Mr Collins Esona

Facts Proved:  Particulars 1a, 1b, 1c, 1d (in relation to “bullied” only), 2a, 2b, 2c, 2d, 2e, 2f, 2g, 2h, 3a, 3b, 3c, 4, 5a, 5b, 6 (in relation to 2a, 2b, 2c, 2d, 2e, 2f, 2g, 3b, 3c)

Facts Not Proved: Particulars 1a, 1b, 1c, 1d (in relation to “harassed” only), 6 (in relation to 3a)

Grounds: Misconduct
Fitness to Practise Impaired: Yes
Sanction: Suspension Order for 12 months

Preliminary Matters
Application to amend the Allegation
1. Mr Bridges for the HCPC applied to amend the Allegation.   Notice of the proposed amendment had been sent on 4 December 2019 to the Registrant at his registered address.  Mr Bridges submitted that the proposed amendment was a minor one to better reflect the evidence he intended to call in respect of Particular 5 of the Allegation.   Mr Nulty for the Registrant did not object to the proposed amendment.
2. The Panel has received and accepted legal advice.   It has considered whether the proposed amendment causes any unfairness or prejudice to the Registrant. The Panel has decided to grant the application as it is satisfied that there will be no unfairness or prejudice to the Registrant.
Amendment to Special Measures Direction made on 12 March 2020
3. The Panel has agreed to amend a special measures direction made on 12 March 2020 in relation to the witness, Colleague 2.   The intention of the original direction was for Colleague 2’s evidence to be given via video link in the same building in which the hearing was being conducted and for the Registrant to be screened during Colleague 2’s evidence.  This was to ensure that neither the Registrant nor Colleague 2 could see each other during Colleague 2’s evidence but that all other participants in the hearing, including the Registrant’s representative, could see the witness.   As this hearing is being conducted remotely due to the Covid-19 situation, this special measure direction is no longer appropriate.  An alternative special measure has been agreed between the parties which is designed to achieve the same result.   The Panel has approved the following amended direction:  when Colleague 2 gives her evidence, the Registrant will attend the remote hearing via telephone link and from a different room to his representative.   In this way neither Colleague 2 nor the Registrant will be able to see each other but all other participants will be able to see and hear Colleague 2 give her evidence.   
Background
4. The Registrant is a Biomedical Scientist (BMS) who was employed as a Band 6 BMS by Royal Liverpool and Broadgreen University Hospital NHS Trust (the Trust) from April/May 2016 until his resignation on 1 March 2018.  He was based in the Routine Haematology Laboratory at the Royal Liverpool Hospital (the Hospital) where his main duties were the processing of patient samples, management of workload and authorisation of results.   As a result of two incidents which took place on 1 August 2016 and 5 September 2016, the Trust began an internal investigation into the Registrant’s competency.   He was started on a performance improvement plan in November 2016.  
5. Further concerns relating to allegations of bullying and harassment within the department, were raised by three of the Registrant’s colleagues.  In October 2017, a further internal investigation was carried out into these additional allegations.    On 6 April 2018, the Trust referred the Registrant to the HCPC.
Decision on Facts
Evidence
6. The Panel has heard evidence from six witnesses called by the HCPC.   It has also heard evidence from the Registrant and a witness called on his behalf and it has received testimonial evidence.  Both parties produced documentary evidence.   The evidence produced by the HCPC includes hearsay statements in the form of signed interview transcripts which were obtained during internal investigations carried out by the Trust.   The Panel has received and accepted legal advice in relation to how it should approach hearsay evidence.   Following that advice, the Panel has reviewed the hearsay evidence with great care and has concluded that it is accurate, reliable and credible.   
7. At the relevant time, Colleague 1 was employed by the Trust as a Specialist Biomedical Scientist in Haematology.   She was based in the Routine Haematology Laboratory at the Hospital where she also trained staff in the Trust’s internal procedures, a training programme which was designed to make sure that new BMS staff, regardless of their previous experience, could understand and follow these procedures and competently operate and be familiar with the complex conditions encountered at the Hospital.  The Panel found Colleague 1’s evidence to be very clear, reliable and credible.   She was professional in her approach and had good recollection of what had occurred and how this had affected her.  
