QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE
- and –
|(1) HEALTH AND CARE PROFESSIONS COUNCIL
(2) LEONARD REN-YI YONG
Victoria Butler-Cole QC (instructed by BDP Pitmans LLP) for the First Respondent
The Second Respondent did not attend and was not represented
Hearing date: 8 December 2020
Crown Copyright ©
MR JUSTICE GRIFFITHS :
"Where a relevant decision is made, the Authority may refer the case to the relevant court if it considers that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public."
i) Findings that, although the conduct proven against Mr Yong meant that he had "behaved inappropriately…towards female Colleagues", it did not in any case mean that he had behaved "in a harassing manner" towards them.
ii) Findings, in respect of the same conduct, that none of it was "sexually motivated".
i) Some although not all of the conduct found proven by the Panel should also be characterised as behaving "in a harassing manner". This aspect of the appeal is limited to paragraphs 1(a), 1(b), 1(d)(i), 1(d)(ii), 1(e) and 1(f) of the allegations set out on pp 2-4 of the Decision of the Panel.
ii) Some although not all of the conduct found proven by the Panel should be characterised as "sexually motivated". This aspect of the appeal is limited to paragraphs 1(a) and 1(f) of the allegations.
iii) The matter should be remitted on this revised basis for the question of sanction to be redetermined. The sanction imposed by the Panel was a three-year Caution Order. Due to changes in the regulatory régime since the Decision, any reconsideration which I order will be carried out by a different body.
Applicable legal principles
The High Court's jurisdiction
16. The PSA may refer a suspension decision of a MPT to the High Court if it considers that the decision is not sufficient for the protection of the public (section 29(4) of the National Health Service Reform and Health Care Professions Act 2002). The protection of the public includes not only matters relating to the health, safety and well-being of the public but also the maintenance of public confidence in the medical profession and the maintenance of proper professional standards and conduct (section 29(4A) of the 2002 Act).
17. The court will treat any such reference as an appeal against the relevant decision (section 29(7) of the 2002 Act). The proceedings will be governed by CPR Part 52. The court's consideration is therefore limited to a review of the decision and is not a rehearing (CPR 52.21(1)). An appeal will be allowed if the panel's decision is "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings" (CPR 52.2(3))."
52.21— Hearing of appeals
(1) Every appeal will be limited to a review of the decision of the lower court unless—
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive—
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was—
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence."
"40. In summary:
i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52 . A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.
ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.
iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note)  EWCA Civ 1642;  1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd  UKHL 23,  1 WLR 1325 at paragraph 46, and Southall at paragraph 47).
iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4) .
v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council  UKSC 64;  1 WLR 169, at paragraph 36.
vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall  EWHC 579 (Admin);  Lloyd's Rep Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC  UKPC 29;  1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".
viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56)."
"17. The question for me is whether the tribunal's finding was legitimately made. In Edgington v Fitzmaurice (1885) 29 Ch D 459 , Bowen LJ famously said that the state of a man's mind is as much a fact as the state of his digestion. Therefore, in civil proceedings that fact, the state of the man's mind, is to be proved in the usual way by the necessary body of evidence on the balance of probabilities. An appellate challenge to a finding of fact is always highly demanding. However, the state of a person's mind is not something that can be proved by direct observation. It can only be proved by inference or deduction from the surrounding evidence. It has been said that the appellate challenge, where the disputed fact has been proved by inference or deduction, is less stringent than where the challenge is to a concrete finding of fact. In other cases, however, it has been said that the standard is the same.
18. I am prepared to accept that in a regulatory appeal the appellate challenge to a finding of fact derived from inference or deduction is less stringent than a challenge to a concrete finding of fact. Generally speaking, a finding of fact, whether one of a primary concrete nature or one made on the basis of inference or deduction, can only be challenged on appeal where it can be said that the finding is wholly contrary to the weight of the evidence or that there was some fault in the decision-making process that renders the finding unsafe."
