Harith Alsiwan Altemimi v General Medical Council

On an appeal under section 40 of the Medical Act 1983, the High Court should respect the tribunal’s advantage in hearing live evidence and interfere with factual findings only where justified by objective grounds, inadequate reasoning or conclusions outside the generous ambit of reasonable disagreement.

“Words to that effect” may fairly particularise an allegation where they preserve the unmistakeable substantive content of the words alleged. Whether conduct is sexualised depends on its context and circumstances, including its cumulative effect. Sexual motivation may be inferred where sexualised conduct is persistent, covert or otherwise inconsistent with innocent explanations. Sexual harassment under section 26 of the Equality Act 2010 requires consideration of the claimant’s perception, all the circumstances and the reasonableness of the effect.

The General Medical Council brought disciplinary proceedings against a consultant physician before a Medical Practitioners Tribunal. The Tribunal found proved a number of sexualised comments and interactions involving two colleagues, found the conduct sexually motivated and amounting to sexual harassment, and imposed a six-month suspension.

The appellant challenged the Tribunal’s primary factual findings, its conclusions that the conduct was sexualised and sexually motivated, its findings under section 26 of the Equality Act 2010, the adequacy of its reasons, and the fairness of allegations containing the phrase “or words to that effect”. The central issue was whether any of those findings disclosed an error justifying appellate intervention.

1. The appeal was dismissed. The Tribunal’s findings and reasons were lawful, adequately explained and within the range of conclusions open to it. The appellant was ordered to pay the GMC’s costs in the agreed sum of £25,000.
2. The phrase “or words to that effect” did not make the allegations insufficiently particularised or unfair. It allowed proof of words having the same unmistakeable substantive content as the quoted words. The appellant knew the case he had to meet and could address whether the conduct was sexualised, sexually motivated or sexual harassment [11].
3. The appellate function under section 40 of the Medical Act 1983 is not a rehearing. The appellant bears the burden of showing that the Tribunal’s decision was wrong or unjust. The High Court must give appropriate weight to the Tribunal’s advantage in seeing and hearing witnesses and should interfere only on objective grounds, where the finding exceeds the generous ambit of reasonable disagreement, or where the Tribunal failed to take proper advantage of its position. Reasons are adequate if the court can understand why the decision was reached from the determination and underlying materials [15]-[17].
4. The Tribunal was entitled to assess the conduct cumulatively as well as individually. Repeated and persistent references by a senior consultant to a student nurse concerning how “naughty” she was, in a private room and against a substantial power imbalance, could properly be characterised as sexualised. Innocent explanations, including friendliness, recruitment and the use of “naughty” to mean cutting corners, had been considered and rejected [24], [27].
5. Sexual motivation means conduct undertaken in pursuit of sexual gratification or a future sexual relationship. It may be inferred from the nature, persistence and circumstances of sexualised conduct. The Tribunal was entitled to consider related allegations together where they disclosed a common theme, including covert comments and whispered remarks [27], [56].
6. For section 26 sexual harassment, the Tribunal correctly considered whether the conduct was unwanted, whether it was of a sexual nature, the claimant’s perception, all the circumstances and whether the resulting effect was reasonable. A person need not respond by an express complaint where words, persistence or body language indicate that conduct is unwanted. The allegations could properly be assessed as a whole rather than being artificially divided into isolated incidents [30], [59].
7. The Tribunal was not required to adopt a blanket view of a witness’s reliability. Findings that some allegations were unproved did not require a finding that the witness had lied or that all other evidence was incapable of reliance [37].

High Court (Administrative Court): The appeal from the Medical Practitioners Tribunal’s determination was dismissed. The Tribunal’s findings of fact, sexual motivation and sexual harassment were upheld. The Tribunal’s six-month suspension was not separately appealed and had been stayed pending the appeal.