The recent appeal by the Professional Standards Authority v Health and Care Professions Council (HCPC) and Leonard Ren-Yi Yong  EWHC 52 (Admin) looked at the issues of 'sexual motivation' and acting 'in a harassing manner' in a case where physical contact was not present for almost all of the allegations, and the conduct was in relation to colleagues rather than patients.
In this article, we consider the case of Yong in relation to sexual motivation in the absence of physical contact, and what it means for the regulators, the regulated, legal representatives, fitness to practise panels and their legal advisers.
It was Mr Yong, a Social Worker’s behaviour towards seven female colleagues, that was at the centre of the case heard by the HCPC's Conduct and Competence Committee. The Committee proceeded in Mr Yong's absence who did not engage with the hearing, and found all but one of the factual allegations against him proved.
With limited assistance from the Legal Assessor the Committee concluded that he had behaved 'inappropriately' but not 'in a harassing manner', nor were his actions 'sexually motivated'. The Committee, only handed down a three year caution order on his registration as a Social Worker. This was at least partly based on the Committee's limited findings, 'that the Registrant’s behaviour was inappropriate but was not harassing or sexually motivated'.
Appeal to the High Court
The Professional Standards Authority (the Authority) referred the Committee's decision to the High Court on the basis that it was not sufficient for the protection of the public. It asked the court to quash the original decision and to substitute it with findings that Mr Yong’s conduct was 'harassing' in relation to five and 'sexually motivated' in relation to two of the workers who had made complaints against Mr Yong.
Law prior to Yong
The High Court heard the case and in its judgment, it cited Basson v General Medical Council  EWHC 505 (Admin). Where Mostyn J described the test for sexual motivation as, “sexual motive means that the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship".
It also referred to GMC v Haris  EWHC 2518 (Admin), where Foster J suggested, that it may be more straightforward to allege that conduct is 'sexual', in an aim to reduce the challenge of inferring or deducing the state of mind of the accused professional.
Where the test for whether conduct was sexually motivated has been the subject of case law it has previously usually involved physical touching, as was the case in Basson and Haris.
The Outcome in Yong
Griffiths J in Yong noted that the Committee should have been reminded of its public sector equality duty under the Equality Act 2010 and that it could then have drawn on the definition of harassment at section 26 of that Act. He concluded that "Any conduct within the section 26 definition must be harassment for the purposes of an HCPC disciplinary enquiry, given the public sector equality duty and given, indeed, the fact that section 26 conduct will amount to harassment, or to behaviour “in a harassing manner”, within the ordinary meaning of those words." Applying this test led to the additional findings of harassment.
He then considered the test laid down in Basson, and the Court's approach in Haris and made additional findings, of 'sexual motivation' in relation the conduct pertaining to two of the workers, one of whom, had not been touched by Yong, and the other had received an unwanted hug, as well as other unwanted verbal advances, which were not physical. The Court adopted the Committee's findings in respect of the facts, misconduct and impairment, in accordance with the deference on questions of primary fact proved by witnesses (e.g. GMC v Jagivan  1 WLR 4438 at para 40(iii)), while at the same time recognising that different considerations apply to drawing inferences from those primary facts (e.g. Jagivan para 40(iv)).
Establishing 'sexual motivation' is of course a particularly important aspect of any case in which it arises, because it is a significantly aggravating feature of any case, and in some, it will be the seminal issue. Therefore, any assistance for those involved in this area is welcome.
The advice provided by the Legal Assessor to the HCPC's Committee on sexual motivation in the case of HCPC v Yong, did not refer them to Basson. The apparent deficiency of that advice, was an important piece of the Authority's appeal. It goes some way to explaining how Griffiths J was able to substitute the findings of the HCPC's Committee with findings of sexual misconduct, while leaving the factual findings untouched.
Similarly Griffiths J had no difficulty in asserting the relevance of the Equality Act 2010 to the work of such Committees and from there to find and apply the definition of harassment which will form a useful starting point for submissions and advice in these cases.
Yong may assist future panels, committees and legal advisors on all sides, to better understand, and test for sexual motivation inferred from the act(s) of an individual towards colleagues, which may, but does not necessarily have to include physical touching.
The Haris decision is subject to an appeal which may mean that this area of law is given greater scrutiny by the Court of Appeal and we benefit from further guidance. However, in light of the direction of travel, now made that little bit more clear in Yong, one may assume that, any refinements, would not be enough to move away from the core principles discussed here.
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