The Decision of the Panel
The Panel's decisions on the "harassing manner" allegations
"a) In relation to Worker 1, you:
i. Between approximately September 2016 and October 2016, asked if she was free to join you to the 'Shrek experience' and suggested she wore a school uniform, or words to that effect;
ii. On an unknown date in December 2016, asked whether she wanted to go to a Christmas party with you and to stay at your house afterwards, or words to that effect;
iii. On or around 26 December 2016, you sent her a "WhatsApp" media message saying "l think you are quite a unique individual and deserve a much better year. Let's catch up after work when you get back. Enjoy! X" or words to that effect;
"The Panel accepted the evidence of Worker 1 in relation to the Registrant's behaviour towards her and found the factual part of the sub- particulars proved. The Panel was satisfied that on each occasion, the Registrant did not observe the proper boundaries expected of a manager towards a junior member of staff. The Panel found that the Registrant's behaviour caused Worker 1 to feel uncomfortable and insecure. The Panel was therefore satisfied that the Registrant had behaved inappropriately. The Panel was not satisfied that the Registrant had acted in a harassing manner towards Worker 1. Accordingly, the Panel found Particulars 1(a)(i)—(iii) of the Allegation proved in part."
"b) in relation to Worker 3, between approximately April to June 2017, you:
i. Asked her, "how satisfied are you with your boyfriend, are you going to get married to him and what do you fight about" and then commented "I see a touchy subject" or words to that effect;
ii. Asked her whether she had previous relationships with men that were older than her and what she liked about these relationships, or words to that effect;
iii. Told her personal details about your extra-marital affairs and talked about a relationship you were having with a woman;
iv. Asked her where she lived and told her that if she lived in the area where you were housesitting for the weekend she could have visited you, or words to that effect;
v. Asked her when her boyfriend would be away and told her to keep the weekend free so you could do something together, or words to that effect;"
"The Panel accepted the evidence of Worker 3 in respect of these sub-particulars of the Allegation and was satisfied that the Registrant had made these uninvited comments to her. The Panel was satisfied that these comments crossed professional boundaries and had no place in the workplace. Furthermore, the Panel found that due to the disparity in power between the Registrant and Worker 3 she was put into a difficult situation where she was asked to discuss personal matters of a private nature. The Panel was satisfied that the Registrant had behaved inappropriately. The Panel was not satisfied that the Registrant had acted in a harassing manner towards Worker 3. In reaching this decision, the Panel took into account the evidence given by Worker 3 of her impression of the Registrant's behaviour and demeanour at the time the comments were made. Accordingly, the Panel found Particulars 1(b)(i),(ii),(iv) and (v) of the Allegation proved in part."
"c) In relation to Worker 4, you:
i. On or around 09 June 20167, called her into your office to talk about two young females you said were experiencing domestic violence and were helping outside of work, or words to that effect;"
"The Panel accepted the evidence of Worker 4 and was satisfied that the Registrant had this conversation with her in his office. Again, the Panel was satisfied that this conversation crossed professional boundaries and was inappropriate between a manager and a junior member of the team. The Panel accepted Worker 4's evidence that she did not perceive the Registrant to be making a sexual advance towards her. The Panel was not satisfied that the Registrant had acted in a harassing manner towards Worker 4. Accordingly, the Panel found Particular 1(c)(i) of the Allegation proved in part."
"d) In relation to Worker 5, you:
i. Asked her "How did you meet your boyfriend, I bet you were at it like rabbits", or words to that effect;
ii. On or around 13 April 2017, said "the only thing that needs resurrecting around here is my libido", or words to that effect;
iii. On or around 15 June 2017, asked if she wanted to spend time with you on Saturday afternoon and/or evening, and said, "don't answer now, think about it and let me know" or words to that effect;"
"The Panel was satisfied that the Registrant had behaved in the manner described by Worker 5 who gave thoughtful and considered evidence about these matters. The Panel was satisfied that the sexual nature of the Registrant's comments in sub-particulars 1(d)(i) and (ii) and the Registrant's unsolicited invitation to Worker 5 to spend time with him at the weekend amounted to an abuse of his position of power as a manager and clearly crossed professional boundaries. The Panel was satisfied that the Registrant's behaviour was inappropriate. The Panel was not satisfied that the Registrant had acted in a harassing manner towards Worker 5. In reaching this decision, the Panel took into account Worker 5's evidence that when the Registrant had made these comments to her, he hadn't lowered his voice or appeared awkward but seemed confident and cocky. She stated that her impression was that he liked to push boundaries and enjoyed getting a reaction out of people. Accordingly, the Panel found Particulars 1(d)(i)-(iii) of the Allegation proved in part."
