Mr A Girgis v Joint Committee on Intercollegiate Examinations — 2023

The tribunal heard complaints under section 53 of the Equality Act 2010 that the Respondent discriminated against Mr A Girgis in the arrangements for deciding upon whom to confer the FRCS-UROL qualification and by not conferring it on him after the November 2019 examination. It found that the Respondent did not contravene the Act and dismissed the claims. The separate remedy hearing was cancelled because there was no liability finding.

On indirect discrimination, the tribunal accepted that the Respondent applied the overall pass mark and the day 1 consultant in the UK standard to all candidates, and that a four-attempt limit applied, but it did not accept that the Claimant established PCP2, namely a practice of marking down non-UK nationals or those not in UK training posts. It found no adequate evidence that candidates were being wrongly marked because they were non-trainees, and it held that the statistics relied on did not show that non-UK nationals were put at a particular disadvantage compared with UK nationals in an appropriate pool. The tribunal also rejected the Claimant's alternative statistics-based case and held that PCP4, even if capable in principle of causing disadvantage, was not shown on the evidence to have done so for non-UK nationals.

The tribunal said that, had it needed to, it would have found the pass mark, the day 1 consultant standard, and the four-attempt limit to be justified as proportionate means of achieving the legitimate aim of patient and public safety. It also held that the late amendment introducing PCP4 was out of time and would not have been just and equitable to extend time for, given the length of delay and the absence of a good explanation.

On direct discrimination, the tribunal accepted that some examiners would have realised that Mr Girgis was not a UK national, but it held that the evidence as a whole did not support an inference that the marks or the failure outcome were because of race. It considered the complaints about inconsistent marking, limited written justification, differences between examiners, and the absence of some documents such as the calibration grid, but concluded that those matters did not show discriminatory treatment. Even if a prima facie case had been made out, the tribunal said the Respondent's explanations, together with the structure of the viva-style examination, the use of paired examiners, and the repeated calibration and equality training, would have discharged the burden of proof.