8. SB is a registered BMS and was employed by the Trust as the Deputy Routine Haematology Manager at the Hospital between December 2014 and January 2018.   She was the Registrant’s Line Manager and responsible for supervising him and managing his training.  She was also responsible for overseeing the Registrant during the capability pathway process which began in November 2016 to address competency issues that had arisen.   The Panel consider that SB was very clear, fair, objective and balanced in her evidence.    She was professional in her approach, knew what she was doing and maintained an appropriate distance from the situation that was developing with regard to the Registrant’s training.  
9. Colleague 2 is employed by the Trust as a registered BMS within the Haematology and Transfusion Department at the Hospital.   She started working at the Hospital at the same time as the Registrant in May 2016, and worked as a Medical Laboratory Assistant (MLA) for one year before becoming a trainee BMS.   The Panel found her to be a clear and credible witness in her account of what the Registrant had said to her.   There were inconsistencies in Colleague 2’s evidence as to when it was that the Registrant had made the alleged comments to her.   The Panel notes that in her witness statement, Colleague 2 was clear as to when both she and the Registrant had been on sick leave from the Trust.   The Panel considers that Colleague 2 did her best to give accurate timings for events that occurred some years ago and is satisfied that any inconsistency over dates does not in any way undermine her credibility with regard to what it was that the Registrant had said to her.
10. Colleague 3 has been employed by the Trust as a Registered BMS at the Hospital since April 2016.   She had previously worked as a Medical Laboratory Assistant (MLA) at Frimley Park Hospital where she had first met the Registrant.   At that time, he was working as a locum BMS.   Colleague 3 completed the Trust’s internal training plan and began to work autonomously in her BMS role in February 2017.    The Panel found Colleague 3 to be a credible and clear witness whose evidence was detailed.
11. BR is employed by the Trust as the Head of Corporate & Administrative Services at Liverpool Clinical Laboratories.   In October 2017, she was appointed as the Investigating Officer in relation to a complaint against the Registrant of harassment made by Colleague 1.  Later BR was appointed as Investigating Officer into inappropriate comments alleged to have been made by the Registrant to Colleague 2.  This second complaint had emerged during the course of BR’s investigation into Colleague 1’s complaint, and BR was asked to treat it as part of the same investigation.    During her investigation, BR interviewed 13 people (including Colleagues 1, 2 and 3, as well as the Registrant) and she produced signed and dated written records of those interviews as part of her Investigation Report.   Although the Registrant attacked the integrity of her internal investigation, the Panel finds that it was conducted professionally and in good faith.   The Panel found BR to be a credible and professional witness and the Panel had no reason not to believe her evidence.
12. CC is a registered BMS and employed by the Trust as a Medical Microbiology Department Technical Manager.  In November 2016, CC was appointed as the Investigating Officer into an incident on 5 September 2016 involving the Registrant.   On that date, the Registrant had been  based for the day at the Trust’s Broadgreen Hospital laboratory and it was alleged that he had carried out a task despite not being signed off as competent for this task.   CC interviewed 7 people (including SB and the Registrant) and he produced signed and dated written records of those interviews as part of his Investigation Report.  The Panel found that CC gave little direct evidence of the issues in this case.  He was credible, professional and the Panel found no reason not to believe his evidence. Like BR, he had a job to do and he did it within his instructions.   He was a senior member of staff who knew the relevant procedures and applied them appropriately. 
13. The Panel has accepted as credible the hearsay evidence it has received from the members of staff who were interviewed as part of BR and CC’s internal investigations.  It does not propose to refer to all the hearsay evidence in its determination but will refer to the following people : 
i) LSAM who was employed by the Trust as the Haematology Service Lead.  Colleague 1 said it was LASM who advised her to keep a diary to record competency issues regarding the Registrant.   LSAM did not recall giving this advice but confirmed that it was something she was likely to have done.   LSAM also confirmed that she had been told by a member of staff about inappropriate comments made by the Registrant and she had told the member of staff (who the Panel know to be Colleague 2), to make a written record of this.  
ii) JL who was employed by the Trust as the Haematology and Coagulation Laboratory Manager.  JL had been made aware by Colleague 2 of comments made by the Registrant to her and she had suggested that Colleague 2 should make a written record of her concerns.
iii) Another JL who was a member of staff and witnessed an incident where the Registrant had raised his voice and shouted at Colleague 1.