"e) In relation to Worker 6, you;
i. On an unknown date between December 2016 and January 2017, asked about her relationship with her husband and said "you need to keep your husband happy, even if you are tired, you know, masturbate him" or words to that effect;
ii. On or around March 2017, told her to film herself and her husband having sex;
iii. Talked about a friend of yours to her, who is currently in a domestic violence relationship and told her that you invited her into your bed for cuddles."
"The Panel accepted the evidence of Worker 6 who gave clear and consistent evidence about these matters. The Panel was satisfied that the uninvited sexual nature of these comments caused embarrassment to Worker 6. In the Panel's view, once again the Registrant's behaviour crossed professional boundaries and failed to respect his role as a manger. The Panel was satisfied that the Registrant behaved inappropriately. The Panel was not satisfied that the Registrant had acted in a harassing manner towards Worker 6. ln reaching this decision, the Panel took into account Worker 6's evidence that, although the Registrant had caused her to feel uncomfortable and embarrassed, when asked about his motive she stated that she did not perceive him to be making any sexual advances towards her and that he appeared to be trying to give her some male advice about her relationship. She described his demeanour as open, always relaxed and jokey. Accordingly, the Panel found Particulars 1(d)(i)-(iii) of the Allegation proved in part."
"f) In relation to Worker 7, you:
i. Said to her "I know I shouldn't do this, but you could move into my flat where there is a spare room" or words to that effect;
ii. On or around 23 December 2016, you clenched your arms around her and pressed your body including your chest and/or groin against her."
"The Panel accepted Worker 7's account of this conversation with the Registrant. The Panel was satisfied that in the circumstances, it was inappropriate for the Registrant to have invited Worker 7 to move into his spare room. It was an uninvited and unwanted offer that caused Worker 7 to feel uncomfortable and vulnerable. The Panel was not satisfied that this was said in a harassing manner by the Registrant. Accordingly, the Panel found Particulars 1(f)(i) of the Allegation proved in part."
"In relation to the factual part of this sub-particular of the allegation the Panel accepted Worker 7's evidence that the Registrant clenched his arms around her and pressed his body including his chest against her. The Panel therefore found this part of the sub-particular proved. The Panel noted the inconsistencies in Worker 7's evidence in respect of whether the Registrant pressed his groin against her, in particular the body chart diagram (exhibit 2) completed by Worker 7 during her evidence. The Panel therefore found the 'and/or groin' part of the sub-particular not proved. The Panel was satisfied that Worker 7 had not consented to being hugged by the Registrant and that the manner in which he had done so had clearly caused Worker 7 extreme discomfort. The Panel was therefore satisfied that the Registrant's behaviour was inappropriate as he had clearly failed to respect Worker 7's boundaries. The Panel was not satisfied that this was done in a harassing manner. Accordingly, the Panel found Particulars 1(f)(i) of the Allegation proved in part."
The Panel's overarching findings relevant to "harassing manner"
"3) The matters set out in paragraphs 1 - 2 constitute misconduct."
"83. The Panel was satisfied, applying its judgement, that the Registrant's repeated, uninvited and inappropriate behaviour towards six junior members of his team over several months fell far short of what would have been expected in the circumstances.
84. The Panel was further satisfied that the Registrant had repeatedly breached the professional boundaries expected and required of a social worker. The Panel was of the view that the Registrant had failed to understand the power imbalance that existed and how he, as a manager, had caused junior members of the team to feel embarrassed and uncomfortable in their place of work.
85. In all of the circumstances, the Panel was satisfied that the Registrant's behaviour amounted to misconduct that would rightly be characterised as deplorable by fellow practitioners.
