against the GMC. In that case the Claimant, an individual of Bangladeshi origin, alleged that the GMC chose to initiate and pursued disciplinary proceedings against him in a way they would not in respect of people of different ethnic origin (p.795 at [4]; p.41 authorities bundle). 30. The relevant passages of the judgment are as follows (my emphasis added): - 25. Dr Vaidya made it clear that the claims which are the subject of this appeal are not claims against the GMC panels, but of “administrative and procedural actions by the GMC staff that predate” their decisions. These acts were described by Langstaff P as being “upstream” of the decisions to erase Dr Uddin's name from the Register and to make an order for his immediate suspension. […] 30. There is no right of appeal under the MA sections 40 or 38 in respect of acts complained of by Dr Uddin which led up to but did not include the erasure of his name from the Register and the imposition of immediate suspension. […] […]

[32]The EJ erred in holding that the ET had no jurisdiction to hear Dr Uddin's claims because of the availability of an appeal under the MA. No appeal was provided by MA in respect of events before the erasure of Dr Uddin's name from the Register and the order for immediate suspension on 29 October 2010. Applying the Law to the Facts 32. I therefore asked myself if the decision to place the details of Claimants dismissal from KGH, and details of what NLAG said about him, into Annex A was a decision that was an appealable decision and as such was not therefore ousted by S.120 (7) of the EqA?

[33]The Respondent asserted that the Claimant did have an alternative remedy available to him. They said he had the right to an internal review at any point from February 2013 and I noted that he did not respond to the Respondents request for comments on Annex A, this being at the Rule 4 stage of the Respondent’s procedure, albeit that this was based on advice given to the Claimant by the Medical Practitioners Society not to comment.

[34]It was never suggested to me by the Respondents that had the Claimant commented in February 2013 to the Respondent, about the contents of Annex A, that it would have resulted in Annex A being amended in some way to result in the complete removal of the derogatory comments about him that he asserted were a detriment to him, in that he asserted it put off future employers from employing him. It had similarities with the case of Uddin as in that case there was no right of appeal under the Medical Act 1983 under sections 40 or 38 in respect of the acts complained of by Dr Uddin, which led up to, but did not include, the erasure of his name from the Register and the imposition of immediate suspension. Similarly in this case the act of placing Annex A on the GMC records about the Claimant was also not appealable under the Medical Act 1983.

[35]I asked myself if, as per Ali, this opportunity to comment in February 2013 satisfied the threshold set out in Ali for something that could be characterised as a statutory appeal. Ali confirmed that what is required is that the substantive act itself be covered by a relevant appeal mechanism. Thus, in Ali, the Claimant could properly have advanced his allegation, that the refusal to register his companies and/or the removal of them from the register was discriminatory, as part of the relevant statutory appeal process.

[36]It was never suggested in this case that the Claimant had a statutory right of appeal pursuant to the Medical Act 1983 against the publication of Annex A by the Respondent, and that such an appeal would result in the removal or amendment of Annex A in some way so that the discrimination complained of could be remedied as part of the statutory appeal. 36. I therefore did not find that the opportunity to comment under Rule 4 of the Respondent’s procedures amounted to a statutory appeal. It was simply an opportunity to comment before a decision was taken at the Rule 4 stage about the publication of Annex A. This right to comment would not have addressed the alleged discriminatory impact on the Claimant, as it was never conceded by the Respondent, they may have decided not to publish it at all as a result of any comments by the Claimant.

[37]It was also suggested that because the Claimant had the’ right to rectification’ option open to him via an application to ICO that this in effect this was a right of appeal that also ousted the jurisdiction of this Tribunal. The Respondent relied on article 16 of the GDPR which provides that: The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to complete personal data completed including by means of providing a supplementary statement.33. The Claimant asserted that the right to go to ICO is not ‘proceedings in the nature of an appeal.’ The Claimant also asserted that a data subject may make a complaint to the ICO. They submitted however that would not be in the nature of an appeal, rather it is a fresh approach to a first instance decision maker. They asserted it would not amount to a review of the original decision made by the Respondent to place Annex A onto the register.

34. The Claimant went on to say that in fact the information in Annex A was not simply inaccurate and in some respects was in fact accurate because it referred to complaints and comments made about the Claimant by the KGH and NLAG which were as a matter of fact made. In effect therefore those comments made about him could not be rectified as they had been made. The Claimant also said the comments in Annex A largely consisted of opinion and inference which it would be difficult to challenge and that as a matter of data protection law they may well be entitled to retain Annex A.

35. The Claimant said that in effect the maintenance of Annex A in its current form was prejudicial and unjustified, whether the basic information was accurate or not, and in effect that the maintenance of Annex A in its current form was discriminatory against him. They referred to Lord Kerr in Michalak - paragraph 18 - where he said that section 120(7) ‘can only hold where the alternative route of appeal or review is capable of providing an equivalent means of redress.’

36. The Claimant submitted that making an application for rectification of the register would not provide an equivalent means of redress in that it would not change the maintenance of the record about the circumstances of his departure from KGH and comments made about him by NLAG 37. The final point made by the Claimant was that the right to complain to ICO does not serve the statutory purpose for which section 120/7 was designed, which was to ensure matters concerning professional qualifications were dealt with by a specialist tribunal with greater expertise in this niche area than the employment tribunal as per Khan V General Medical Council 1996. They submitted ICO's expertise in relation to the rectification of the register does not extend to the prejudicial nature of the material but only to the right, as a matter of data protection law, of the Respondent to hold it.

[38]The Claimant also relied on paragraph 22 of Michalak where Lord Kerr said that an appeal in a discrimination case must confront directly the question whether discrimination has taken place, not whether the GMC had taken a decision which was legally open to it. It was said the ICO route would not confront at all the issue of whether the maintenance of the register in the form of Annex a would deal with the allegation and question of whether it discriminated against the Claimant.

[39]I therefore asked myself whether ICO, as per Ali, was able to deal with allegations of discrimination in relation to the maintenance of the register by the Respondent. It was never suggested to me by the Respondents that ICO would be able to investigate the question of discrimination in any application by the Claimant for rectification of the register.

[42]I found that the right to complain to ICO would not amount to an appeal to ICO against the decision of the Respondent to keep the records about the Claimant on its register per se, and about things said about him by others at KGH and NLAG, but instead ICO could only look at whether any data was inaccurate. In short, I found any complaint to ICO would be about the data and its accuracy or otherwise and not the PCP’s alleged by the Claimant and its alleged discriminatory effect on him of the way the Respondent insisted on keeping Annex A on its register. 40. I found that the original decision of the Respondent to publish Annex A was an administrative decision, as was also the case in Dr M Uddin, and that was not appealable under the Medical Act 1983 to the High Court, as it was in other cases referred to above where the jurisdiction of the Tribunal was ousted. However, in this case, unlike in the Dr M Uddin case, as he was not suspended there was no further appeal mechanism open to him as there was nothing to appeal against as he had no restrictions placed on his ability to practice.

[49]As to any right of rectification via ICO I did not find that this ousted the jurisdiction of this tribunal. The right of rectification would not include a review of the contents of Annex A and whether or not this discriminated against the Claimant directly or whether it was an act of victimisation against him. It would not as per the case of Ali, be able to in the case of the contents of Annex A, ‘. if it disagrees with those conclusions, substitute its own.’

[50]The guidance on the ICO website says as follows: - What should we do about data that records a disputed opinion? It is also complex if the data in question records an opinion. Opinions are, by their very nature, subjective, and it can be difficult to conclude that the record of an opinion is inaccurate. As long as the record shows clearly that the information is an opinion and, where appropriate, whose opinion it is, it may be difficult to say that it is inaccurate and needs to be rectified. 50. As pointed out by the Claimant some of the matters factually were accurate in that these things had occurred, and the Claimant had been dismissed on the basis of such allegations and not had his contract renewed. In any event the Respondents would be able to say that the matters included in Annex A simply recorded the opinions about the Claimant held by KGH and NLAG and I found it was highly unlikely that any appeal to ICO would give the Claimant any remedy on this issue, and I found the right of redress to ICO did not amount to an appeal within the meaning of Ali.

[51]In short, the idea that an appeal to ICO was an appeal open to the Claimant missed the point of the Claimants complaint, which was that to maintain the publication of Annex A about him on this register was an act of either victimisation and/or indirect discrimination against him, in that it is said that doctors of his ethnic origin are more likely to be disciplined. These were allegations of discrimination and victimisation under the EqA, and no evidence was presented to me that the ICO right to rectification would deal with any allegations of discrimination and victimisation and I found they would not. As set out in Michalak at paragraph 22: ‘an appeal in a discrimination case must confront directly the question whether discrimination has taken place, not whether the GMC had taken a decision which was legally open to it.’ 50. I did not therefore find that any appeal to ICO would provide the Claimant with, as per Michalak, ‘...an equivalent means of redress…’. 51. As to any appeal against any decision from ICO to the First-Tier Tribunal (Information Rights) I found that the same arguments applied in favour of the Claimant, in that in any such appeal all they could do would be to look at the contents of Annex A, and that appeal would only review the original decision of ICO about the accuracy of the data itself, and would not in my judgement remove any references as to the fact of the allegations against the Claimant when he left the employment of KGH and NLAG.

[52]I therefore found that this tribunal had jurisdiction to hear this claim by the Claimant against the Respondent, and that the Claimant had no statutory right of appeal that ousted the jurisdiction of this Tribunal. The Claimants claims had no reasonable prospects of success under s.19, & s.27 of the EqA.

[53]The Respondents applied also to strike out the Claimants claim on the basis that it had no reasonable prospects of success. Rule 37(1)(a) of the ET Rules provides as follows: Striking out 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds – (a) that it is scandalous or vexatious or has no reasonable prospect of success;

[54]In Cox v Adecco and ors [2021] I.C.R 1307 (UKEAT) at [28] His Honour Judge Taylor said as follows at paragraph 28: -(1) No-one gains by truly hopeless cases being pursued to a hearing;

(2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate;

(3) If the question of whether a claim has reasonable prospect of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate;

(4) The Claimant's case must ordinarily be taken at its highest;

(5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can't decide whether a claim has reasonable prospects of success if you don't know what it is;

(6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the Claimant seeks to set out the claim;

(7) In the case of a litigant in person, the claim should not be ascertained only by requiring the Claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the Claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing;

(8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer;

(9) If the claim would have reasonable prospects of success, had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.

[55]In Mr V Mbuisa v Cygnet Healthcare Limited

UKEAT/0119/18/BA

, Her Honour Judge Eady said as follows: 19. […] The striking out of the claim amounts to the summary determination of the case. It is a draconian step that should only be taken in exceptional cases. It would be wrong to make such an order where there is a dispute on the facts that needs to be determined at trial. […]

[56]In order for me to strike out this claim I would have to conclude not just that that the Claimant’s claim is likely to fail, or that it is possible his claim will fail, but instead I would have to be satisfied there are no reasonable prospects of success (Balls v Downham Market

[2011] IRLR 217

(UKEAT) at where it was said as follows: - ‘6. Where strike out is sought or contemplated on the ground that the claim has no reasonable prospects of success, the structure of the exercise that the tribunal has to carry out is the same; the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word "no" because it shows that the test is not whether the claimant's claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.’

