Sexual motivation and harassment, without physical contact – PSA v HCPC

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Sexual motivation and harassment, without physical contact – PSA v HCPC
By: Anonymous | Published On: 2/03/21 1:06 am

Professional Standards Authority v Health and Care Professions Council (HCPC) and Leonard Ren-Yi Yong [2021] EWHC 52 (Admin)

In the case of PSA v HCPC & Leonard Ren-Yi Yong, the High Court was asked to rule on whether inappropriate comments by Mr Yong were sexually motived.

The Case

Mr Ren-Yi Yong was a social worker employed by the London Borough of Lambeth.  Mr Yong made a number of inappropriate comments to female colleagues including asking a colleague whether she had ever had a relationship with an older man, saying that a colleague and her boyfriend must have been “at it like rabbits” and “the only thing that needs resurrecting around here is my libido”.

HCPC Conduct and Competence Panel

The Health and Care Professions Council’s (HCPC) Conduct and Competence Panel concluded that Mr Yong behaved 'inappropriately' but not 'in a harassing manner', nor were his actions 'sexually motivated'.

Professional Standards Authority Appeal

The PSA brought an appeal to the High Court on the basis that, amongst other grounds, the HCPC sanction was not sufficient for the protection of the public.  The PSA argued that Mr Yong’s conduct amounted to 'harassment' and was 'sexually motivated'.  The PSA asked the High Court to quash the HCPC decision and substitute it with the aforementioned.

Ruling on “harassing behaviour”

Mr Justice Griffiths was critical of the HCPC legal assessor’s advice to the committee saying the Committee should have been reminded of its public sector equality duty under the Equality Act 2010.  In the HCPC committee decision, there was no reference to a definition of “harassing behaviour” whereas in section 26 of the Equality Act 2010, a statutory definition is provided, noting also that sex is a protected characteristic under the 2010 Act.

Subsection 4 provides guidance on matters to be considered in assessing harassing behaviour.

Ruling on “sexual misconduct”

Mr Yong did not attend the HCPC committee to give evidence neither did he take any part in the PSA appeal.  Mr Justice Griffiths drew inference from this saying: “It seems to me that this unchallenged evidence, coupled with the circumstances of the case, lead irresistibly to the conclusion that Mr Yong had a sexual motivation in saying what he did.

“I therefore consider the Panel’s failure to find a sexual motivation in relation to Mr Yong’s proven misconduct … plainly wrong on the evidence accepted by the Panel. A finding of sexual motivation will be added.”

Mr Justice Griffiths concluded that Mr Yong’s actions were indeed sexually motivated, and the case was remitted to the Conduct and Competence.

Legal Comment

This case involves a finding of impairment in relation to colleagues not patients.  This should serve as a reminder to all health and care professionals of the broad scope of fitness to practise misconduct which is not limited to issues associated with patient care.  

This case is also significant because a finding of “sexually motivated” and “harassing behaviour” was make notwithstanding the fact that one complainant, of two relevant to the ruling, had not been touched by Yong.  It is clear therefore that inappropriate sexual behaviour and impaired fitness to practise is not limited to cases of physical contact.  Clearly the circumstances of each case will determine the findings.

Finally, this case demonstrates the importance of engagement in the fitness to practise process and the value of legal advice and representation.  Whether Mr Justice Griffiths would have reached a different conclusion on the issue of “sexually motivated” behaviour had he had the benefit of evidence provided by Mr Yong is speculation.  However, he specifically made reference to the significance of the lack of evidence so one can reasonably assume the benefit of evidence would have had a bearing on the outcome of the case.

There is clear evidence that outcomes for health and care professionals are significantly improved when they engage in the process and with expert legal representation.

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Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.