86. The Panel therefore, found the statutory ground of misconduct to have been made out."
The Panel's decision on sexual motivation
"2) Your conduct in paragraphs 1 a)-f) was sexually motivated."
"When considering this Particular of the allegation, the Panel had regard to the judgement in the case of Arunkalaivanan v GMC  EWHC 873 (Admin). The Panel gave careful consideration to all of the evidence it had heard in relation to the Registrant's motivation for his behaviour. The Panel had no direct evidence or written submissions from the Registrant on this point. The Panel did take into account HF's evidence that it was generally felt that the Registrant misread his audience and that the jokes he made were often inappropriate. HF also told the Panel that during her meeting with the Registrant on 27 June 2017, the Registrant also said that he had not intentionally meant to offend anyone and that he should have been more 'boundaried'. The Panel also noted that when questioned, a number of the witnesses had specifically stated that they did not perceive the Registrant to be making a sexual advance towards them. Accordingly, applying the burden and standard of proof, the Panel was not satisfied on the evidence available that the Registrant's repeated inappropriate behaviour was sexually motivated. The Panel has therefore found Particular 2 of the Allegation not proved."
The Panel's decision on sanction
i) As aggravating factors, the Panel (at para 99) noted:-
"● The misconduct was repeated over a period of 10 months;
● The misconduct involved six junior members of the team;
● There is no evidence of remediation;
● There is only limited evidence of insight; and
● There is a risk of repetition."
ii) As mitigating factors, the Panel (at para 100) noted:-
"● The Registrant apologised for his behaviour when spoken to by HF and CM in June 2017;
● No Service Users were harmed or put at risk of harm;
● The Registrant is of previous good character and has no previous regulatory findings recorded against him; and
● The Panel heard evidence that the Registrant was a good Social Worker who built a strong team and that LBL was sad to lose him as a result of these matters."
The Grounds of Appeal
i) Ground 1: The Legal Assessor's direction to the Committee in respect of what constituted "in a harassing manner" as opposed to "inappropriate" behaviour was insufficient. He failed to provide the Committee with any guidance as to how they may differentiate between the two terms and their respective gravamen. More particularly, he failed to correct the Case Presenter's concession (in response to the Committee's question) that the respective terms denoted conduct of equal gravamen. As a result, the Committee fell into error in finding that the Registrant's behaviour was not "harassing" in respect of workers 1, 3,4,5, 6 and 7. The finding was at odds with their factual findings regarding the Registrant's behaviour towards the said six workers and their responses thereto.
ii) Ground 2: The Committee failed to provide adequate reasons as to why they had concluded that the Registrant's behaviour was not "harassing."
iii) Ground 3: The direction given by the Legal Assessor regarding "sexual motivation" was insufficient. The Legal Assessor failed to direct the Committee to apply the correct test described by Mostyn J in Basson v General Medical Council  EWHC 505 Admin that a "sexual motive means that the conduct was done either in pursuit of sexual gratification or in pursuit of a future sexual relationship." Furthermore, the Legal Assessor also failed to direct the Committee that it was possible to find that the Registrant's behaviour was "harassing" but not "sexually motivated". The Conduct and Competence Committee fell into error in their analysis of whether the Registrant's behaviour had been sexually motivated and consequently their conclusion that it had been not sexually motivated. Their finding that allegations 1) a) (ii), 1) b) (ii)(v), 1) d) (iii), 1) e) (i)(ii) and 1) f) (i)(ii) were proved were all inconsistent with their conclusion that the Registrant's conduct had not been sexually motivated.
iv) Ground 4: The Committee failed to provide adequate reasons for their conclusion that the Registrant's behaviour was "inappropriate" but "not sexually motivated."
v) Ground 5: The Committee departed from the HCPC's Sanctions Policy and failed to provide reasons for doing so. Its factual findings precluded the use of a caution order, if the terms of the Policy were followed properly.
Grounds 1 and 2: "harassing manner"
"149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act (…)
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1)."