[57]I must be wary of conducting a ‘mini-trial’, which presents the possibility of binding the trial tribunal on preliminary factual findings: Mr A Kwele-Siakam v The Co-Operative Group Ltd

UKEAT/0039/17/LA

at [25].

[58]I also reminded myself of the case of Anyanwu and Anor v South Bank SU

[2011] UKHL 14

, at [24], where it said as follows: For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest. Against this background it is necessary to explain why on the allegations made by the appellants it would be wrong to strike out their claims against the university.

[59]It has repeatedly been reiterated in the authorities that contentious facts should properly be determined at trial, and the tribunal should be slow to strike out claims where central facts are disputed (see, for example, Ezsias v North Glamorgan NHS Trust [2007] I.C.R 126 (CA); where Lord Justice Maurice Kay said as follows: - ‘27. I too accept that there may be cases which embrace disputed facts, but which nevertheless may justify striking out on the basis of their having no reasonable prospect of success -- see ED&F Mann Liquid Products Limited v Patel

[2003] EWCA Civ 472

at paragraph 10 per Potter LJ; a commercial rather than an employment case. However, what is important is the particular nature and scope of the factual dispute in question. In the present case it is stark. 29. …….It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level. Applying the Law to the Facts

[60]In the Respondents submissions, in relation to the victimisation claim, where it asserted that the claim had no reasonable prospect of success, Counsel said that the protected acts asserted by the Claimant were as follows: -58.1 raising complaints of discrimination victimisation.

58.2 raising a collective grievance on patient safety [P.58/9]

58.3 Making a complaint to the ET in 2012 59. They asserted that it was not clear when or whom from the Respondents saw the letter [P.58/9] or who at the Respondent, decided that because of his employment tribunal claim in 2012 they would produce and then retain the information contained in Annex A. 60. In particular the letter [P.58/59], was the letter whereby a general grievance was raised by a number of doctors, including the Claimant, against Michael Woods, the Assistant Director of Operations whereby they said he was incapable of leading in a competent manner. This relates to paragraph 58.2 above.

[61]Counsel also said that it was clear that Annex A did not stop the Claimant obtaining some employment in September 2017, between March and April 2018, from May to July 2018, August 2018, and June to December 2019, and in particular he was referring to the witness statement of the Claimant.

[62]Counsel also said that making the entry at Annex A was obligatory for the Respondent and that the Respondent is obliged to disclose the fact that a registrant has been subject to an investigation in respect of their fitness to practise under section 35(B((1)(b) of the Medical Act 1983. In addition to saying the Respondent had no discretion on this issue he also said that retaining comments on the professional record to comply with the regulatory requirements is ‘appropriate’ [paragraph 21 - written submissions].

[63]He also said that the Claimant could have contributed/made comments in relation to the entry on Annex A but chose not to and did not reply to correspondence from Jackie Uppal, the Investigation Officer, on the 14 December 2012 [page 48] and on the 28 January 2013 [page 150]. This resulted, he said, in the case examiners considering matters without his input which formed the basis for Annex A.

[64]Counsel went on to say that they anticipate that the Claimant may attempt to argue that an Annex A had been retained for an unauthorised period of time [P.206] In particular he said also [P.324] that it was stated that the retention of the record was for four years if the concern was not about or could not lead to a finding of impaired fitness to practise. Counsel submitted however that this only applied where a case was closed at ‘triage’ which was not the case with the Claimant as he was subject to an investigation. He went on to say at paragraph 27 of his submissions that where cases were closed in ‘stream one’, following an investigation with no further action, that the records should be retained for 20 years after closure and that in any event in accordance with the guidance at [P.338] that the summary record has to be retained permanently.

[65]He said that the reason for the failure of the Respondent to amend Annex A was that Annex A contained information available to the case examiners relating to the position ‘as they understood it in February 2013’ and this was information the Claimant could have commented upon at that time, and he also suggested he could have sought to amend it.

[66]Counsel for the Claimant pointed out the case law which, as I have set out above, is that it is rarely appropriate to strike out discrimination claims without a full investigation of the facts, and that this Tribunal should not conduct a mini trial but should rather take the Claimants case at its highest.

[67]In relation to the victimisation claim Counsel for the Claimant asserted that there were clear protected acts and at least one arguable case of detriment which was the production maintenance and refusal to edit Annex A, which was a detriment, as it contained substantially critical comments concerning the Claimant, and that those comments were by reason of inclusion in Annex A disseminated to KGH and NLAG, and on the Claimants case they had been more widely disseminated. I took this mean that they had been disclosed to other potential employers.

[68]He also said, that prior to the comments being included they were never discussed with the Claimant. However, I found that the contents of Annex A were discussed with the Claimant before they were published and the Claimant chose, on advice, not to comment on them.

[69]Counsel for the Claimant went on to say that the key question in this case would prove to be the ‘reason why’ i.e., were the protected acts the reasons for the detriments that followed, and in this case, this being the production maintenance and refusal to edit Annex A, and that this case must be determined on the totality of the evidence.

[70]He said that the Claimant's position was that the material already raised the real question as to why the Respondent refused to change Annex A by removing it or editing it. He said that Annex A included apparent findings against the Claimant without the Claimant’s side of the case ever being taken into account.

[71]In relation to the Claimants claim for indirect discrimination he said this was ultimately factual and that the matters he complained of were clearly capable of being PCPS. He went on to say that the question of group disadvantage was very fact specific but that the Claimant would rely on the well documented difficulties that BME doctors experienced compared to white doctors, and would contend that on average BME doctors are more likely to be disadvantaged by having prejudicial information on their record, and by the dissemination of that current and prospective employers in the negative reaction to such information is more likely in the case of a BME doctor.

[72]He concluded by saying that the Claimant had suffered this disadvantage and would rely on his difficulties of obtaining lasting employment. He said that only left the question of whether the Respondent could show the PCPS were a proportionate means of achieving A legitimate aim but that the Respondent could not succeed on this point at this stage without putting forward cogent evidence as to its aims and as to proportionality and that the Respondent has yet to identify what its legitimate aims are said to be. 72. In relation to the victimisation claim Counsel said that, whilst it is not disputed that the Respondent has a statutory obligation to maintain the register as it does, its refusal to allow the Claimant to have the contents of it amended at this stage, whilst they may be guided by policy obligations upon the Respondent, cannot be said not to be fact sensitive.

[73]This Tribunal heard no evidence from the Respondents about their statutory obligations and whether there was or was not any discretion whatsoever about the maintenance of records about individual doctors.

[74]Whilst it is true that this Tribunal did not know, and nor does the Claimant know, who took the decision to maintain the register and the contents of Annex A in its current form I found that is not to say that the Claimants claim on this had no reasonable prospects of success. I found that it would not be possible to determine this issue without hearing from the Respondents witnesses as to what their policy said, how they took their decision to maintain Annex A in its current form, and why it was not possible to allow the Claimant to ask for it to be amended in some way at this stage.

[75]In addition, in determining this issue the motivation of the decision makers would need to be examined so as to determine whether there was any element of victimisation against the Claimant for bringing the claims against previous NHS trusts, or whether it was the straightforward application of their policies pursuant to their statutory obligations.

[79]I did not therefore find that the victimisation claim had no reasonable prospect of success and I therefore find that this is a matter upon which the tribunal needs to hear full evidence from the Respondents witnesses and only then can the claim be determined. I concluded that if I were to strike out this claim now, I would be conducting a mini trial. In taking the Claimants case at its highest, as I must, then it cannot be said that the Claimant has no reasonable prospect of success in his claim for victimisation.

[80]In relation to the indirect discrimination claim the PCPS are ones that can be advanced as defined in the list of issues in the bundle [page 49 to 52].

[81]In relation to 4B of the list of issues, which relates to failing to remove the advice and details of the employer’s referral from the accessible information on his professional record under rule 12, I find that the decision makers processes about this needs to be examined fully. Whilst the Respondent undoubtedly have a statutory duty to maintain its records about doctors it was not clear to me what any review mechanism was for the maintenance of those records. Whilst it was not disputed that the Claimant chose not to respond or engage with the Respondents in February 2013, when it was initially published, I did not hear evidence about whether once it had been published there was some further right to review, or not, of the records. In any event the legal issue is did this indirectly discriminate against the Claimant and if it did then the Respondents needed to give evidence about their policy on this and how it was a proportionate means of achieving a legitimate aim.

[82]Taking the Claimants case at its highest, as I must, and having concluded the evidence would need to be heard from the Respondents in relation to its defence of the maintenance of the register being a proportionate means of achieving a legitimate aim, then I could not conclude that the claim had no reasonable prospects of success.

[83]Having concluded that both the claim for victimisation and for indirect discrimination were matters upon which further and full evidence would need to be heard from the Respondents, and taking the Claimants case at its highest, I do not find that those claims have no reasonable prospects of success and I do not therefore strike out the Claimants claims. The Claimants claims were presented out of time, and it would not be just and equitable to extend time to allow them to proceed.

[84]The Respondent states that as Annex A was formulated in 2013 there is no ongoing or continuing act and that the matter was finalised in 2013. This is a reference to the Claimant settling his claim against KGH at that time. They refer to this claim being issued on the 31st of January 2023 and that as any claim or action crystallised in February 2013 that it must have been reasonably foreseeable to the Claimant that the alleged detrimental impact, he now relies upon was clear then and he could have advanced his claim at any point from this date. They say that Judge Kurrein’s statement that Annex A ‘was not an exoneration’, as a trigger for the Claimant then acting on the contents of Annex A, cannot be relied upon.

[85]The Respondent submits that though the Claimant has been unrepresented at times during this litigation he has experience of tribunal claims and the importance of time limits and that he is cognisant, by virtue of the outcome of the open preliminary hearing in January in April 2020, when time was an issue in the claims then.

[86]They say that the Claimant is well versed in the continuing act argument as he has relied upon this in previous claims and in particular Hendricks V Commissioner of Police for the Metropollis

2003 IRLR, 96

, page 225, para 102.

[87]The Respondents referred to the Court of Appeal decision in Robertson V Bexley community centre T/A Leisure Link

2003 IRLR 434

, CA, where it was recited that Employment tribunals should consider when exercising the discretion, the following principle:- ‘There is no presumption that they should do so unless they can justify failure to exercise their discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant considers it that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule.’

[88]Counsel for the Claimant pointed out that time limits will not be fatal to all of the Claimants claims. He said that the refusal to alter Annex A following the Claimants request in 2022 was only made on the 6th of September 2022 and that the Claimant approached ACAS within three months, beginning with that date of the 1 December 2022, so that part of his complaint was in time. He went on to say that in so far as the Claimant complains about the existence of Annex A on his record it is in time in any event insofar as it relates to the period on and after the 2nd of September 2022. He said therefore that the question of time was only applicable to the initial creation of Annex A on or around the 15th of February 2013 up to its maintenance on the 1st of September 2022.

[91]I found that part of the Claimants claim in relation to the maintenance of the register was in time, this being the maintenance of the register at least three months less one day backwards in time from the date that the Claimant first contacted ACAS, and as he contacted ACAS on the 1 December 2022 three months less on day prior to that was the 2 September 2022.

