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08 April 2019

Tackling Racial Bias in Regulatory Proceedings

4 mins

The Court of Appeal has held in the case of Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust that a surgeon had been discriminated against on grounds of race by the Trust for dismissing him and failing to consider his grievance.

Mr Iwuchukwu was a consultant surgeon employed by the Trust, who was referred to the General Medical Council (GMC) due to concerns regarding his conduct and capability. After he was referred to the GMC he raised a grievance, which the Trust refused to consider because it was out of time. He was then dismissed by the Trust on the grounds of capability.

After his dismissal he brought a number of claims, including discrimination on grounds of race and victimisation, for the failure by the Trust to investigate his grievance. These claims were successful in the Employment Tribunal, which rejected the Trust’s explanation that they considered the grievance to be an attempt by Mr Iwuchukwu to interfere with the capability process being conducted against him. The Employment Appeal Tribunal allowed the Trust’s appeal, stating that the Trust’s reasoning regarding the refusal to investigate his grievance was ‘complete’ and did not relate to race.  However, the Court of Appeal upheld Mr Iwuchukwu’s appeal and restored the original decision by the Employment Tribunal, stating that the explanations provided by the Trust were unsatisfactory and tainted by racial discrimination.

This case was brought in the midst of a wider dialogue concerning racial bias in the medical profession and its institutions. In the report published last year by the GMC, the Council noted the disproportionality in the “flow of complaints” they receive concerning BME doctors. The Council further stated in the report that “some groups are more prone to complaints or concerns from particular sources, such as the police or employers compared with other groups…Successive reports on the state of medical education and practice in the UK have found, for example, an overrepresentation of BME doctors being complained about by these two sources.”

As with all regulatory bodies, the GMC has an interest in maintaining a reputation of legitimacy and integrity, both in the eyes of the public and the profession. It could be said that this reputation is potentially put at risk when there are concerns about complaints and referrals to the GMC being racially discriminatory.

It could also be asked whether this reputation is put at risk where Tribunal or Court proceedings are initiated in regards to the same circumstances, and the regulatory body’s findings contrast greatly to the judgment of the Tribunal or Court. Should regulatory bodies like the GMC give any consideration to Tribunal or Court proceedings, when they relate to the same individual and events?

In this case, Mr Iwuchukwu was referred to the GMC but it was subsequently held by the Court of Appeal that he was subjected to discrimination by his employer. Where a Tribunal or Court has held that an employer has discriminated against a professional, a referral to a regulator may have arisen out of the same discrimination by the employer as is held unlawful by said Tribunal or Court. If this is the case, should the regulatory body stay proceedings to wait for the outcome of the Court or Tribunal case?

Regulatory bodies generally have a different purpose to Courts and Tribunals. Their obligations are heavily weighted towards public interest, so they are likely to err on the side of protecting the public at the potential cost of undue reputational damage to the professional.

In light of this case and the wider dialogue, should regulatory bodies review their procedures as to how regulatory proceedings should coincide with Tribunal and Court proceedings? Further, what could regulatory bodies do to account for discriminatory bias in complaints and referrals they receive?

Last year, the GMC commissioned research into why BME doctors are over-represented in fitness to practise referrals. With this research they hope to develop “supportive and open workplaces, where doctors’ interactions with the GMC, and with processes owned by the GMC, are appropriate and fair.” The findings of the research could help the GMC understand and tackle the issue of discrimination in the referrals it receives, strengthening its reputation of legitimacy and integrity.

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