(1) A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) A also harasses B if—
(a) A engages in unwanted conduct of a sexual nature, and
(b) the conduct has the purpose or effect referred to in subsection (1)(b).
(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
(5) The relevant protected characteristics are—
i) This is evident, for example, from the findings in paras 83-85 of the Decision (which I have set out in para 38 above), that Mr Yong's behaviour was "repeated, uninvited and inappropriate", that a "power imbalance… existed", and that Mr Yong "had caused junior members of the team to feel embarrassed and uncomfortable in their place of work".
ii) It is also evident from findings in respect of each of the individual Workers.
a) Mr Yong made Worker 1 "feel uncomfortable and insecure" (Decision para 69).
b) Mr Yong's comments to Worker 3 were "uninvited" and "due to the disparity in power… she was put into a difficult situation" (Decision para 70).
c) Mr Yong's words to Worker 5 "amounted to an abuse of his position of power", were made when he "seemed confident and cocky" and were consistent with her impression that "he liked to push boundaries and enjoyed getting a reaction out of people" (Decision para 73).
d) What Mr Yong said to Worker 6 was of an "uninvited sexual nature" which "caused embarrassment" to her and "caused her to feel uncomfortable" (Decision para 74).
e) What Mr Yong said to Worker 7 "was an uninvited an unwanted offer that caused Worker 7 to feel uncomfortable and vulnerable" (Decision para 75). In relation to the Panel's finding that Mr Yong "clenched his arms around her and pressed his body including his chest against her", they were satisfied that she had "not consented to being hugged by the Registrant and the manner in which he had done so had clearly caused Worker 7 extreme discomfort" (Decision para 76).
My decision on "Harassing manner" – Worker 1
My decision on "Harassing manner" – Worker 3
"…in reaching this decision, the Panel took into account the evidence given by Worker 3 of her impression of the Registrant's behaviour and demeanour at the time the comments were made" (Decision para 70).
"35. The Panel heard evidence from Worker 3 who stated that between April and June 2017 the Registrant had repeatedly talked to her about his personal life including his relationships. She stated that during these conversations the Registrant would also ask her about her own personal life and relationships. She stated that the Registrant liked knowing details about peoples' lives. She described how she believed that the Registrant was "attempting to form another level of connection to ascertain whether there was any possibility for a more personal relationship". She described that during these conversations the Registrant had asked her whether she was satisfied with her boyfriend.
36. She told the Panel that the Registrant asked her if she would consider a relationship with an older man. She stated that these conversations took place in the Registrant's closed office. She stated that she believed that the Registrant may have been attempting to ascertain whether she would be interested in forming a relationship with him.
37. Worker 3 also told the Panel that her partner had won a trip to Hawaii through work and that the Registrant had asked her when her partner would be away and then suggested that she should keep the weekend free so that they could do something together. She stated that this suggestion made her feel very uncomfortable as she had never given any indication that she wanted to spend time with him outside of work.
38. Worker 3 stated she had discussed her concerns with her work colleagues in June 2017. She told the Panel that although she had told HF that she did not feel uncomfortable at the time of these conversations with the Registrant, on reflection she believes that they were inappropriate in a work setting and made her feel uncomfortable. She described the Registrant as trying to control the environment by initiating personal conversations. She recalled trying to shut down these conversations on a regular basis. Worker 3 stated that she was never quite sure if he was looking for a sexual/ physical relationship with her."
My decision on "Harassing manner" – Worker 5
"In reaching this decision, the Panel took into account Worker 5's evidence that when the Registrant had made these comments to her, he hadn't lowered his voice or appeared awkward but seemed confident and cocky. She stated that her impression was that he liked to push boundaries and enjoyed getting a reaction out of people." (para 73)
"39. The Panel heard evidence from Worker 5 who told the Panel that she worked with the Registrant on a daily basis. She stated that they had a good working relationship and that she felt comfortable going to him for advice. She stated that they had a laugh but his comments would often border on inappropriate. She told the Panel that the Registrant was always interested in people's personal lives and it was often a struggle to get him to focus on the work in hand.