[92]The remaining issue therefore was whether or not the maintenance of the record from when it was first created on the 15th of February 2013 up to the 2nd of September 2022 was a continuing act of discrimination by the Respondent? In cases like these, of discrimination, whether or not something is a continuing act or not is often best determined as part of the final hearing of the claim after all evidence has been heard.

[93]During oral submissions Counsel for the Claimant referred to the fact that there were review periods in relation to the maintenance of the record by the Respondent and so in that sense the decision to maintain Annex A in its current form would be reviewed at intervals. It seemed to me therefore that it was at least arguable that instead of this being a one-off act of discrimination when the decision was made to publish Annex A in 2013, that if, at intervals, decisions were made to maintain it then each time such a decision was made another act of potential discrimination then took place. This would be very relevant as to whether it was a continuing act or not and whether such review decisions amounted to a continuing discriminatory state of affairs and I found this was a matter that required evidence from the Respondents. 93. Taking the Claimants case at its highest, as I must, on the issue of limitation, there is an arguable case that this was a continuing act of discrimination against the Claimant. In any event even if it was not then the Claimant will ask the tribunal to exercise its just and equitable jurisdiction in his favour to extend time for the bringing of this claim from the date of the last discriminatory act which in my judgement may be the last time that the records were reviewed. I was not given any evidence during the hearing about the last time that the maintenance of this record was reviewed by the Respondents. I therefore concluded that the issue of whether this was a continuing act, or a one-off act of discrimination was evidence sensitive and taking the Claimants case at its highest I could not find that this claim had no reasonable prospects of success in relation to time limits alone.

[94]I make no determination as to whether or not these claims are in time or out of time and this is a matter to be decided by the Tribunal at the final hearing of this matter. Deposit Order

[95]I turn now to the issue of the application against the Claimant for a deposit order.

[96]Rule 39 of the ET Rules states that: - Deposit orders 39.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal's reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a)the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b)the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. […] General Principles

[97]In Hemdan v Ishmail and anor

[2017] ICR 486

, EAT, it was said that the purpose is not to “make it difficult to access justice or to effect a strike out through the back door” (at [11]).

[98]In Sharma v New College Nottingham EAT 0287/11, the tribunal was held to have erred in making a deposit order, even though the contemporaneous documentation was at odds with the Claimant’s case.

[99]In Javed v Blackpool Teaching Hospitals NHS Foundation Trust EAT 0135/17, Mrs Justice Laing said a summary assessment of contemporaneous documents in discrimination claims where inferences need to be drawn is difficult and she said at paragraph 40 as follows: - [40] […] An undisputed document could, I have no doubt, provide evidence wholly inconsistent with, or contradicting, a primary factual allegation made by a Claimant, so, for example, if a Claimant sought to establish that he was in Bristol on a particular date and not in Hull and there were several documents signed by him or photographs of him in Hull on that particular date, contemporaneous documents could show that the primary fact which he sought to establish was not capable of being established. It is considerably less easy to see, however, how a document could contradict the inference which the Claimant seeks to persuade an employment tribunal to draw when he makes an allegation of race discrimination.

[100]Given the costs consequences laid out by r.39(5)(a) of the ET Rules consequent upon a deposit order being made, which means that if the Claimant fails in his claims he faces a much higher risk of an adverse costs order against him, and the resulting draconian effects on a Claimant’s rights of access to justice, the tribunal must be satisfied that there is a “proper basis” for making one in the first place, as re-stated in Sami v Avellan

[2022] EAT 72

at [26].

[102]Even if a tribunal concludes that a claim or allegation has little reasonable prospect of success, it does not follow that a deposit order must be made, because r.39(1) says that an order “may” be made in those circumstances. In Hemdan (above) at [15], it was noted that regard should also be had to the following factors:(i) The need for case management and for parties to focus on the real issues in the case;

(ii) The extent to which costs are likely to be saved; and

(iii) The extent to which the case is likely to be allocated a fair share of limited tribunal resources.

[103]I must also consider the rights of the paying party in accessing justice, with particular consideration as to their means and ability to pay. However, in this case there was no issue with the Claimants ability to pay a deposit order as it was confirmed to me by Counsel for the Claimant, he could pay a £1000.00 deposit order on each claim of victimisation and indirect discrimination.101. Where in Javed it says that ‘..It is considerably less easy to see, however, how a document could contradict the inference which the Claimant seeks to persuade an employment tribunal to draw when he makes an allegation of race discrimination,’ I asked myself whether the nature of Annex A and the statutory obligation of the Respondent to maintain its register meant that a Tribunal could not draw an inference that Annex A in its current form, and the maintenance of it, was either an act of victimisation, or that it was indirectly discriminatory against the Claimant, and that the prospect of a Tribunal drawing such any such inference had ‘little prospect of success.’?

102. I did not find that the prospect of a Tribunal drawing such an inference that the maintenance of Annex A was had ‘little prospect of success.’ There was some prospect of success on this and something more than ‘little prospect of success.’ This issue was dependent on the evidence of the Respondent as to why they would not amend the register when requested to by the Claimant, and whether they had any discretion at all on this. They also needed to set out why maintaining this record for as long as they have done for over 10 years was a proportionate means of achieving a legitimate aim and again this was fact sensitive on which we needed to hear evidence from the Respondent. 102. I also asked myself if the Claimant had ‘little prospect of success’ in overcoming any arguments on limitation. Part of his claim at least is in time. The rest of it depends on how often the register was reviewed, and also depends on the evidence of the Claimant in not taking action earlier than he did, and which, to some extent, depends on his evidence on his understanding of limitation rules throughout the period of time of the record being maintained, and what advice he received on limitation throughout that period, if at all, until he contacted ACAS. 103. On the basis of Sharma, I reminded myself that a tribunal should be slow to make a deposit order where there are factual issues in dispute. 103. I therefore determined that the issues on limitation were fact sensitive, and that this needed to be determined by the Tribunal hearing all the evidence at the final hearing.

Conclusion

[104]I therefore find that it cannot be said that that these claims have no reasonable prospects of success and the application by the Respondent for a strike out of the Claimants claims is therefore dismissed.

[105]I also find that it cannot be said that these claims have little prospect of success and therefore I do not make a deposit order on these claims.

[1]Dr Adams brings claims of indirect discrimination and victimisation against the General Medical Council (“GMC”).

[2]The GMC is the regulator of doctors in the UK. Its statutory purpose, governance and responsibilities are prescribed by the Medical Act 1983. Amongst other things, the GMC investigates concerns regarding doctors’ conduct and performance. Its procedures in that regard are laid down in the General Medical Council (Fitness to Practice) Rules 2004 (“the FTP Rules”) which have been approved by Order of the Privy Council (SI 2004 / 2608).

[3]The GMC is independent of government and the medical profession, and accountable to Parliament. It is a registered charity and is regulated by the Professional Standards Authority, which scrutinises and oversees its work, together with other health and social care professional bodies in the UK. Dr Adams does not challenge the GMC’s evidence that it has never failed to meet any of the PSA’s standards for good regulation.

[4]Dr Adams’ claims against the GMC are brought pursuant to section 53 of the Equality Act 2010 (“EqA”) which applies to qualification bodies.

[5]Section 53(2) of the EqA 2010 provides, “A qualifications body(a) (A) must not discriminate against a person

(b) (B) upon whom A has conferred a relevant qualification…

[6]Section 53(5) of the EqA 2010 provides, “A qualifications body(a) (A) must not victimise a person

(b) (B) upon whom A has conferred a relevant qualification…

[7]Dr Adams is a British citizen of Afro-Caribbean heritage. He qualified as a doctor in 1988 from St. George’s Medical School, University of London. In September 2004 he joined the GMC’s Specialist Register in Emergency Medicine, having obtained his Certificate of Completion of Training in 1999. He continues to be registered with the GMC but is no longer licenced to practise. He says that he decided to relinquish his licence to practise with effect from March 2020 because he had not been able to keep up to date with the requirements for a successful re-validation. In September 2020 he enrolled in the Master’s of Science in Psychology online programme at the University of Derby with a view to becoming registered with the Health and Care Professions Council as a Counselling Psychologist, again something we shall come back to. There is reference in the Hearing Bundle to Dr Adams having also studied for a Master’s in Law.

[8]We heard evidence from Dr Adams and on behalf of the GMC from:-  Joanna Farrell, Assistant Direct of Investigations within the Fitness to Practise Directorate;  Courtney Brucato, Information Governance Manager and Archivist within the Information Policy Team; and  Michael Keegan, Senior Case Examiner.

[9]The Respondent was proposing to call Claire Light, Head of Equality, Diversity and Inclusion (“ED&I”) at the GMC to give evidence. A witness statement had been served for her. However, on the basis that Mr Varnam confirmed he would not be asking any questions of Ms Light, we were able to excuse her attendance at Tribunal. Her evidence as to the GMC’s approach to ED&I, both as an employer and regulator is therefore unchallenged, as indeed was the other witnesses’ evidence regarding ED&I. Ms Light states that ED&I is embedded within the GMC’s corporate strategy and that it utilises its data to help inform its understanding of the impact of regulation on different groups. The GMC also commissions research and analysis to provide wider insight on these issues. Later in this judgment, we refer to a 2014 report by Plymouth University’s Peninsula Schools of Medicine & Dentistry entitled ‘Review of decisionmaking in the General Medical Council’s Fitness to Practise procedures’: the “Plymouth Review” led to changes in guidance and practices within the Fitness to Practise Directorate. We accept Ms Light’s evidence that the GMC strives to understand the impact of its regulatory functions and also, more broadly, any inequalities experienced by the profession within their working, educational and training environments, and that when developing strategies, policies, guidance and procedures the GMC considers ED&I by undertaking equality impact assessments. It also monitors the representation of doctors within the fitness to practise process and has a separate team which audits the GMC's fitness to practise work independently. Ms Farrell, Ms Brucato and Mr Keegan’s evidence corroborates Ms Light’s evidence that the GMC takes a robust approach to training on ED&I, starting with induction. Case examiners are part of this training regime.

[10]In his closing written submissions, Mr Hare highlights what he says are a number of aspects of Dr Adams’ case and the way in which it has been advanced which lack credibility. We identify below certain difficulties in Dr Adams’ case, certain of which led him to withdraw what we would describe as the central plank of his claim, namely that information held by the GMC has been made available or disclosed to prospective employers of his. Whilst we have not specifically addressed Dr Adams’ credibility, we place on record that we have been greatly assisted in this matter by Ms Farrell and Mr Keegan’s evidence. They brought particular clarity to the issues and we were struck by their insights, their thoughtful and measured approach, and their ability to frame their evidence within the broader policy and regulatory context.

[11]There was an agreed electronic Bundle comprising eight sections, A – H. Any page references in the course of this Judgment correspond to the Bundle. We were additionally provided with 33 pages of additional documents, a 2022 BMA report entitled ‘Racism in medicine’, and extracts from the Medical Act 1993 in their amended and unamended form.

