2025-04-16 10:44:14
Mr Justice Kerr has dismissed an appeal by the General Medical Council against a suspension imposed for sexual misconduct. Of particular interest is the way the judge dealt with allegations that the registrant’s conduct amounted to sexual harassment under section 26 of the Equality Act 2010.
In General Medical Council v Mr Rajesh Shah [2025] EWHC 899 (Admin), Mr Shah was a surgeon who had faced allegations concerning Colleague A, a medical secretary. He was accused of inappropriate touching of Colleague A without her consent, between 2011 and 2021, including, at the most serious, putting his hands up her skirt, touching her genitals over her underwear, rubbing his penis up and down her legs, attempting to touch her legs, thighs and breasts and masturbating within his trousers in her presence. Mr Shah denied those charges, asserting in his defence that the sexual touching was consensual. The Medical Practitioners Tribunal accepted Mr Shah’s evidence that the sexual touching was (as Mr Shah admitted and asserted) sexually motivated, but the GMC had not proved that it was unwanted and it was therefore not sexual harassment within the meaning ofsection 26 of the Equality Act 2010
There were also allegations concerning Colleague B, a recovery nurse. It was alleged that on 11 October 2014, he put his arm round her, steered her towards and into a coffee room, then leaned into her to hug her and squeezed both cheeks of her bottom. It was further alleged that nearly five years later, on 2 October 2019, he brushed his body against her breasts, put both arms round her, put his left arm on her right hip and right buttock and squeezed her right buttock. This was alleged to be sexual harassment as defined in section 26 of the Equality Act 2010 . Mr Shah denied these charges but they were mostly found proved.
The Medical Practitioners Tribunal imposed a 12-month suspension. The GMC appealed, arguing that the sanction was insufficient for the protection of the public.
The appeal was dismissed. Mr Justice Kerr said:
“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.
It is obvious that there are degrees of seriousness where sexual harassment is committed. The example of Colleague B may test this: supposing that Mr Shah had harassed her by unwanted sexual touching ten times in five years rather than twice in five years. His sexual harassment of her would have been more serious than it was. It is obvious that sexual harassment may vary: from annoying unwanted verbal sexual innuendo at one end of the spectrum to serious sexual assault at the other.
…not every breach of the Equality Act necessarily requires a disciplinary process. The Act does not apply directly to disciplinary proceedings, though it has relevance as part of the guidance and as a measure of the standards expected of doctors dealing with female staff or other staff with protected characteristics.
It is worth saying a little more about the status and relevance of the 2010 Act in disciplinary proceedings such as these. Breaches of section 26 were included in the charges against Mr Shah …
…The 2010 Act is clearly of relevance because it appears in [sanctions] guidance and gives a good indication of what the legislature expects and therefore, probably, the public would or should regard as acceptable or unacceptable in the workplace. That is not controversial. 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.”