40. Worker 5 told the Panel that in February 2017, the Registrant was asking her about her boyfriend and commented that they were "at it like rabbits". Worker 5 stated that she was horrified by this but laughed it off.
41. Worker 5 stated that on 13 April 3017, she had asked the Registrant if she could leave work early as it was the Easter holidays and had said to him "Easter is the resurrection" to which he had responded "The only thing that needs resurrecting is my libido". Worker 5 described how she felt disgusted by this comment and walked away from the Registrant.
42. [not relevant]
43. Worker 5 stated that she hadn't reported her concerns at the time in part because she rarely had supervisions with her allocated manager and also because the Registrant's behaviour and comments were the last thing on her mind as she really didn't care about what he said. She stated that she had subsequently raised matters with HF after discussing the Registrant's behaviour with her work colleagues.
44. Worker 5 told the Panel that when the Registrant had made these comments to her, he had acted like he wasn't saying anything inappropriate. He hadn't lowered his voice or appeared awkward but seemed confident and cocky. She stated that her impression was that he liked to push boundaries and enjoyed getting a reaction out of people. Worker 5 also stated that there was joking in the office and this included sexual innuendo and the occasional joke about someone's sex life but that she now felt that the Registrant's comments were "sleazy and amounted to an unfitting level of interest in personal matters".
My decision on "Harassing manner" – Worker 6
i) Mr Yong asked about her relationship with her husband and said "you need to keep your husband happy, even if you are tired, you know, masturbate him", or words to that effect.
ii) Mr Yong told her to film herself and her husband having sex.
iii) Mr Yong talked about a friend of his, who is currently in a domestic violence relationship, and told Worker 6 that he invited her into his bed for cuddles.
"ln reaching this decision, the Panel took into account Worker 6's evidence that, although the Registrant had caused her to feel uncomfortable and embarrassed, when asked about his motive she stated that she did not perceive him to be making any sexual advances towards her and that he appeared to be trying to give her some male advice about her relationship. She described his demeanour as open, always relaxed and jokey."
My decision on "Harassing manner" – Worker 7
"She stated that on an occasion before Christmas 2016, she was in the Duty Office with the Registrant, when he said to her "I know I shouldn't do this, but you could move into my flat where there is a spare room." Worker 7 told the Panel that the Registrant's manner had made her stomach churn. She stated that at the time she felt uncomfortable because he was a male and her supervisor and also because of the power he had. She stated that the Registrant was incredibly plausible but that she believed him to be manipulative. In her witness statement to the HCPC she stated:
"It was not just the Registrant saying you need a room and / have one", but everything about it was really gross. It was such a shift from being at work with someone 9am- 5pm and discussing work related issues, to him attempting to put himself into a role of 'rescuer' or 'friend' or potentially something more. It was overly intimate in what it was offering and the tone and the way it was offered. It was a line that should never be crossed, was beyond unwanted and just made me feel vulnerable."
"53. Worker 7 also told the Panel about an incident that occurred on or around 23 December 2016. (…) She stated that she was sitting at her desk in the open plan office and recalled workers gathering to say goodbye to Worker 4 who was about to go on leave. Worker 7 stated that she was busy typing but did not want to appear rude so she got up to say goodbye to Worker 4, she recalled some of the others hugging each other. She stated that she did not hug anyone as she is not that sort of a person. She told the Panel that where she comes from it would be regarded as unprofessional to hug someone at work. She stated that in nine years in the UK, she had only agreed to what she described as an "air-hug" so as not to appear rude on two previous occasions. Worker 7 further stated that she was a conservative person and even if she embraced members of her own family it would be an "air-hug". She stated that she would not hug someone in a manner that caused their bodies to make contact.
54. Worker 7 stated that she was at the back of the group when suddenly, the Registrant moved towards her. She described how he then put his arms around the top of her arms in a crab like gesture and pressed his body against her. (…) Worker 7 stated that the Registrant took her completely by surprise and she froze. She told the Panel that she had done nothing to suggest that she consented to being hugged in this manner by the Registrant. She stated that when the Registrant let go of her, he looked at her and "smirked". She told the Panel that everything after that was a blank as she was so shocked by what had happened to her. She stated that she now believes that the Registrant was smirking at her as if to say "look what I can do".