The Law

[12]Mr Hare has set out the relevant law in some detail in his written submissions. Accordingly, we do not repeat the law here, save to note that indirect discrimination is defined in section 19 of the EqA 2010 as follows:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are—  …  race; Victimisation is defined in section 27 of the EqA 2010 as follows: (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[13]Mr Hare has also helpfully set out relevant provisions of the Medical Act 1983 and of the FTP Rules. He highlights that the statutory over-arching objective of the GMC is the protection of the public (section 1 of 1983 Act). The GMC does not have statutory duties towards doctors in that capacity.

[14]Provided that a complaint or referral to the GMC is within the GMC’s remit and that the Registrar does not consider it to be vexatious, it will be referred in the first instance to a medical and a lay case examiner for their consideration. The steps then available to them are set out in Rule 8(2) of the FTP Rules, as set out more fully in Mr Hare’s written submissions. Introduction

[15]Dr Adams was dismissed from his employment as a Consultant in Emergency Medicine at Kettering General Hospital NHS Foundation Trust (“KGH”) on 9 February 2012. He appealed against his dismissal but his appeal was not upheld. On 12 May 2012, the Medical Staffing Manager at KGH wrote to the GMC notifying it of Dr Adams’ dismissal. They wrote, “In view of the serious allegations raised and the fact Dr Adams was dismissed from his role at the Trust it was felt appropriate to refer this matter to the GMC for further consideration/investigation.” For convenience we shall refer to this email from KGH as the “Referral”. Whether or not it was a referral as that (undefined) term is generally understood by the GMC, is not material in terms of our decision. Pursuant to section 35B(1)(b) of the Medical Act 1983, the GMC was required to notify the Referral to Dr Adams’ new employer, North Lincolnshire and Goole Hospitals NHS Foundation Trust (“NLAG”), which it duly did on 12 September 2012. Dr Adams was made aware this would happen. NLAG subsequently provided certain information about Dr Adams which, together with the information already provided by KGH, was considered by the appointed case examiners, Professor Taylor and Mr Davis (the “Case Examiners”). Their decision was that the Referral should not proceed further. They did not, as Dr Adams asserts in his Amended Particulars of Claim, determine that the information that had been provided to the GMC by KGH and NLAG was vexatious. The Case Examiners’ decision, as notified to Dr Adams and recorded on ‘Siebel’, the GMC’s electronic storage system, was “to conclude the matter with no further action”. There is an issue between the parties as to whether the case was concluded with or without advice being given to Dr Adams. In recording the reasons for their decision ( which are set out in a document referred to as “Annex A” appended to the GMC’s letter to Dr Adams dated 15 February 2013 – pages B312 and B313), the Case Examiners made certain observations to which Dr Adams objects and which he has unsuccessfully sought to have removed from his GMC record.

[16]Dr Adams brought an Employment Tribunal claim against KGH in May 2012 complaining of unfair dismissal, race discrimination and victimisation. The claim was settled by agreement.

[17]In the years following his dismissal from KGH, Dr Adams says that he experienced numerous setbacks in his career. We summarise them briefly as follows:-a. In 2012, he was interviewed for, but not appointed to, a Consultant post at the Pilgrim Hospital in Boston.

b. In 2014, notwithstanding he was the only candidate for the role and had been working as a Locum Consultant at the Hospital for six months, he was unsuccessful in his application for a Consultant post at Lincoln County Hospital.

c. In 2015, he was unsuccessful in his application for a Consultant post at Northwick Park Hospital, where he had trained as a Registrar.

d. In the same year, he was unsuccessful following an interview at York Training Hospital for a Consultant post in Emergency Medicine, notwithstanding he says he had been encouraged by the Hospital’s Clinical Director to apply for the role.

e. In 2016, he was unsuccessful for a Consultant post at Hinchingbrooke Hospital despite being the sole candidate and having had a satisfactory appraisal just ten days earlier with the Deputy Medical Director of Lincoln County Hospital.

f. In 2017, he was put forward for a Locum position at Peterborough Hospital but was unsuccessful and two months later received no response from the Hospital when he applied for a substantive post. We understand that Dr Adams had sued Peterborough Hospital in 2003.

g. Later in 2017, he was put forward for a Locum position at Hinchingbrooke Hospital but claims that the Emergency Medicine Consultants at Peterborough Hospital, which is part of the same Trust, blocked his appointment.

h. In January 2018, Kings Mill Hospital stopped booking Dr Adams for shifts, apparently without explanation.

i. In April 2018, he received no response to his further application for a Consultant post in Emergency Medicine at Hinchingbrooke Hospital, notwithstanding he had worked there for two months as an Agency Locum Consultant, apparently without issue.

j. Later in 2018, Dr Adams’ CV did not attract interest from Consultants at the Lister Hospital in Hertfordshire, notwithstanding the Hospital was said by his Agency to be short staffed and desperate to recruit.

k. He alleges that the following month his application for a 12 month fixed term post at Stoke Mandeville Hospital, with the potential to become substantive, was unexpectedly limited to 3 months with the possibility of only a further 3 month extension.

[18]Dr Adams states that he became “curious” in late 2019 as to whether his professional record at the GMC had been shared with anyone, as a possible explanation for his difficulties in securing positions as a Consultant. However, on his own account, as he sets out in some detail in his witness statement and as also documented in a Judgment of Employment Judge Kurrein dated 10 April 2020, a number of the hospitals in question explained at the time why he had been unsuccessful in his application: none of them made reference to his GMC record or to having been provided with information about him from the GMC. Having first submitted a Data Subject Access Request to the GMC in September 2019, Dr Adams made further enquiries of the GMC on 20 November 2019, asking for information about who had accessed his ‘non-public personal data’ (page C7). The GMC treated his enquiry as an Article 15 GDPR Right of Access Request. Sadie Jones, an Information Access Officer with the GMC wrote to him on 2 December 2019, “I have looked at the information that we hold on record and have not been able to identify that we have disclosed your non-public personal data to a third party.” (page C8) In order to assuage any concerns he might have had, Ms Jones provided Dr Adams with a copy of his online register profile so that he could see for himself the limited information that was publicly available about him.

[19]Dr Adams states that he had previously made a number of Data Subject Access Requests in June and July 2018 to various Hospitals and NHS Trusts. It may reasonably be assumed that these had not yielded any evidence that non-public personal data of his held by the GMC had been disclosed to any current or prospective employer, save to NLAG in 2012 as detailed above.

[20]Against that background, it is unclear to us on what basis Dr Adams might have remained curious, or suspicious, after December 2019 that the Respondent was, or might be, in the practice of making available his nonpublic personal data to third parties, specifically to prospective employers. The Respondent’s position in the matter, namely as communicated to Dr Adams by Ms Jones, has been reiterated throughout these proceedings, including in quite some detail in the GMC’s witness statements. Nevertheless, Dr Adams pursued the matter through to final hearing. In his closing submissions Mr Varnam acknowledged on behalf of Dr Adams, as we think he was bound to, that the evidence did not establish that the Respondent had disclosed the contents of Annex A (or, it seems to us, any other information about Dr Adams) to any prospective employer of his.

[21]It thereby having been accepted that the PCP identified in paragraph7.2.1 of the List of Issues had not been established, Dr Adams’ claim of indirect discrimination proceeds with reference to a single claimed PCP, recorded in paragraph

7.2.2 of the List of Issues as being an alleged provision, criterion or practice of, “Failing to remove the advice and details of the Employer Referral from the accessible information on his Professional Record under Rule 12”. The reference to Rule 12 is to Rule 12 of the FTP Rules. The List of Issues

[22]On the third day of the final hearing, towards the end of Mr Keegan’s evidence, an issue arose as to the ambit of the claim, namely whether the victimisation claim includes a complaint that the Case Examiners’ decision to conclude the matter with no further action (or more accurately, the inclusion of certain comments within Annex A, including reiterating the GMC’s guidance to doctors in paragraphs 46 and 47 of Good Medical Practice), was an alleged detrimental act within §.27(1) and 53(5)(c) of the EqA 2010. We had proceeded, and had stated a number of times in the course of the hearing without being corrected in the matter, that we were proceeding on the understanding that the two claimed detriments recorded in the List of Issues did not extend to the Case Examiners’ decision itself (including the reasons for their decision), even if Dr Adams fundamentally disagreed with certain comments within their reasons. However, in the course of Mr Keegan’s evidence, Mr Varnam clarified that the victimisation claim does extend to the contents of Annex A. He relies in that regard upon paragraphs 59 – 62 of the Amended Particulars of Claim, paragraph 19.1 of Employment Judge L Brown’s Judgment of 2 February 2024 (following a Public Preliminary Hearing on 15 January 2024 to determine a jurisdiction issue) and a Skeleton Argument submitted at that hearing by previous Counsel instructed for the GMC, in which it had been contended on behalf of the GMC that ‘any claim/action in relation to the content of Annex A crystallised in February 2013 when it was disclosed to the Claimant’. Mr Varnam says this confirms that the GMC understood the complaint to be about the content of Annex A and not simply what was done with it.

[23]If Mr Hare had been labouring under the same understanding as the Tribunal, he did not actively resist Mr Varnam’s submissions in closing, but instead sought to highlight that even if there is a complaint regarding the content of Annex A, the main focus of the claim has been on how Dr Adams’ career prospects are alleged to have been damaged by the information in Annex A being disclosed to prospective employers. As we have observed already, that was undoubtedly the central plank of Dr Adam’s claim until it was conceded in closing.

[24]Regrettably, the List of Issues is not drafted as clearly as it might have been. It was originally filed as an agreed document for a case management preliminary hearing before Employment Judge Ord on 1 September 2023. The first of the two claimed detriments was stated to be: “That the Respondent published and retained prejudicial comments on the Claimant’s Professional Record since 2013…” This formulation reflects the wording of the Amended Particulars of Claim, seemingly drafted with legal input, in which the detriment is pleaded at paragraph 5.1 in the following terms: “Ongoing publication on the Claimant’s professional record of that Advice, prejudicial comments and details of the employer referral in Annex A, which are accessible to prospective employers and regulators for 20 years.” (page A31) In that context and pleaded in those terms, we understood the detriment in the List of Issues to relate to the alleged ongoing availability to the public of the details of the Referral, including as set out in Annex A. We remain of the view that this is the ordinary and natural meaning of paragraph 5.1 of the Amended Particulars of Claim. Our understanding in this regard is reinforced, or at least compounded by the List of Issues having been structured with reference to two rather than three claimed detriments.

[25]In the course of her judgment on the jurisdiction issue, Employment Judge L Brown had referred to three detriments, namely:-a. the creation of Annex A;

b. its maintenance as a record; and

c. the GMC’s refusal to amend it on 6 September 2022. Unfortunately, the List of Issues was not updated to reflect this clarification or formulation.

[26]Be that as it may, and notwithstanding as we shall return to, the List of Issues has bedevilled the proceedings in other ways, the claims are ultimately to be found in the Amended Particulars of Claim rather than in the List of Issues. Notwithstanding the pleading in paragraph 5.1 of the Amended Particulars of Claim, the amendment did not remove what were originally paragraphs 34 – 37 of the Particulars of Claim (now paragraphs 59 to 62 of the Amended Particulars of Claim). Although the detriments are pleaded more narrowly in paragraph 5.1 of the Amended Particulars of Claim, and putting aside for a moment that the Case Examiners’ alleged victimisation of Dr Adams is seemingly not addressed in his witness statement, we are satisfied by reason of paragraphs 59 to 62 of the Amended Particulars of Claim that there is an extant complaint in respect of the content of Annex A and accordingly that the victimisation claim is not limited to what was done with the information in Annex A after it had been created and communicated to Dr Adams on 15 February 2013.

[27]We shall deal with the victimisation complaints first, before going on to consider Dr Adams’ claim that he was indirectly discriminated against . Victimisation – s.27 of the Equality Act 2010

[28]The Respondent accepts that Dr Adams did the two protected acts relied upon by him, namely in 2011 he made complaints to KGH of race discrimination and victimisation (as well as being party to a collective grievance) and in May 2012 he presented a claim to the Employment Tribunals complaining amongst other things that KGH had racially discriminated against him and victimised him.

[29]Whilst we do not recall being taken to evidence that the Case Examiners were aware before they made their decision (and provided their reasons for their decision) that Dr Adams had done the second protected act – the only potential evidence in that regard to our knowledge being a later telephone record from 1 March 2003 when Dr Chilton of KGH had contacted Ms Uppal of the GMC to say that they were “going to Tribunal soon about Dr Adams unfair dismissal claim against them” – Mr Hare has conceded on behalf of the GMC that the Case Examiners were aware of both protected acts at the time they made their decision, a concession we obviously do not go behind.

[30]We shall deal with the detriments on the basis of how they were formulated by Employment Judge L Brown.

[31]On the basis that a “detriment” means “putting under a disadvantage” and, in the employment context, that a detriment will exist “if a reasonable worker would or might take the view that the action of the employer was in all the circumstances to his detriment” (Ministry of Defence v Jeremiah

[1980] ICR 13

per Brandon LJ and Bright LJ respectively), we are inclined to the view that the first of the three detriments could arguably be regarded as being to a registered practitioner’s detriment. Whilst Dr Adam’s was plainly not disadvantaged in so far as any concerns notified by KGH or NLAG were concluded with no further action, in our judgement a practitioner might consider that being reminded of their professional obligations in the context of a complaint or referral is to their detriment, regardless of whether or not such reminder, or ‘reiteration’, is issued as advice within the fitness to practise process. We have come to this view notwithstanding, as we shall return to, the GMC itself does not regard advice, let alone a reminder, as an admonition. The issue is not clear cut, since most, if not all, professionals, including the judiciary, are subject to professional review and continuing professional development, including regular reminders of the standards of professional conduct expected of them. However, as we shall come to in a moment, Mr Keegan told the Tribunal that he understood why Dr Adams perceives Annex A to include findings of fact. In which case, we think a reasonable practitioner might equally perceive Annex A in that way and accordingly might regard it as being to their detriment in circumstances where the provisions of Good Medical Practice are being reiterated in the context of an investigation rather than, for example in the more neutral setting of a training event or as part of a routine communication to practitioners.

[32]By contrast, and as we shall explore further in the context of the claim of indirect discrimination, we do not consider that Dr Adams was put at a disadvantage because Annex A was maintained as a record or because the GMC refused to amend it in 2022 at his request. In our judgement, even though they might disagree with the case examiners’ reasoning in their case, a reasonable practitioner would accept both that it is appropriate, indeed necessary, for the GMC to maintain complete and accurate records of case examiners’ decisions, and that they are not disadvantaged by being denied the ability to require changes to be made to the case examiners’ reasons at a later date in circumstances where they were afforded an opportunity to make representations at the time, but failed to avail themselves of that opportunity.

[33]In case we are wrong, we have gone on to consider whether Dr Adams was subjected to the claimed detriments because he did the protected acts. We shall address the detriments in turn. Annex A

[34]Mr Varnam submits that there is sufficient evidence to shift the burden to the Respondent pursuant to s.136 of EqA 2010. In paragraph 20 of his written submissions he identifies three specific matters that he says support an adverse inference, namely: 34.1. Comments of the Case Examiners which suggest they made findings of fact, notwithstanding this was not within their remit; 34.2. The unusual wording of Annex A; and 34.3. The GMC’s failure to call the Case Examiners to give evidence and indeed to identify them by name.

[35]As Dr Adams seeks to rely upon the contents of Annex A to support the requisite inference, we must necessarily address the offending passages in this judgment even though this may result in information that hitherto has not been publicly available now being placed in the public domain. However, given Dr Adams’ concerns in the matter, we have decided against setting out the offending passages in full: for the avoidance of doubt, they are the seventh, eighth, eleventh, twelfth and thirteenth paragraphs of Annex A.

[36]We do not agree that the Case Examiners made findings of fact, even if that is how their comments are perceived by Dr Adams and notwithstanding Mr Keegan understood why he perceives them in that way. In the first of the five paragraphs objected to, the Case Examiners summarised certain alleged behaviours that had been identified by KGH within an investigation report: the Case Examiners’ observations in the matter are expressed in terms that Dr Adams was “seemingly” unaware of how his behaviour could be perceived by others. In the second of the five paragraphs objected to the Case Examiners again used the word “seems” to indicate their understanding as to the reasons given by KGH for dismissing Dr Adams. In our judgement, in neither paragraph do they offer a view as to whether the allegations were well founded. In the third of the five paragraphs objected to the Case Examiners state, “the repetition of very similar problems in his current employment following his recent dismissal suggests he has not taken steps to address the criticisms of his behaviour and that there has been no mitigation or insight.” In the overall context, we read “suggests” as “could indicate”. We agree with Mr Hare that the word “suggests” extends to the Case Examiners’ further comments about there being no mitigation or insight. In the fourth of the five paragraphs objected to the Case Examiners refer twice to it being “said” in relation to Dr Adams, namely they are recording what was reported in relation to him rather than expressing their own personal views or conclusions in the matter. Finally, in the last of the five paragraphs objected to they again use the expression “suggests” in the context of potential concerns. They go on to refer to the “possibility” (but in our judgement, no more than the possibility) that Dr Adams had failed to recognise the impact of his actions and alter his behaviour. In our judgement it was on the basis of that possibility that the guidance in paragraphs 46 and 47 of Good Medical Practice was reiterated to Dr Adams.

[37]Mr Keegan is an experienced Senior Case Examiner. His unchallenged evidence is that he has completed approximately 4,000 decisions since 2011. He explained in detail why he does not read the decision in the way that is contended for by Dr Adams. We are confident in his explanation and why he says other case examiners would not construe the Case Examiners’ decision as involving findings of fact. We are satisfied that it is clearly understood by case examiners that theirs is not a fact finding role, something that is instead reserved to the Medical Practitioners Tribunal on referral from the Investigation Committee. The GMC’s 2016 guidance for decision makers on giving written advice at the end of fitness to practise investigations is explicit: “Advice should provide guidance for future practice and is not an admonition in relation to past actions.”

[38]Mr Keegan acknowledged that he might not have expressed himself in the matter quite as the Case Examiners did, but case examiners inevitably have their own particular style and turns of expression. Moreover, as Mr Keegan pointed out, he was being asked to comment upon a decision from nearly ten years ago: over the intervening years practices have continued to evolve within the Directorate and revised templates are in place to document decisions by case examiners.

[39]Mr Varnam submits that the wording of Annex A is unusual. Although we were not provided with other decisions for comparison purposes, the wording does not obviously strike us as unusual. We refer again to our comments in paragraph 36 above.

[40]Annex A makes no reference to Dr Adams’ protected acts or to him raising concerns more generally with KGH or NLAG. Accordingly, there is no indication on the face of Annex A that the Case Examiners even had those facts in mind when they reached their decision and drafted their reasons, even if information pertaining to the protected acts may have been contained within the 273 pages of documents submitted by KGH.

[41]We did not, of course, hear from the Case Examiners, both of whom have since retired. In that sense they are unavailable. But in any event it is difficult to see what additional evidence they might have provided in the matter over and above that which has been gleaned from the case file on Siebel, particularly given that eleven or more years have passed since they made their decision in a case which, although of great importance to Dr Adams, has no obvious distinguishing features to it. Whilst the Case Examiners might of course have been asked about their understanding of and commitment to ED&I, it is not an issue in respect of which any of the Respondent’s witnesses were challenged. In any event, we agree with Mr Hare, having regard to Lord Leggatt’s comments in Efobi v Royal Mail Group Limited [2021] UK SC33, that the significance of the Case Examiners’ evidence has to be seen in the overall context of the case as a whole, particularly before Dr Adams withdrew the central plank of his claim. Dr Adams has provisionally assessed the value of his claim, excluding stigma damages, at just under £1.7 million. His claim for compensation is pursued in very large part with reference to losses he attributes to the contents of Annex A having been made available to prospective employers, something he now accepts cannot be established. His claim in that respect is no longer pursued and with it much of the value of his claim has fallen away. In our judgement it is entirely understandable that the GMC has focused its attention and resources on that aspect of his claim, not least in circumstances where Dr Adams’ pleaded case in relation to the Case Examiners is expressed in terms that they “might” have victimised him and it was “possible” they were seeking to deter him from making further complaints (see paragraphs 61 and 62 respectively of the Amended Particulars of Claim). In his April 2020 Judgment, Employment Judge Kurrein said that many of the claims then being pursued by Adams were “based on nothing more than mere assertion”. Whilst we might not express the matter in the same terms, the pleading is certainly not indicative of a claimant who is confident in his assertion that he has been victimised.

[42]We should add that there is no evidence to suggest that the GMC withheld the Case Examiners’ names other than in accordance with its normal practices around the processing of personal data. Certainly, we were not referred to any correspondence in which Dr Adams had requested the names or personal characteristics of the Case Examiners. We attach no significance to the fact their names only emerged in the course of cross examination.

[43]We have noted already that Dr Adams does not set out in his witness statement why he believes the Case Examiners victimised him. Mr Varnam rightly points out that witness statements are for matters of evidence rather than a platform for submissions. Nevertheless, given that Dr Adams identifies certain alleged “victimising” acts by third parties in his witness statement and indeed advances various submissions and arguments, it is not entirely beside the point that he does not expand upon or indeed even repeat his pleaded case in his witness statement.

[44]In our judgement there would need to be something more in order for us to conclude that there are facts from which we could conclude, in the absence of an adequate explanation, that the ‘advice’ and disputed comments in Annex A were because Dr Adams did protected acts, not least in circumstances where those protected acts were directed not at the GMC but at a third party and where the GMC’s overarching objective is the protection of the public. Mr Keegan has drawn the Tribunal’s attention to paragraphs 7, 9 and 10 of Good Medical Practice in which the GMC actively encourages doctors to raise concerns. Indeed, paragraph 7 of Good Medical Practice states that all doctors have a duty to raise concerns where they believe that patient safety or care is being compromised. Given that duty, the GMC’s statutory overarching remit already referred to, and its robust approach to ED&I, Dr Adams has offered no explanation or theory as to why the Case Examiners may both have taken against him or at least reacted at some subconscious level to the fact that he had done protected acts within his workplace. Dr Adams has not challenged Ms Light’s evidence regarding the GMC’s approach to ED&I. Nor did he challenge Ms Farrell, Ms Brucato and Mr Keegan’s evidence regarding their extensive training and awareness in the matter. There is an abundance of evidence that the GMC takes its responsibilities particularly seriously and has done for many years, which begs the question why, within such a culture and environment two Case Examiners nevertheless victimised Dr Adams.