iv) OH who was a member of staff who usually worked in the Transfusion Laboratory.   She had witnessed an incident in the Haematology Laboratory where she had seen the Registrant being aggressive towards Colleague 1 and standing over Colleague 1.   OH had sent an email about this to LSAM.   
v) PC who was a trainee BMS at the same time as the Registrant.   He witnessed an incident between the Registrant and Colleague 1 where because of the Registrant’s aggressive behaviour, PC had walked over to make sure that Colleague 1 was alright.
vi) CM is a Band 6 BMS based at Broadgreen Hospital who dealt with an incident involving the Registrant on 1 August 2016 which resulted in CM submitting an Internal Error Form.
vii) AB is a Band 6 BMS, based at Broadgreen Hospital and was supervising the Registrant on 5 September 2016 when an incident occurred.  
14. The Registrant gave evidence.   He concluded his evidence at the end of the first week of the case.   On the following Monday morning, Mr Nulty applied for the Registrant to be recalled, to give further evidence and to make a statement.   Mr Bridges for the HCPC did not object to this.   The Panel granted Mr Nulty’s application.   The Registrant was recalled and stated that he now admitted Particulars 1, 4 and 5 of the Allegation.   The Registrant stated that having heard the evidence including that of CD who was called on his behalf, and having reflected on it over the weekend, he could now see that the problems he was having in being signed off were partly of his making and had he recognised this at the time and listened to Colleague 1, he might have been able to do something about it    While the Panel accepts the Registrant’s late admissions, it cannot avoid the conclusion that the Registrant has had many months to consider and reflect upon the evidence served on him by HCPC.   When the Registrant initially gave evidence, he came across to the Panel as someone who has an inflated view of his own importance.   As a Band 6 qualified BMS, the Registrant considered that those less qualified than he was, owed him due deference regardless of their competency.   It was clear that he considered himself to be superior to Colleague 1 as in less than 1 hour, he had concluded that Colleague 1 had formed an instant “hatred” of him and he demanded a different approach to his training. The Registrant also claimed that witnesses had “conspired” to damage his career and to get rid of him from the Trust. He further complained that the investigation conducted by BR was part of this “conspiracy”.   
15. The Panel takes the view that the Registrant’s evidence was underpinned by a feeling of unwarranted superiority.  He was arrogant about his capabilities.    The Panel has made all due allowance for the fact that this hearing is taking place virtually, but it takes the view that when the Registrant gave evidence he raised his voice on many occasions and was very determined to put his points across even when they were not relevant to questions he had been asked.   It was not so much that he was being evasive but that he was not listening to the questions and answering them.  The Panel is unclear precisely what it was that changed over the weekend and caused the Registrant to admit Particulars 1, 4 and 5 and offer apologies to his colleagues, after having accused them of colluding to get rid of him from the Trust.  But what is clear is that the Registrant must have been giving untruthful evidence to the Panel regarding those Particulars of the Allegation.     The Panel therefore takes the view that it cannot place much weight on the Registrant’s evidence not only because it accepts that the witnesses called by the HCPC gave truthful and reliable accounts to the Panel, but also in light of the fact that the Registrant must have lied to the Panel in his original evidence.
16. CD is a Band 7 BMS who is employed by the Trust and was based in the Coagulation Laboratory at the relevant time.   He had been involved in the Registrant’s training in coagulation and confirmed that the Registrant had been signed off as competent in coagulation.   He accompanied the Registrant as his Union Representative on the occasions when the Registrant was interviewed during internal investigations.    He also acted as the Registrant’s mentor.   The Panel found CD to be a credible witness who gave clear, professional, objective, and independent evidence of how the Registrant had behaved in the coagulation laboratory.   CD had some experience of internal investigation procedures and confirmed that there was nothing irregular about the procedures used by BR and CC.  
Particular 1
17. The Panel notes that the HCPC did not produce evidence of the Trust’s policy in relation to Bullying and Harassment even though the internal investigation conducted by BR was said to be conducted in accordance with it.   The Panel has taken bullying to mean offensive, intimidating, malicious or insulting behaviour involving the misuse of power that can make a person feel vulnerable, upset, humiliated, undermined or threatened.   It understands that power does not always mean being in a position of authority but can include both personal strength and the power to coerce through fear of intimidation. The Panel has received and accepted legal advice in relation to “harassment” which was based on the definition in the Equality Act 2010.  
18. The Panel has approached Particular 1 by first considering whether it was more likely than not that the matters alleged in sub-particulars a) to d) had occurred before going on to consider whether the stem of Particular 1 was proved in relation to any or all of the alternatives alleged.    The Panel is satisfied that at the relevant time, while registered as a Biomedical Scientist (BMS), the Registrant was employed at the Liverpool Clinical Laboratories, part of the Trust.  
Particular 1a – was found proved in relation to “bullied” and not proved in relation to “harassed”
19. The Panel accepts the evidence of Colleague 1 that not only did the Registrant raise his voice, but he also shouted at her.   Colleague 1 referred to a specific incident which occurred very early on during her training of the Registrant.  Colleague 1 described discussing the Registrant’s answers to 90 competency questions she had given him which were based on patient results.   These were usually given to trainees and new members of staff at the end of their training period as they were designed to show that the Trust’s laboratory procedures had been understood and also that the  person concerned had reached the required level of competency  to be signed off to work autonomously and to authorise results.   Colleague 1 explained that the Registrant as he was a qualified Band 6 BMS, had been keen to be signed off quickly so that he could start to authorise patient results.   He had therefore been allowed to complete the competency questions at the start of his training period.   The Panel accepts Colleague 1’s evidence that when she discussed the Registrant’s answers to the first five questions, he seemed to her to have a poor working knowledge of haematology.   The Panel accepts Colleague 1’s evidence that when she questioned him about his incorrect answers, the Registrant got more and more agitated and complained that he did not like Colleague 1’s training method and said that he liked to keep his knowledge in his head.   The Panel accepts Colleague 1’s evidence that although she is deaf and has to wear hearing aids, she was able to see from the Registrant’s demeanour that he was raising his voice and that this then led on to his shouting at her.  
20. The Panel notes that Colleague 1’s evidence was supported by the hearsay evidence of JL (a member of staff), who had been filing reports in the utility laboratory room which is also used as a training room.   JL stated that this incident had been in 2016 and it appeared to her that Colleague 1 was seeing if she could sign off the Registrant as competent as she was aware that the Registrant had worked as a BMS elsewhere and just needed familiarising with the Trust’s processes.  JL had heard the Registrant raise his voice to Colleague 1 and shout at her when Colleague 1 had asked him some questions.   She recalled the Registrant telling Colleague 1 that she was wrong and that he did not like her asking him questions.  
21. The Panel accepts the evidence of Colleague 1 that she had been asked by LSAM to keep a diary recording any issues of competency regarding the Registrant.  The Panel has seen this diary and read the various entries made by Colleague 1 and also by SB.  Colleague 1 recorded in the diary an incident on 4 January 2017 and gave evidence about this to the Panel.   Colleague 1 explained that she had shown various colleagues who were in the laboratory that day, including the Registrant, an interesting sample.   This sample had been received from a General Practitioner (GP) and showed an abnormally high white blood cell count which indicated Chronic Leukaemia.   The Registrant did not agree with this analysis and insisted that the sample was from a post-operative patient.   When Colleague 1 told him he was wrong, the Registrant became angry, raised his voice to her and repeatedly asked her if she was calling him a liar.  Colleague 1 said that because of the Registrant’s behaviour, she had asked him to go back to the coagulation bench, which he did.  Colleague 1 described this as being a “bad day” and said she had felt “quite intimidated” by the Registrant’s behaviour. Colleague 1 said that another BMS colleague, PC had come over to see if she was alright.   The Panel has seen and accepts the hearsay evidence of PC that there was one occasion where as a result of hearing the Registrant raise his voice to Colleague 1, he had gone over to Colleague 1 to see if she was alright.  PC described the Registrant’s behaviour towards Colleague 1 as being aggressive and said that the Registrant was standing over Colleague 1 who had remained sitting.
22. The Panel also accepts the evidence of Colleague 2 who stated that she had heard the Registrant raising his voice towards Colleague 1 when Colleague 1 was trying to train the Registrant.   Colleague 2 also stated that on a couple of occasions, she heard the Registrant shouting at Colleague 1.   Colleague 2’s evidence was that despite the haematology laboratory room being a noisy workplace which was the length of about three cars, she had still heard the Registrant and this had made her look up from her work to see what was happening.  
