Stephen Brassington recently represented Dr Shah (with some assistance from myself) in the High Court and scored a signal triumph. At the heart of the case was this question: can a doctor’s harassment of a female colleague in the workplace – contrary to the Equality Act – nonetheless fall short of the threshold of misconduct?
Yes it can, according to Kerr J.
Dr Shah faced a number of allegations from Colleague A and B. The Tribunal rejected much of Colleague A’s evidence. Dr Shah did, however, admit he had called her “a good girl” on occasions, and that he called one or more female colleagues “bird”. This constituted harassment related to sex. In relation to Colleague B, the Tribunal found the Respondent inappropriately touched her without consent. In October 2014, he put his arm around her shoulder, leaned in to hug her, and squeezed her bottom. In October 2019, he brushed his body against her breasts, put his hand on her hip and squeezed her bottom. This constituted sexual harassment and was sexually motivated. Of course, the Tribunal considered these acts did amount to misconduct, justified impairment, and ultimately led it to imposed a sanction of 12 months suspension with review.
On appeal, the GMC argued that the findings at misconduct were wrong. It noted “The tribunal failed to appreciate the seriousness of the finding of breach of the Equality Act 2010 and the importance of eliminating sexual harassment from the workplace”. This legislation “sets a standard for workplace behaviour, breach of which – in this case – could not be fairly characterised as other than serious”.
Kerr J was unimpressed. He observed,
“Where a tribunal has sat for 13 days, considered hundreds of pages of documents, heard detailed oral evidence, heard erudite submissions and makes no error either when directing itself on the law or in finding the facts, it is doing its job rightly, so far. That does not, of course, exclude errors of principle or approach or the drawing of unreasonable inferences or failure to draw necessary inferences, but it is a good start.”
There was no reason to find that the Tribunal was bound to find such conduct constituted misconduct. This was akin to a jury question about which reasonable people could disagree. As Stephen argued, the facts were more nuanced than the GMC’s submissions implied. The Tribunal had found Dr Shah used the phrase “good girl” – admittedly inappropriately – as a term of praise. He had used the word “bird” – again inappropriately – when he could not remember a female colleague’s name. There was no sexual motivation for such conduct. Kerr J observed:
“Once it is recognised that there are degrees of misconduct, including conduct amounting to sexual harassment, it has to be accepted that there is a spectrum and there must within that spectrum be some room for conduct that is not serious, even if it is sexual harassment. That may be a difficult and embarrassing thing to say or for the GMC to accept, rightly concerned as it is to protect the dignity of its female workforce. It is, however, what the tribunal found in this case. I do not see any flaw in that finding… I agree with Mr Brassington that not every breach of the Equality Act 2010 necessarily requires a disciplinary process.”
He went on to make some general observations about the application of the Equality Act in professional discipline proceedings. The Act gives relevant guidance in looking at the appropriateness of behaviour in the workplace:
“But one must be careful not to overstate the relevance of the 2010 Act. It is not a trump card leading to an automatic finding of serious misconduct, still less automatic erasure.
The provisions of the 2010 Act create statutory causes of action in tort. The conduct of a doctor in a particular case could be just as much deplorable sexual harassment if the causes of action in tort had never been enacted. The fact that a legal label fits the doctor’s conduct does not change what the doctor did and did not do. Many wrongs in our society contravene more than one law. The appetite for adding to the list of legal labels to describe wrongs is very strong but it is still the same conduct being judged…
The tribunal does not apply the wording of section 26 of the Act to determine the issue of impairment or the appropriate sanction. The doctor’s conduct is judged according to the regime laid down in the Medical Act 1983, the relevant Fitness to Practise Rules (which were not in the authorities bundle) and the Sanctions Guidance.”
The GMC also contended that the decision to suspend was wrong in any event. It criticised the Tribunal’s analysis of insight and risk of repetition at some length. Amongst its criticisms, the GMC considered the Tribunal had analysed risk of repetition before considering the question of insight. The court commented:
“I reject the dogmatic proposition that the assessment of risk must always come last in the chain of reasoning and that remediation then insight (or insight then remediation?) must come before the assessment of risk. They are, as Mr Brassington said, separate concepts but they often, indeed usually, overlap on the facts. It is up to the tribunal to apply the Sanctions Guidance and the GMC did not point to provisions in it mandating any particular methodology or order of play, provided the facts are found before impairment is considered and impairment is considered before sanction is considered…
Nor was it wrong for the tribunal to measure risk of repetition by, alongside other relevant considerations, the improbability that Mr Shah would throw away his career or expose himself and his family to shame and ignominy. An absence of risk of repetition does not have to be driven wholly by remorse, shame or self-loathing about past conduct; just as offenders leaving prison may think twice about reoffending not just out of sympathy for their possible future victims.”
The criticisms of the Tribunal reasons at times amounted to the overly technical, forensic nitpicking deprecated in cases like Bedesha and Uppal. As per Bawa-Garba, in imposing 12 months suspension the Tribunal had made an evaluative, multi-factorial judgment which it was in a far better position to make than the High Court, and which was well within the bounds of what a reasonable tribunal could do.
It may be hoped this judgment gives the GMC pause for thought – particularly when charging misconduct in the workplace. In a similar way, regulators used to labour the seriousness of dishonesty without recognising adequately that this word covers a broad range of misconduct. So too must harassment or sexually motivated misconduct. To attach more weight to the label, rather than the substance of the doctor’s actions, inevitably leads to error.
SUMMARY In 2017 a 24-year-old woman, Louella Fletcher Michie, died at the Bestival Music Festival,…
On the 3rd November 2020, Kadian Nelson abducted and raped a 13 year old girl…
