[2024] UKUT 379 (AAC)

The Appellant accepted a police caution (which is an admission that an offence had taken place) for common assault in relation to his behaviours whilst working at a placement in November 2018. LM had unzipped a female colleague’s top whilst simultaneously suggesting she should take her top off after she declared that she was very hot. Other allegations made at the time which were not the subject of any police action were inappropriate touching of hands, arms, shoulders, hips, and waist of VM and two other colleagues, and that he pushed his body up against one of them and made inappropriate comments to them. All three females were 21-22 years of age at the time.

The Nursing and Midwifery Council held a professional conduct hearing as outlined at the beginning of this judgment. They heard oral evidence from 3 care workers at the home along with LM and had relevant written material. LM was legally represented at the hearing. Paragraph 16 of Schedule 3 of the SGVA 2006 provides that a person cannot make representations that findings of fact made by a competent body were wrongly made, so that the findings of the NMC are binding upon LM – but not the DBS (see paragraph 64 of XYZ v DBS [2024] UKUT 85). There were seventeen “charges” brought against LM. Those allegations which were found proven or where an admission had been made were:

That on around 15 November 2018 in respect of Colleague A that he put his arms around her, and said words to the effect of “do you want to go into the next bedroom or upstairs, don’t tell me you have changed your mind”.

That on or about 15 November 2018, he put his arm around Colleague A

That on or about 16 November 2018 he approached Colleague A and unzipped her jumper, pulled it down over her left shoulder and touched her shoulder.

That on about 16 November 2018, he approached Colleague A and put his arm around her waist, kissed her neck and said words to the effect of “I want to take you to South Africa.”

That on or around 16 November 2028, said words to the effect that “you can tell Daddy” to Colleague A and

Said words to the effect of “two service users are on sodium valproate because it gives them a large erection” and

Said words to the effect of “in South Africa they stand pulling their penis as it’s a muscle it makes it grow longer.”

In respect of Colleague B, put her hand around her waist and kissed her neck and kissed her cheek.

On an unknown date took a photograph of Colleague B and sent it to her (this was not found to be misconduct).

That on more than one occasion in the presence of Colleague D you brushed up against a female colleague and touched a female colleague’s bottom.

That these allegations above (except for the photograph) breached professional boundaries and were sexually motivated to seek sexual gratification and/or to pursue a future sexual relationship.

That in relation to those allegations proven in respect of Colleague A, that this was unwanted conduct amounting to harassment by creating an intimidating, hostile, degrading, or offensive environment.

That in respect of Colleague B, this was unwanted conduct amounting to harassment and had the effect of violating B’s dignity and/or creating and intimidating, hostile, degrading, humiliating or offensive environment for Colleague B.

As a result of the above, the NMC imposed a six-month suspension order. It should be noted that the Panel were informed (page 57 of 60 of the GMC decision) that this was an “isolated period in a long career and there is no evidence of repetition”. The panel had regard to the sexual misconduct, you had undertaken appropriate courses and demonstrated a good level of insight into your behaviour, and the panel was satisfied that the misconduct in this case in this case was not fundamentally incompatible with him remaining on the register (page 58 of 60).

In respect of this ground, LM was cross examined by the DBS. In his oral evidence identifying that he behaved unprofessionally and crossed a boundary, but he intended it to be banter or teasing. He was also cross examined on the basis that his witness statement of 2022 did not accept that he had pulled her top from his shoulder whereas in the account given by Colleague A was not that the unzipping took place in the context of “banter” but was when she was putting in some bed blocks and you approached her from behind. He did not seem to accept in his cross examination by counsel for the DBS that he was seeking to minimize his behaviour in the way that he described the assault against A in his witness statement.

LM also accepted that he held inappropriate conversations with staff members, some of whom he had only known for a few weeks, and that it was inappropriate for him to say in a workplace that “he slept better after sex.” He intimated that the complaints made against him may, in part, be caused because the young women concerned were white and when he worked with women from different ethnicities he had no problems.

When trying to explain his sexual conversations with staff members and in particular his discussion about sodium valproate, he sought to contextualise the discussion by saying that 2 female care staff were laughing amongst themselves about sex and then spoke about sodium valproate which was how the discussion arose about abnormally large penises amongst service users. In fact, the words used at the hearing were that “service users had massive manhood’s.” Leaving aside whether or not it is clinically accurate, we found that this showed no insight into how to speak appropriately about the users of the service where he worked, who had learning disabilities. As he was in a senior position of responsibility, he would set the tone for the nature of discussion. He then went on to discuss further discussion about whether women have “vaginas like a bucket” between himself and his colleagues if they take the drugs, identifying that he had not observed this. He described this as an “ill-advised conversation.” We recognise that conversations about sex or sexual behaviours do take place between staff, and that a degree of bawdy humour may provide some levity in difficult or stressful situations. LM sought to persuade us that this conversation was speaking about the effects of medication (likening it to the discovery of Viagra as a side effect of medication designed for other purposes). We do not consider that analogy was apt and shows to us a marked lack of insight into what is or is not appropriate behaviour in the workplace.

We consider that the evidence demonstrates on the balance of probabilities that he did demonstrate sexualised behaviour with colleagues in 2018 and that no mistake of fact was made. We also note that in his witness evidence from 2022 he denied all allegations bar those in respect of 15 November 2018, and even then he sought to minimize the “unzipping” by seeking to place it as a joke which went too far, which is directly contradictory to the account given by Colleague A (whom the NMC believed).