[45]It is also relevant, we think, that Dr Adams has not satisfactorily explained why he came to believe that he had been victimised by the Case Examiners. All relevant facts were before him in 2013 when he received the Case Examiners’ decision. He suggests that he was influenced by comments made by Employment Judge Kurrein at a hearing in January 2020 following which his 2018 claim against KGH, NLAG and Lincoln County Hospital was struck out as having no reasonable prospect of success. The Judge apparently noted that the 2013 decision was “not an exoneration by the GMC”. Firstly, that much was apparent at the time on the face of the Case Examiners’ decision, the Case Examiners having specifically stated that their task was simply to decide whether the evidence demonstrated a realistic prospect of establishing that Dr Adams’ fitness to practise was sufficiently impaired to justify action on registration. Dr Adams is an articulate, highly intelligent individual and we think it unlikely that he would have read Annex A in 2013 as an exoneration. In any event, if he is saying that he believed at the time that he had been exonerated, that sits uneasily with his various contentions in these proceedings that the Case Examiners’ comments in Annex A portray him in a bad light. If he thinks their comments portray him in a bad light he must have thought the same in 2013. We are unpersuaded by his explanation that a single alleged comment by Employment Judge Kurrein in January 2020 led to a fundamental reappraisal by him of the Case Examiners’ decision and comments. Indeed, we note in this regard that when Dr Adams wrote to the GMC two years later on 24 January 2022 (page C10) to request that his record be amended, he made no reference to the Case Examiners’ comments now objected to or that he had come to understand that the 2013 decision was not an exoneration. Instead, he was seeking to have KGH and NLAG’s allegations expunged from his record. That does not reflect the case he now pursues within these proceedings. If, as he claims, Employment Judge Kurrein’s alleged comment in January 2020 generated concerns in his mind that he had been victimised by the Case Examiners, he did not give expression to those concerns on 24 January 2022. His focus only seems to have begun to shift to the Case Examiners in summer 2022, when of course he had reached the end of the road in relation to KGH and NLAG by virtue of his claim against them having been struck out.

[46]Dr Adams wrote to the GMC on 5 August 2022 to say that he was trying to better understand their decision making procedures. Even then, he said that his interest in the matter was “an academic one”, as professional registration was his dissertation topic for his LLM (page C20). Subsequently, on 2 September 2022 he wrote, “… because of the information that I have provided, it is for the GMC to put on record just reasons for the decision to close the case and amend its comments on my conduct and attitude.” Having therefore had over two and a half years in which to reflect on Employment Judge Kurrein’s alleged comment, there is still no suggestion there that the Case Examiners had victimised him, including by seeking to deter him from raising further concerns. Instead, Dr Adams was asking for the reasons for the Case Examiners’ decision to be revisited in light of the extensive information he was then putting forward about his case some nine years after he had first been afforded, but had failed to take up, an opportunity to comment on concerns that had been expressed by KGH and NLAG.

[47]For all these reasons, we consider there is no proper basis for us to infer that the Case Examiners’ decision or their reasons for it, including their ‘reiteration’ of paragraphs 46 and 47 of Good Medical Practice was because Dr Adams had done protected acts. His claim that he was victimised in that regard is not well founded. The maintenance of the decision in Annex A on Siebel

[48]In paragraph 22 of his written submissions, Mr Varnam concedes that if there is no victimisation claim in respect of the content of Annex A, the claim in respect of its publication / retention on Siebel is unlikely to succeed. In his oral submissions he accepted that this would also be the case if the Tribunal were to conclude (as indeed it has done) that there was such a claim but the claim was not well founded.

[49]The publication and retention on Siebel of the 2013 decision was plainly not because Dr Adams did protected acts in 2011 and 2012, it was simply an administrative act on the part of the GMC in accordance with its comprehensive Records Retention and Disposal Policy that cases such as Dr Adams’, which are concluded with no further action because the relevant threshold test has not been met, are retained for 20 years from ‘closure’, after which only a summary record is kept (page G221). The second victimisation complaint is not well founded. The GMC’s refusal on 6 September 2022 to amend Annex A

[50]Dr Adams’ third victimisation complaint is also not well founded. The detriment is pleaded in paragraph 5.2 of the Amended Particulars of Claim as “a continuing failure to remove the Advice and prejudicial information in Annex A following a Rule 12 application by Dr Adams in 2022”.

[51]In his written submissions Mr Varnam acknowledges that if the Tribunal concludes (as it does) that there was a PCP of not removing material from Case Examiners’ decisions, then it is likely that the non-amendment of Annex A was as a result of the implementation of that PCP rather than a response to Dr Adams’ protected acts.

[52]Notwithstanding that concession, for the avoidance of doubt, in our judgement there are no facts from which we might infer that the decision not to amend Annex A was because Dr Adams had done protected acts. There are potentially two elements to the complaint, namely how his request was dealt with respectively by the Rule 12 Team and the Information Policy Team. When Dr Adams initially made his request to the GMC he did so without specific reference to Rule 12 of the FTP Rules. It was only following further correspondence with the GMC in the course of which the GMC stated that his request was being treated as a rectification request pursuant to Article 16 of the GDPR, that Dr Adams wrote, “For the avoidance of doubt my request was made subject to Rule 12 of the GMC’s Fitness to Practice Rules and it is my expectation under paragraph (6), to receive a letter with a decision and the reasons for that decision.” (page C30)

[53]There is a clear, indeed obvious, explanation for why Annex A was not amended by the GMC pursuant to Rule 12, namely Rule 12 confers no such power of amendment upon the Registrar. The circumstances in which a decision, as distinct from the reasons underlying it, may be reviewed are set out in Rule 12(1)(a) to (d). Sub-paragraphs (a), (c) and (d) are not relevant for these purposes. As regards sub-paragraph (b), which enables the Registrar to review a decision not to refer an allegation to the Investigation Committee or to the MPTS for consideration by the Medical Practitioners Tribunal, Dr Adams confirmed in writing on 2 September 2022 (page C28) that he agreed the case should have been closed. Whilst that is effectively determinative of his complaint, we would add that there is no power under Rule 12(1)(b) for the Registrar to review case examiners’ reasons for their decision independently of the decision itself. It seems to us that the Registrar would have been acting outside the powers conferred upon them by the FTP Rules had they purported to review the Case Examiners’ reasoning alone or altered the record of their decision.

[54]As regards Ms Brucato, Mr Varnam submits that she failed to engage with the substance of Dr Adams’ request. In so far as he seeks to criticise Ms Brucato for being inflexible or process driven in her approach, what emerged very clearly from her evidence at Tribunal is that she genuinely believes she cannot alter case examiners’ decisions unless perhaps directed to do so by the GMC’s Data Protection Officer, the Information Commissioner or a Court. Indeed, her understanding as to the limits of her authority extended to being unable to correct the name of a hospital or a doctor where these details have been recorded incorrectly by case examiners. Whilst we do not think that necessarily accords with Article 16 of the GDPR, it has no bearing upon the issues in this case since we are satisfied that the GMC’s processing of his data in the particular circumstances here was in accordance with Article 6(1)(e) of the GDPR and consistent also with guidance issued by the ICO in respect of the documenting of opinions, including mistaken opinions (pages G231 to G244).

[55]We find that the fact Dr Adams had done protected acts ten or eleven years earlier simply never entered Ms Brucato’s mind, who instead diligently adhered to what she genuinely understood to be the need to preserve a complete and accurate record of the Case Examiners’ decision in relation to Dr Adams. Indirect Discrimination – s.19 of the Equality Act 2010

[56]We return then to Dr Adams’ complaint that he was indirectly discriminated against by reason of the claimed PCP of, “Failing to remove the advice and details of the Employer Referral from the accessible information on his Professional Record under Rule 12.”

[57]We have referred already to the difficulties that have arisen because of how the List of Issues has been drafted. These difficulties extend to the complaint of indirect discrimination. The claimed PCP

[58]As recorded in the List of Issues, the PCP reads in terms that the provisions of Rule 12 of the FTP Rules mean that information is not removed from case examiners’ decisions. If so, for the reasons just set out, that is indeed the effect of Rule 12(1). But if that were to be the PCP relied upon, it seems to us the GMC would be able to justify its practice on the grounds that it is required to operate within the ambit of Rules that have been approved by Order of the Privy Council. Mr Varnam advocates a simpler construction, namely a practice of not removing any material from case examiners’ decisions. Whilst we cannot re-write the PCP, we are not required to construe its meaning in an overly mechanistic, literal or limiting way, particularly if this flies in the face of what was clearly intended by Dr Adams and we think reasonably understood by the Respondent.

[59]In our judgement the words, “under Rule 12” add nothing to the PCP, rather they were simply intended to signify that Dr Adams had (incorrectly, as it transpires) originally identified to the GMC that his request for rectification was made pursuant to Rule 12 of the FTP Rules. What of the formulation of the PCP by reference to the “accessible information” on Dr Adams’ record? We do not construe this as being limited to information held in relation to Dr Adams that is publicly accessible on the medical register, but instead that it extends to information held on Siebel that is capable of being accessed by authorised individuals at the GMC or, in certain circumstances, that might be made available to third parties even if it is not generally available to the public.

[60]So construed and understood, and as identified by Mr Varnam, the PCP is plainly established, since Ms Brucato and Mr Keegan essentially accepted that it is the GMC’s practice not to edit case examiners’ decisions or to remove the information contained in their decisions from Siebel. Ms Brucato denied the existence of any rigid policy in this regard but accepted that it was certainly the practice within the Information Policy Team not to amend case examiners’ decisions, even if she could not speak to any wider practice within the GMC. At paragraph 32 of her witness statement for example, she refers to the decision not to rectify the Case Examiners’ decision as being the only one reasonably available to her. At paragraph 33 of her witness statement she states that to date she had never made a decision to amend a case examiners’ decision. Her evidence in this regard was reinforced by Mr Keegan who went on to explain why certain practical considerations render it difficult to amend decisions, as opposed to issuing updated versions of them or noting obvious factual errors, and recording doctors’ objections on Siebel. Disadvantage

[61]Once again, the List of Issues has thrown up difficulties in this regard.

[62]The pleaded position at paragraph 8.3 of the Amended Particulars of Claim is that the PCP “put the Claimant under a particular disadvantage as more BAME Doctors are likely to get into a dispute about race discrimination culminating in the Respondent’s involvement by way of an employer referral”. However, whilst this identifies that BME doctors are disadvantaged in so far as they are the subject of a disproportionate number of complaints and referrals to the GMC (something over which the GMC ultimately has no control), that disadvantage results from the actions of those who make complaints and referrals to the GMC rather than any practices on the part of the GMC. The pleading does not obviously identify the particular disadvantage that is said to result from the practice of not amending case examiners’ decisions. At paragraph 79.5 of the Amended Particulars of Claim, reference is made to Dr Adams having been disadvantaged and continuing to be disadvantaged in obtaining future employment by the comments made by the GMC on his professional record. Whilst that clearly relates to the Case Examiners’ decision, it is in the context of a pleaded PCP of “issuing Advice following a workplace dispute about alleged discrimination and victimisation”, a PCP which has not been advanced before us and is not reflected in the List of Issues.

