When does inappropriate behaviour in the workplace amount to harassment?
PSA v HCPC and Leonard Ren-Yi Yong  EWHC 52 (Admin)
In a recent appeal, the Professional Standards Authority (“the PSA”) invited the High Court to overturn findings of the Health and Care Professions Council (“the HCPC”) that certain comments made by Mr Ren-Yi Yong – a social worker employed by the London Borough of Lambeth – were inappropriate but did not amount to harassing behaviour. The PSA also sought to challenge the HCPC’s findings that certain of the comments made by Mr Yong were not sexually motivated. Save in relation to one allegation, the court upheld the PSA’s appeal, and in doing so gave crucial guidance on the meaning of harassment in the healthcare workplace setting.
Over the course of around ten months, Mr Yong had made a number of unwelcome comments to female colleagues. These included asking a colleague whether she had ever had a relationship with an older man, suggesting that one of his colleagues and her boyfriend must have been “at it like rabbits”, and commenting that “the only thing that needs resurrecting around here is my libido”. The Conduct and Competence Panel found that all but one of the alleged comments (and one physical interaction) had happened as a matter of fact. It had also found that in relation to all of those actions Mr Yong had “behaved inappropriately”. However, the panel did not accept that any of those incidents amounted to “harassing behaviour”. Nor did the panel accept that any of these incidents were “sexually motivated”. Mr Yong’s fitness to practice was found to be impaired, and he was subjected to a caution order.
In reviewing the panel’s decision, the court noted that there was little to nothing in the decision as regards the definition of “harassing behaviour”. Nor had the panel been provided with much guidance by the legal assessor as to the meaning of that term. Most significantly, the panel had not been advised that, as a public authority, the HCPC was required by section 149 of the Equality Act 2010 to have due regard to the need to eliminate harassment.
The duty imposed by section 149 of the 2010 Act meant that, in determining the question of whether certain conduct amounted to harassing behaviour, the panel ought to have had due regard to the definition of harassment in that statute. S. 26(1) of the 2010 Act provides that a person (A) harasses another (B) if:
- engages in unwanted conduct related to a relevant protected characteristic, and
- the conduct has the purpose or effect of:
- violating B’s dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for B. [emphasis added]
Section 26(4) goes on to explain that in determining whether something has the effect referred to in section 26(1)(b), the following must be taken into account:
- the perception of B;
- the other circumstances of the case;
- whether it is reasonable for the conduct to have that effect.
Interestingly, the court opined that “harassing behaviour” may have a wider meaning than that set out in the 2010 Act, but that if something amounted to harassment under the Act, it would necessarily amount to harassing behaviour.
In applying this definition, the court took it to be self evident that the conduct of Mr Yong was unwanted, and that it related to a protected characteristic, namely sex (all the complainants were female colleagues). The court spent more ink in considering the effect of that behaviour in this case. In doing so, it paid close attention to the evidence of the complainants. One complainant had said that the behaviour made her “feel uncomfortable and insecure”. Another had recalled trying to “shut down” conversations with Mr Yong. The court emphasised that in considering the question of harassment under the 2010 Act, the panel should not have treated Mr Yong’s subjective purpose or intentions as definitive. The court also appears to have recognised that conduct can amount to harassment even where a complainant does not initially consider it to be such. Harassing behaviour was found in respect of one complainant who had initially “shrugged off” the comments made to her by Mr Yong, before reflecting further on them, at which point she regarded them more seriously.
However, the concept of harassing behaviour thus defined was not held to be without limits. Despite giving evidence that comments made by Mr Yong had “disgusted” and “horrified” her, one complainant nevertheless stated that she had a good working relationship with him, and that she felt comfortable going to him for advice. In deciding not to interfere in the panel’s finding that this was not harassing behaviour, the court held that Mr Yong having done something that was “offensive” did not necessarily have the effect of creating an “offensive environment”. Only the latter would amount to harassment under the 2010 Act.
In relation to the question of whether any of Mr Yong’s behaviour was sexually motivated, the court appears to have placed considerable weight on the evidence of complainants who felt that there was “something sexual” about his conduct, in circumstances where the Registrant had not attended the hearing to give evidence that his motivations were other than sexual. Whilst this may inevitably give rise to the question of whether the court has engaged in something close to reversing the burden of proof, what is clear is that it will be in the interests of any Registrant facing such charges to give an account that his or her actions were not sexually motivated in circumstances where complainants feel that his or her actions are sexual in nature.
Ultimately, the Court in this case concluded that, in relation to two of the complainants, Mr Yong’s actions were indeed sexually motivated, and the case was remitted to the Conduct and Competence.