56. Worker 7 told the Panel that this incident had a significant impact upon her and contributed to her decision not to accept a full-time position with LBL. She stated that she finished working for LBL in February 2017."
Grounds 3 and 4: "sexual motivation"
Sexual motivation – Worker 1
i) In answer to a question suggesting "prior to speaking to the others you were not sure whether he was being flirty or not, but you felt uncomfortable and having spoken to the others it made you feel more?" she said:
"No, I think 1 was uncomfortable and I was sure of my feelings that he was suggesting something that I felt was inappropriate and made me uncomfortable but I think I was insecure being questioned if I had been perhaps flirty with him. I think I was still going round in those thoughts, but I felt more confident when I was speaking to others and also raising the concerns together."
I understand that to mean her evidence was that he was indeed "being flirty" and her anxiety was about whether she had given him cause for that. (Transcript in Core Bundle p 49).
ii) In her witness statement she said that, when he asked her to stay at his house after a Christmas party "I felt that perhaps he had wanted to have sex with me".
iii) In relation to the kiss or "x" at the end of the WhatsApp message, her evidence was "I just know that I would not receive an "x" from another manager. I never had a personal message from another manager writing an "x" previously." (Transcript in Core Bundle p 52).
iv) She was asked "about the issue of the Shrek Experience, when you were asked about wearing a school uniform did you feel that was sexual, or did you not feel that was sexual at the time?". She answered (Transcript in Core Bundle p 55):
"I remember I was feeling quite surprised and shocked that he suggested it. At the time I must have felt that it was something sexual but I remember thinking like even now when I think back yes, I wondered what that meant. I remember thinking what did he mean with that. My colleague said it was maybe a child ticket and maybe that was the reason but it was still uncomfortable and I remember feeling uncomfortable being asked to wear a school uniform. As I said before, I cannot say for sure it was with a sort of a sexual intent, but something made me uncomfortable and at the time I probably could not figure out why that was but I just felt uncomfortable being asked to wear a school uniform."
v) There was no evidence that it was a child ticket. It is far-fetched to assume, even in Mr Yong's favour, that it was a child ticket, not only because it is inherently unlikely that he would ask an adult to accompany him with a child ticket but because it would have been dishonest had he done so. The Decision does not engage with her evidence that "At the time I must have felt that it was something sexual", which was strongly supported by the circumstances.
Sexual motivation – Worker 7
i) "There was definitely a sexual undertone to Leonard Yong's comment" (Statement para 25, referred to on Transcript at Core Bundle p 137).
ii) On the physical contact, Worker 7 was asked: "Is there any reason you can think of why Mr Yong might have thought it was appropriate to hug you at that point?" to which she answered (Transcript in Core Bundle p 141):-
"No, and this is why I am so adamant that this was not a gesture of affection or anything and certainly on the receiving end of it, it came across to me as a sexual threat. That is how I took it and I believe that was genuinely how it was meant."
iii) In answer to the question "What did you believe his motive to be after he smirked at you?" Worker 7 said "That it was a sexual threat, this is what I can do and I took it as that it could have been more." (Transcript in Core Bundle p 144).
Ground 5: sanction
"When is a caution order appropriate?
100. Where a panel finds that a registrant's fitness to practise is impaired, the least restrictive sanction that can be applied is a caution order.
101. A caution order is likely to be an appropriate sanction for cases in which:
- the issue is isolated, limited, or relatively minor in nature;
- there is a low risk of repetition;
- the registrant has shown good insight; and
- the registrant has undertaken appropriate remediation.
102. A caution order should be considered in cases where the nature of the allegations mean that meaningful practice restrictions cannot be imposed, but a suspension of practice order would be disproportionate. In these cases, panels should provide a clear explanation of why it has chosen a non-restrictive sanction, even though the panel may have found there to be a risk of repetition (albeit low)."
"... there is a burden on medical practitioners, as there is with all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession."