AC-2024-LON-001145 - [2025] EWHC 2075 (Admin)

Mr Ojo argued Grounds 2, 4 and 5 together. He submitted that the abuse of process decision was flawed because the MPTS applied the wrong legal test in relation to the burden of proof applicable to a claim of direct discrimination. He emphasised that, by virtue of section 136 of the EA 2010 (quoted above), the MPTS was required to consider whether the appellants had put forward a prima facie case of discrimination and then whether the GMC could demonstrate that its proceedings against the appellants did not amount to direct discrimination. He contended that, instead of applying this two-stage approach, the MPTS determined only that it “could not conclude on the balance of probabilities that there was discrimination.” By applying a one-stage test, the MPTS made a material error of law by shifting the entire burden of proof to the appellants.

Under Ground 4, Mr Ojo submitted that, in reaching the abuse of process decision, the MPTS erred in its finding that a Northern European doctor (such as Dr Strommer was said to be) was not a proper comparator. Mr Ojo contended that part of the basis for this finding was that, unlike the appellants, Dr Strommer had not instructed legal representatives. This could not constitute a legitimate reason to justify the GMC bringing fitness to practice proceedings.

Under Ground 5, Mr Ojo submitted that the MPTS further erred in so far as it found that the lack of evidence of (i) Dr Strommer’s knowledge of the suspension of the CQC’s registration and (ii) that he had been present on the premises after 1 November 2018 was not material to the question of whether an investigation should have been opened by the GMC. The absence of this evidence could not be used to justify not opening an investigation.

It was not in dispute that, by virtue of section 136 of the EA 2010, the appellants were required to prove, on the balance of probabilities, acts from which the MPTS could conclude in the absence of an adequate explanation that an unlawful act of discrimination had taken place. If the appellants could not discharge that burden, the claim of discrimination was bound to fail (stage 1). Otherwise, the burden moved to the GMC to explain the alleged discriminatory treatment and satisfy the MPTS that race played no part (stage 2).

I accept that the MPTS could have set out the two stages more clearly. However, on a full and fair reading of the Tribunal’s decision, it did consider and make findings on whether it had been established that the GMC were aware of Dr Strommer’s race (in context, stage 1) and also whether the GMC had established clear and cogent reasons for treating him differently (in context, stage 2). I am therefore not persuaded that the Tribunal made a material error in this regard.

In the absence of evidence that the GMC knew Dr Strommer’s race, the appellants were unable to prove acts from which the Tribunal could conclude that an unlawful act of discrimination had occurred. The appellants could not, therefore, discharge their burden under stage 1. The discrimination claim was accordingly bound to fail.

In any event, the Tribunal was entitled (and correct) to conclude that Dr Strommer was not a proper comparator for the purposes of section 23(1) of the EA 2010. As I have indicated above, I proceed on the basis that he worked at the Medical Centre on 1 November 2018. There is, however, no reason to suppose that he did the same things as the appellants, either on that day or after that day. In particular:

Mr Ojo pointed to the Tribunal’s finding, at paragraph 63 of the abuse of process decision, that Dr Strommer appeared to be in a different position to the appellants since he was not seeking to challenge through legal representatives the CQC decision or the appointment of Federated4Health as the new caretaking practice. He submitted that seeking legal advice and utilising the legal system were rights that the appellants were entitled to exercise and could not be treated as a relevant difference between the appellants and Dr Strommer.

I accept that this part of the Tribunal’s phrasing was infelicitous and, taken on its own, can give the impression that the appellants were to be blamed for seeking legal advice. It must however be read in context. In the next paragraph, the Tribunal quoted from an email sent by Mr Ojo to NHSE’s solicitors on 31 October 2018 as follows:

“We reiterated our earlier position and confirmed to Mr Tyrell that from 01 November 2018, our clients will be providing services from the practice pursuant to their obligations under the GMS Contract. We clarified our position that any attempt to prevent our clients from fulfilling their obligations under the GMS Contract would amount to interfering with the Order of the Court and potentially an attempt at terminating the Contract which the Court had ordered not to be terminated…

…Our clients have now decided that they are in a position to perform their obligation under the contract and have made arrangements for this to commence on 01 November 2018…

…Further, our clients and their partners are the Leaseholders of the premises and they have been advised not to allow any caretaker to attend the premises” (emphasis added).

As Mr Dunlop submitted, the underlying point made by the Tribunal in these and subsequent paragraphs was that the appellants had used lawyers to threaten to provide their own services from the Medical Centre rather than accept Federated4Health as a caretaker. This intransigence was a clear sign that they knew that there was to be a new caretaker and wanted to block it. The Tribunal was entitled to conclude that there was no evidence to suggest that Dr Strommer had similar knowledge or that he wanted to block a new caretaker.

In these circumstances, the MPTS was entitled to conclude both that Dr Strommer was not an appropriate comparator and that there was no reason to bring proceedings against Dr Strommer. The arguments relating to the EA 2010 fail. Grounds 2, 4 and 5 are dismissed.