[63]The claimed disadvantage caused by the PCP relied upon is recorded within the List of Issues as follows: “7.3.1 puts BME Doctors at a disadvantage in the circumstances; and 7.3.2 that the Claimant has suffered that disadvantage and continuing disadvantage to his prospects of obtaining future employment by the comments made by the Respondent on his Professional Record and that the comments on the Claimant’s record which are alleged to be based on untested, inaccurate and misleading information.”

[64]As drafted, paragraph7.3.1 of the List of Issues fails to identify the group disadvantage, so that we can only infer that it is the disadvantage described in paragraph

7.3.2 in relation to Dr Adams himself, namely that BME doctors’ future employment prospects are harmed by unsubstantiated comments being held by the GMC on its records in relation to them. In which case, as formulated, Dr Adams’ indirect discrimination claim would be bound to fail given Dr Adams’ acceptance by the close of the hearing that the evidence does not establish that the GMC disclosed (or, in our judgement, would disclose) the contents of Annex A to any prospective employer of his or that its practice is to disclose closure decisions to prospective employers of doctors on the register.

[65]However, Mr Varnam sought to advance the claim in a different way in closing. In his closing written submissions, he states that so long as the comments in Case Examiners’ decisions remain on a doctor’s GMC record, those comments may be taken into account if the doctor is subject to a further complaint to the GMC. He develops this further in paragraphs 7(2) and (3) of his written submissions, in which he notes that BME doctors are more likely to be subject to complaints to the GMC, and are more likely, if complained about, to be referred to what is known as ‘stream 1’. As such, he submits, if adverse material remains on their record, they are at greater risk of that being taken into account against them.

[66]Mr Varnam initially suggested that this claimed disadvantage could somehow be read into paragraph 7.3 of the List of Issues. Even on the most generous reading of the List of Issues, we cannot agree. We invited Mr Varnam to identify where within the Amended Particulars of Claim Dr Adams had referred to being disadvantaged in the event of any further complaint to the GMC. He was unable to pinpoint anything in the Amended Particulars of Claim. We have since gone back through the Amended Particulars of Claim to see whether these might reveal anything further of assistance. Aside from paragraph 8.3 of the Amended Particulars of Claim, which we have addressed above, the only other potential references to Dr Adams having been disadvantaged are at paragraphs 5.1 and 59 of the Amended Particulars of Claim, in which reference is made to Annex A remaining accessible to regulators as well as to potential employers.

[67]We have re-read Dr Adams’ witness statement in case this might shed some further light on the matter. It is clear from paragraph 59 of his witness statement that his concern is not that the GMC might revisit his record in the event of further complaints, rather that other regulators would have access to the information held by the GMC. He states that when he wrote to the GMC on 24 January 2022, “I was particularly concerned about the untrue and prejudicial comments that the Medical Director of KGH had sent to the GMC, which, together with the comments in Annex A would portray me in a bad light to external bodies, such as the GMDC, the HCPC with regards a career in psychology.” His references to the GMDC and HCPC are respectively to the Grenada Medical and Dental Council and the UK Health and Care Professionals Council.

[68]Dr Adams goes on to say that his concerns in this regard derive from the GMC’s Publication and Disclosure Policy in respect of Fitness to Practise. He refers to pages G200 and G18 of the Hearing Bundle. Page G18 sets out Rule 11 of the FTP Rules Page, regarding warnings and has no bearing on his situation as he was not issued with a warning. Page G200 likewise has no bearing upon his situation as it concerns those cases where information originally included on the medical register as a result of action having been taken on a complaint has been removed from the medical register at a later date but may nevertheless still be made available to a third party, including an overseas medical regulator. The relevant Policy does not apply to Dr Adams’ situation since the decision in 2013 to conclude the case without further action was never placed on the medical register, so would not be made available to a third party, including an overseas regulator, in the circumstances described in the Policy.

[69]During the hearing Dr Adams drew our attention to the section at page G201 of the Hearing Bundle headed, “What information do we disclose while we are considering concerns about a Doctor?” It provides as follows: “The fact that a doctor is the subject of an investigation will not be routinely disclosed to general enquirers (apart from current or new employers / responsible Officers or the media) unless and until a warning is issued, undertakings are agreed or a hearing takes place. The exception to this is where it is necessary for the MPTS to impose an Interim Order to restrict the Doctor’s practice as a precautionary measure.” He also referred to an email he had received from Lucy Myatt in the Information Policy Team on 25 October 2019 in which she had referred to disclosures to organisations responsible for healthcare provision and regulation (page D142). However, Ms Myatt had gone on to refer him to the Publication and Disclosure Policy which does not suggest that his situation was one in which a disclosure would be made to another regulator.

[70]In any event, there is no evidence that any other regulator was informed in 2013 or has been informed since then that Dr Adams was the subject of an investigation. Certainly, there were no warnings, undertakings or hearing decisions that affected Dr Adams’ registration or practise to warrant disclosure; and the MPTS did not impose an Interim Order (and it was never suggested it should do so). The case was simply closed with no further action. Accordingly, having regard to the documented Policy above, no details in relation to Dr Adams would obviously have been disclosed to the GMDC, the HCPC or any other regulator. That is also true of BME doctors more generally whose cases have been concluded with no further action being taken. Even putting aside that this potential aspect of Dr Adams’ case was not put to the GMC’s witnesses, comprises no more than a bare assertion in his witness statement and was not addressed in closing, in our judgement, there is nothing to support the claimed disadvantage. We have no evidence that investigations which are closed with no further action are routinely, or even occasionally disclosed to other regulators, including overseas regulators or that this impacts BME doctors or other groups disproportionately.

[71]In approaching the question of disadvantage, we have been mindful that the Grounds of Response do not identify the legitimate aims relied upon by the GMC as justifying the PCPs contended for by Dr Adams, nor do they set out why the PCPs were a proportionate means of achieving those aims. Instead, these matters have been addressed by Ms Farrell at paragraph 89 onwards of her witness statement, For that reason and in the interests of ensuring the parties are on an equal footing, we have dealt with the claim in Dr Adams’ witness statement that he was disadvantaged in terms of information being potentially available to other regulators. We do not consider that fairness or justice require we should afford Dr Adams the same latitude in respect of Mr Varnam’s closing submission that the relevant disadvantage is instead that comments in Case Examiners’ decisions may be taken into account if a doctor is subject to a further complaint to the GMC. We consider that the GMC would experience significant unfairness and injustice if we were to permit the claim to be altered in this material way in closing without an application to amend having been made and without either party having addressed the matter in evidence, including with statistical evidence if appropriate regarding the numbers and protected characteristics of practitioners who are subject of more than one investigation and the outcomes by group.

[72]In any event, even had the claimed disadvantage been advanced in the terms suggested in Mr Varnam’s closing submissions, it seems to us unlikely that the relevant disadvantage would have been established. Firstly, on the issue of whether Dr Adams was put at a particular disadvantage, save that KGH unsuccessfully sought to have the case reviewed in 2013 under Rule 12 of the FTP Rules, no further complaints or referrals were made to the GMC about Dr Adams such that the Case Examiners’ 2013 decision was taken into account at a later date in relation to him. Secondly, as we have noted already, case examiners’ decisions do not involve findings of fact that disadvantage a doctor in the event of a later complaint or referral. In any event, doctors are always afforded the right to make representations in any investigation: this affords them an opportunity to remind the case examiners in any later investigation, should such reminder be warranted, that any previous advice or observations by case examiners do not amount to findings of fact. In our judgement, if there could be said to be any particular disadvantage, it would flow from the fact that case examiners may have access to the details of previous complaints and referrals, and be influenced by this information rather than the case examiners’ decision on them. Dr Adams may have originally wanted the information supplied by KGH and NLAG to be expunged from his records, but he now accepts that this information has legitimately been retained by the GMC. As he wrote to Ms Brucato on 2 September 2022: “[I] do not seek to change the fact that my employer chose to complain about me to the GMC.”

[73]For all these reasons, Dr Adams’ remaining complaint that he was indirectly discriminated against is not well founded. Justification

[74]In view of the potential importance of this issue to the GMC given the significant volume of historic decisions held by it, we have gone on to consider whether in the event the disadvantages referred to by Dr Adams in paragraph 59 of his witness statement and additionally contended for by Mr Varnam in paragraph 7 of his written submissions were to have been established, the GMC would be able to justify the PCP. A. The aims relied upon

[75]The legitimate aims relied upon by the GMC as justifying its practice of retaining written closure decisions are as follows:- 75.1. To identify a potential pattern of conduct; 75.2. To review closure decisions (where appropriate) under Rule 12 as a result of new information; 75.3. To co-operate with public enquiries, inquests and law enforcement agencies; 75.4. To enable the GMC to consider and respond appropriately to any legal challenges it receives; and 75.5. To undertake audits into its decision making.

[76]Although Dr Adams accepts, in accordance with the principles in AkermanLivingstone v Aster Communities Ltd

[2015] AC 1399

, that these are aims of substantial importance and that there is a connection between them and the disadvantage suffered, he contends that lesser steps than a practice of total non-deletion could have achieved the aims satisfactorily, namely that the GMC could instead have pursued a practice of redacting non-essential elements of case examiners’ reasons including in this particular case those elements of Annex A which amount to the apparent drawing of conclusions and the giving of advice, whether or not recorded as such. Whilst we acknowledge the way in which Mr Varnam developed this point in the course of his oral submissions, particularly in response to the Tribunal’s various questions, we consider that the suggested approach is impractical and would not achieve the relevant aims satisfactorily. Firstly, it begs the question who would be the arbiter as to which elements of the reasons are essential to the decision, something that is brought into sharp relief in a case such as this where the rectification request has been made some nine years or so after the event and the Case Examiners in question have retired. In any event, as with this Tribunal’s reasons, separating out the essential from the non-essential would be a difficult, indeed largely subjective exercise wide open to interpretation.

[77]Turning then to whether the GMC’s practice was necessary in pursuit of the five identified aims, Mr Hare reminds us of Maurice Kay LJ’s observations in Cadman v Health and Safety Executive

[2004] IRLR 971

, at [31]: “The test does not require the employer to establish that the measure complained of was “necessary” in the sense of being the only course open to him. … The difference between “necessary” and “reasonably necessary” is a significant one …”

[78]We shall examine the stated aims in turn.

[79]Whilst we think that patterns of conduct are more likely to be indicated by the complaints and referrals themselves, the case examiners’ decisions provide a helpful precis of the allegations and the information provided in support of them. However drafted or expressed, and regardless of whether the doctor in question might regard it as a fair and complete summary of the alleged concerns that have arisen, there has to be some starting point for case examiners dealing with any further complaints when they are giving consideration to whether a pattern of conduct is potentially indicated. Previous decisions by case examiners provide the obvious starting point in that regard.