23. The Panel also accepts the evidence of Colleague 3 that she had heard the Registrant shouting at Colleague 1 on more than one occasion.   Colleague 3 referred to one specific incident when she had been working on the coagulation bench and she had heard the Registrant shouting at Colleague 1.   This had caused Colleague 3 to go over to Colleague 1 on the pretext of asking her something so as to remove Colleague 1 from the situation.  
24. The Panel has also seen an email dated 17 July 2017 from OH to LSAM regarding an incident she had witnessed involving the Registrant and Colleague 1.  OH was interviewed as part of BR’s internal investigation and the Panel has seen and accepts OH’s hearsay evidence as set out in the transcript of that interview and in her email.   OH stated that she was recruited at the same time as the Registrant and worked in the Trust’s Transfusion Department.   This meant that she did not work in the same laboratory room as the Registrant very often. On 17 July 2017, OH was sat at the computer next to Colleague 1 who was working through the results on PLI lists with the Registrant. OH said that Colleague 1 was asking the Registrant about a particular result when she heard the Registrant shout at Colleague 1 that what she was saying was nonsense.   OH described the Registrant’s attitude and demeanour towards Colleague 1 as being aggressive.
25. The Panel notes that at the outset of the proceedings the Registrant denied Particular 1a).   During his evidence, the Registrant did state that because Colleague 1 was deaf, “you need to shout”.   However, the Panel noted that when Colleague 1 was giving evidence there was no need for the Panel or anyone to raise their voices.  When the Registrant was recalled and gave further evidence, he admitted Particular 1 in its entirety including the allegation of harassment.  In reaching its decision in respect of Particular 1a) the Panel has relied on the Registrant’s admission.   
26. The Panel is satisfied that the Registrant’s conduct towards Colleague 1 in raising his voice and shouting at her was both physically intimidating and aggressive and that it amounts to bullying behaviour.   It accepts Colleague 1’s evidence that she felt intimidated, upset and undermined.  
27. The Panel is not satisfied that the Registrant’s conduct towards Colleague 1 also amounts to harassment.    While it is clear from the evidence that the Registrant had an issue with showing respect for certain female members of staff, the Panel has decided that the Registrant did not behave as he did towards Colleague 1 because of her age, sex or disability.   The Panel has concluded that the Registrant acted as he did because he did not like Colleague 1’s approach to training.   In these circumstances, the Registrant’s unwanted conduct towards Colleague was not in relation to one of the protected characteristics under the Equality Act 2010 and the Panel is not satisfied that the HCPC has discharged the burden of proving Particular 1a as regards harassment.  
28. Accordingly, the Panel finds Particular 1a proved as to bullying and not proved as to harassed.
Particular 1b – was found proved in relation to “bullied” and not proved in relation to “harassed”
29. The Panel accepts the evidence of Colleague 1 that on the occasion when she was taking the Registrant through the answers he had given to the 90 competency questions, the Registrant not only raised his voice and shouted at her, he had also stood over her in an increasingly agitated state and was using his hands whilst doing this.   Colleague 1 stated that she had remained seated and because of her need to lip-read what the Registrant was saying to her, she had had to look up at him.   She described this incident as being intimidating.   The Panel notes that the Registrant is a large person with a powerful build.   The evidence suggests that the Registrant was very forceful in the way in which he dealt with people and the Panel has observed this in the way he gave his evidence at this hearing.  
30. The Panel also accepts the hearsay evidence of PC that on the same occasion he had witnessed the Registrant raising his voice to Colleague 1, he had also seen the Registrant standing over her “with his chest out” in what was an aggressive manner.
31. The Panel notes that at the outset of the proceedings the Registrant denied Particular 1b).   When the Registrant was recalled and gave further evidence, he admitted Particular 1 in its entirety including the allegation of harassment.  In reaching its decision in respect of Particular 1b) the Panel has relied on the Registrant’s admission.   
32. The Panel is satisfied that the Registrant’s conduct towards Colleague 1 in standing over her in an intimidating manner was both physically intimidating and aggressive and that it amounts to bullying behaviour.   It accepts Colleague 1’s evidence that she felt intimidated by this.  
