Professional Standards Authority for Health And Social Care v Health And Care Professions Council & Anor

A statutory disciplinary appeal under National Health Service Reform and Health Care Professions Act 2002 is an appeal by way of review, not a rehearing. The court may correct material errors of law and fact, while showing particular caution before disturbing primary factual findings based on witness credibility.

For an HCPC disciplinary panel, conduct falling within the statutory definition of harassment in Equality Act 2020 necessarily amounts to behaving in a harassing manner. The statutory test is concerned with the purpose or effect of unwanted conduct, and lack of intent does not prevent harassment being established by its effect. Whether conduct creates an offensive environment remains a question of fact and degree.

The Professional Standards Authority referred an HCPC Conduct and Competence Panel decision to the High Court under section 29 of the National Health Service Reform and Health Care Professions Act 2002. The Panel found that Leonard Ren-Yi Yong had committed misconduct towards several junior female colleagues, but did not find that the conduct was harassing or sexually motivated. It imposed a three-year Caution Order.

The PSA challenged those findings and the sanction. The active parties agreed that some findings should be added and that sanction should be reconsidered, but Mr Yong took no part. The central issues were whether the Panel had erred in law or reasoning when assessing harassment and sexual motivation, and whether sanction should be remitted.

1. The appeal was allowed in part. The court reviewed the Panel’s decision under CPR Part 52. The appeal was not a rehearing. Primary findings based on witness evidence attracted considerable respect, but the court could draw its own inferences from established facts and correct material legal errors.
2. The HCPC was a public authority subject to section 149 of the Equality Act 2020. It therefore had to have due regard to the statutory definition of harassment in section 26. Conduct within that definition necessarily constituted behaviour in a harassing manner for the purposes of the disciplinary proceedings.
3. The section 26 test required unwanted conduct related to sex, having the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The test was alternative in structure: absence of an intention to harass did not prevent harassment being established by the effect of the conduct. The victim’s perception, the circumstances, and the reasonableness of the effect were relevant.
4. Applying the Panel’s primary findings, the court added findings that Mr Yong had acted in a harassing manner towards Workers 1, 3, 6 and 7. In relation to Worker 5, the comments were offensive, but the evidence did not establish with sufficient confidence that they created an offensive environment within section 26. The court therefore left that part of the Panel’s decision undisturbed.
5. The Panel’s broad-brush reasoning on sexual motivation failed to engage with the evidence supporting that conclusion. The court added findings of sexual motivation in relation to the conduct towards Workers 1 and 7.
6. The sanction could no longer stand because it had been based partly on the absence of harassment and sexual motivation. Sanction was remitted to Social Work England, which had replaced the HCPC for that purpose. The HCPC was ordered to pay the PSA’s costs of £20,000. Mr Yong was ordered to pay the HCPC £1,000 for costs caused by his failure to acknowledge service and notification of the hearing.

High Court (Administrative Court): The PSA referred the HCPC Panel’s decision under section 29(4) of the National Health Service Reform and Health Care Professions Act 2002. The appeal was allowed in part under Civil Procedure Rules 1998, CPR Part 52. The sanction issue was remitted to Social Work England.