[80]If, as Dr Adams contends, the Case Examiners gave advice in 2013 by reiterating paragraphs 46 and 47 of Good Medical Practice to him, even if their decision was not recorded on Siebel as having involved the giving of advice, it seems to us essential that the GMC should retain a complete record of the reasons why such ‘advice’ was given. Without such record the Rule 12 Team would potentially not have all relevant information before it when deciding whether to review a previous closure decision on new information becoming available to it.

[81]We can immediately see why the work of public enquiries, inquests and law enforcement agencies could be undermined or at least the GMC’s ability to co-operate with them could be undermined, if it was unable to provide a complete picture, which in our judgement would include the reasons why particular advice was given or the provisions of Good Medical Practice reiterated, since the giving of ‘advice’ (understood in its widest sense) and, if relevant a doctor’s failure to act upon or their departure from that ‘advice’ could well inform that other agency’s work and conclusions.

[82]If a complete record of case examiners’ decisions is not kept, the GMC would potentially be significantly disadvantaged in responding appropriately to legal challenges. This case illustrates the point only too clearly. If only a redacted copy of the Case Examiners’ decision had been retained, there would be no explanation for why paragraphs 46 and 47 of Good Medical Practice were reiterated to Dr Adams. In our judgement, the GMC would immediately have been on the backfoot in terms of rebutting Dr Adams’ claim that the Case Examiners’ victimised him. The absence of any explanation for detrimental treatment is commonly a situation in which a Tribunal may draw an adverse inference. As this case illustrates, if the GMC was required to rely upon case examiners to supply the necessary explanation for their decisions, those case examiners would lack critical information to help refresh their memories. We think we would be in the same impossible position if we were asked to explain our judgment eleven years hence without these reasons being available to us and with only the Hearing Bundle available to prompt our recollection. It is not lost on us that Dr Adams relies upon the very passages which he contends should have been redacted in support of his claim that he was victimised by the Case Examiners. Annex A was closely scrutinised during the hearing. The fact that the complete reasons were available to the GMC, and indeed to Dr Adams and the Tribunal, has enabled the GMC to address the inference sought to be drawn by Dr Adams.

[83]Finally, the availability of complete records of the reasons for decisions supports effective auditing of the GMC’s activities, including the decisions of its Fitness to Practise Directorate. As the Plymouth Review evidences, Plymouth University was able to audit the GMC’s practices precisely because complete records were retained. This enabled it to conclude, “No evidence of bias or discriminatory practices was identified, either in the GMC’s guidance and criteria documentation for decision-makers, or the sampled case files.” It went on to say, “The decisions reached in the reviewed case files were found to be in line with the guidance and criteria set out for decision-makers. The review identified a few specific instances which raised further questions: these were not about outcomes but about the reasoning behind decisions and the clarity with which they had been expressed and recorded.” These and other observations by Plymouth University ultimately led to revisions in 2015 to the GMC’s operational guidance on decisions to case examiners and specific advice in 2016 on giving written advice at the end of fitness to practise investigations. In our judgement, this important review, as well as the changes that resulted from it, might not have happened without data being available to inform the review and support its conclusions.

[84]Given that BME doctors, amongst others, are subject to a disproportionately higher volume of complaints and referrals than other doctors, the availability of complete data has supported a change in guidance which we accept is intended to address the difficulties and potential prejudices experienced by BME Doctors within their Practices and workplaces. Whilst the GMC cannot prevent complaints and referrals being made to it, the work done by Plymouth University, on the strength of data maintained by the GMC, is just one example of how effective auditing of the GMC’s activities can contribute towards addressing the systemic disadvantages faced by BME doctors and others. According to Mr Keegan, in 2013, which was the year that the investigation concerning Dr Adams concluded, 1,726 investigations concluded in total, with 199 of those cases concluding with advice. In 2023, a total of 467 investigations concluded, with only 39 of those concluding with advice. That can only have benefitted BME doctors and other over represented groups in the process. B. Proportionality

[85]As to whether the GMC’s practice strikes a fair balance between its reasonable need to accomplish its stated aims and any disadvantage suffered by Dr Adams and other BME doctors, the disadvantage is not of course the one identified by Dr Adams, namely impaired employment prospects resulting from disclosures to prospective employers or other regulators. Instead, Mr Varnam submits they are disadvantaged in so far as case examiners’ decisions are available to other case examiners in the event of further complaints or referrals. Though not explicitly stated, the underlying assumption would seem to be that case examiners will be somehow prejudiced by having access to such decisions (as opposed to the materials underlying them). The implicit disadvantage is seemingly the potential risk of conscious or sub-conscious biases and assumptions operating in the minds of case examiners. Yet, as we have noted already, it seems to us that the greater risk in that regard derives from the details of complaints and referrals, and the materials submitted with them, being retained, something Dr Adams accepts as a legitimate practice. In which case, it might be thought to be in a doctor’s interests for the case examiners’ reasoning to be available as a counter balance to potentially prejudicial information and materials that may have been provided within or as part of the complaint or referral.

[86]In any event, it seems to us that the availability of the case examiners’ complete reasons enables doctors, if relevant, to challenge or, as appropriate, rely upon their reasoning in any subsequent investigations. Given that case examiners are aware that their role is not to make findings of fact, a function that is reserved to others, we are satisfied that the GMC’s pursuit of the five identified aims is proportionate when balanced against any potential perception by BME doctors or other groups that there is a risk they might be prejudiced in any future investigations because the case examiners’ decisions and reasons in respect of past investigations continue to be held on their record at the GMC. If that is their perception in the matter, the 2016 guidance for decision makers on giving written advice at the end of fitness to practise investigations could not be clearer: “Advice … is not an admonition in relation to past actions.”

[87]We have also weighed in the overall balance that the GMC operates a 20- year retention policy, so that information to which a doctor might object or regard as potentially prejudicial is not retained indefinitely. In our judgement, the retention period is proportionate to the aims sought to be achieved by the practice of not removing any material from case examiners’ decisions. Again, this case rather illustrates the point, in so far as a claim has been brought against the GMC some ten years after the Case Examiners gave their decision. We can also well understand why patterns of conduct might only emerge over the course of a number of years, and why enquiries, inquests and law enforcement investigations may be as concerned with past or historic events as they are with more recent events. The GMC’s retention period is consistent with NHS England’s 20-year retention period in respect of information pertaining to concerns and is significantly shorter than the 70-year retention period operated by the Nurse and Midwifery Council in respect of information pertaining to its fitness to practise investigations.

[88]Although Dr Adams was afforded more than one opportunity in 2012/13 to comment on the concerns that had been expressed in relation to him, Ms Brucato wrote to him on 8 September 2022: “I am happy to save a copy of your comments and/or details of the employment tribunal settlement on the case if you would find that useful. We also have a case retention summary and notes field on our case management system where we can add comments clarifying what happened after your case was closed. Please let me know if you would like to proceed with any of the above options.” (page C32) Dr Adams did not take up Ms Brucato’s offer. Nevertheless a copy of his correspondence was retained in Siebel to provide at least some record of his concerns. Again, this evidences the GMC acting proportionately in the matter by seeking to strike a fair balance between potentially competing interests and taking steps to ensure as far as possible that doctors, or particulars groups of doctors, are not disadvantaged.

[89]By way of a final observation in this matter, it seems to us that if we were to accede to Mr Varnam’s submissions we would effectively be conferring a right of review upon doctors that is not currently conferred by Rule 12(1) of the FTP Rules. We do not consider it is for this Tribunal to mandate the Rules by refence to which the GMC discharges its statutory responsibilities in respect of doctors’ fitness to practise. That is a matter for Parliament, which through the Privy Council has seen fit to approve the Rules in their current form. JUDGMENT on RECONSIDERATION APPLICATION

Background

Introduction

[1]The Tribunal determines that a hearing is not necessary in the interests of justice.

[2]The Claimant’s reconsideration application is refused.

Introduction

[1]Rule 70 of the Employment Tribunal Rules of Procedure 2013 empowers the Tribunal, either on its own initiative or on the application of a party, to reconsider any judgment where it is necessary in the interests of justice to do so. Under Rule 72(1), an Employment Judge may determine an application on their own and without a hearing if they consider that there is no reasonable prospect of the original decision being varied or revoked.

[2]The Claimant’s application for reconsideration was made within the time limit in Rule 71 for making such an application.

[3]The starting point clearly has to be the Tribunal’s reserved judgment. We provided detailed written reasons for our decisions. Should these matters be examined on appeal, it will be for the Employment Appeal Tribunal to say whether those reasons and our decision can stand. Any suggestion that we erred in Law, including that our findings were perverse, is generally a matter for appeal - Ebury Partners UK Ltd v Acton Davis

[2023] EAT 40

[4]In Outasight VB Ltd. v Brown UK

EAT/0253/14

, the Employment Appeal Tribunal considered the Tribunals’ powers under Rule 70 of the Employment Tribunal Rules of Procedure 2013. At paragraphs 27 – 38 of her Judgment Her Honour Judge Eady QC, as she then was, set out the legal principles which govern reconsideration applications, and observed, “The interests of justice have thus long allowed for broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.” These principles were affirmed by His Honour Judge Shanks in Ebury Partners.

[5]I consider that there is no reasonable prospect of the original decision being varied or revoked. The points raised by the Claimant in his application were effectively explored during the hearing and are addressed in the Tribunal’s written reasons, There is a clear and obvious need for finality in this litigation, and the interests of justice do not require that the Claimant should be given a further opportunity to argue these various points or that the Tribunal should revisit its decision.

[6]I do not accept, as the Claimant contends, that a ‘procedural mishap’ occurred in this case. As we observed at paragraph 22 of our written reasons, we were initially proceeding on the understanding that the two detriments recorded in the List of Issues did not extend to the Case Examiners’ decision itself. Whilst our understanding in that regard was not immediately corrected by Mr Varnam, as we went on to note, he addressed the matter in the course of Mr Keegan’s evidence. Given that it was the subject of some discussion during the hearing, we thought it sensible to address the issue in our judgement: as we said in conclusion at paragraph 26 of our written reasons we accepted that the Claimant’s victimisation claim included a complaint in respect of the content of Annex A to the GMC’s letter to him dated 15 February 2013, namely regarding the Case Examiners’ decision. At paragraphs 34 to 47 of our written reasons, we went on to set out our findings and conclusions in relation to the complaint, specifically why the complaint was not well-founded. In the circumstances there has been no procedural mishap and there are no grounds to vary or revoke our decision.

[7]If the Claimant considers that Mr Hare said anything in the course of his closing submissions that altered his understanding of the case or his view as to how the case might be advanced on his side, he was able to share his thoughts and instructions in the matter with Mr Varnam. Mr Varnam and Mr Hare exchanged closing written submissions so that each was aware in advance what the other would say in closing and could tailor their oral submissions accordingly. Mr Varnam did not seek to come back on any matters raised by Mr Hare in his oral submissions.

[8]It is evident from the application for reconsideration that the Claimant wants a proverbial second bite of the cherry, that he is seeking to re-argue various points that were explored in detail during the hearing and which are addressed comprehensively in the written reasons. It is not necessary in the interest of justice that he should be afforded that opportunity. If he considers that any of our conclusions were perverse or reached as a result of an error of law, he should pursue his appeal rights.