33. The Panel is not satisfied that the Registrant’s conduct towards Colleague 1 also amounts to harassment.    The Panel reiterates its conclusion that while the evidence demonstrates that the Registrant had an issue with showing respect for certain female members of staff, it does not consider that the Registrant behaved as he did towards Colleague 1 because of her age, sex or disability.   The Panel has concluded that the Registrant acted as he did because he did not like Colleague 1’s approach to training.   In these circumstances, the Registrant’s unwanted conduct towards Colleague was not in relation to one of the protected characteristics under the Equality Act 2010 and the Panel is not satisfied that the HCPC has discharged the burden of proving Particular 1b as regards harassment.  
34. Accordingly, the Panel finds Particular 1b proved as to bullying and not proved as to harassed.
Particular 1c – was found proved in relation to “bullied” and not proved in relation to “harassed”
35. The Panel accepts the evidence of Colleague 1 of the difficulties that she encountered in trying to train the Registrant.   It is clear the Registrant did not have any respect for Colleague 1’s training methods from the outset.  The Panel is satisfied it is more likely than not that there were many occasions when the Registrant spoke to Colleague 1 in a condescending manner.   The Panel accepts Colleague 1’s evidence that the Registrant would often disagree with her when she pointed out that he had made errors.   The Registrant’s attitude was that he knew better than Colleague 1 did, and he often made this clear to her in a condescending manner.  
36. The Panel notes that at the outset of the proceedings the Registrant denied Particular 1c).   When the Registrant was recalled and gave further evidence, he admitted Particular 1 in its entirety including the allegation of harassment.  In reaching its decision in respect of Particular 1c) the Panel has relied on the Registrant’s admission.   
37. The Panel is satisfied that the Registrant’s conduct towards Colleague 1 in speaking to her in a condescending manner was aggressive and that it amounts to bullying behaviour.    The Panel is not satisfied that it is more likely than not that in speaking to Colleague 1 in a condescending manner that this was physically intimidating.   Colleague 1 does not suggest that it was.
38. The Panel is not satisfied that the Registrant’s conduct towards Colleague 1 also amounts to harassment.    The Panel reiterates its conclusion that while it is clear from the evidence that the Registrant had an issue with showing respect for certain female members of staff, the Panel has decided that the Registrant did not behave as he did towards Colleague 1 because of her age, sex or disability.   The Panel has concluded that the Registrant acted as he did because he did not like Colleague 1’s approach to training.   In these circumstances, the Registrant’s unwanted conduct towards Colleague was not in relation to one of the protected characteristics under the Equality Act 2010 and the Panel is not satisfied that the HCPC has discharged the burden of proving Particular 1c as regards harassment.  
39. Accordingly, the Panel finds Particular 1c proved as to bullying and not proved as to harassed.
Particular 1d – was found proved in relation to “bullied” and not proved in relation to “harassed”
40. The Panel accepts the evidence of Colleague 1 that the Registrant was dismissive of her and that this was a regular occurrence.   Colleague 1 gave a particular example of the Registrant’s dismissive behaviour.   This had occurred on 4 March 2017 and she had noted it in the diary for that date.   Colleague 1 stated that she had asked the Registrant to move a delivery of reagent from the corridor where it was a health and safety risk, into the stock room.  Colleague 1 explained that she had asked the Registrant to do this as the MLAs who would usually undertake this task, were busy and the Registrant appeared to her to be the least busy person in the laboratory that day.   Colleague 1 explained that she had trained the Registrant in the appropriate procedure for storing the reagent in the stock room and had signed him off as competent to undertake the task.   Colleague 1 also explained that all members of staff were expected to move the reagent to the stock room, if asked to do so.   The  Registrant had moved the reagent kegs but instead of putting them behind the reagent kegs already in the stock room so that the oldest keg would be at the front and used first, the Registrant had put the new reagent kegs on top of the kegs that were already there.   Colleague 1’s evidence was that she had asked the Registrant why he had not followed the correct procedure and his response to her had been “you only told me to put the reagents in the stock room, so that’s what I did”.   In her diary entry, Colleague 1 recorded that she said to the Registrant that “you must remember the procedure for rotating stock” and that he had replied “of course I do”.   The diary entry continues “so you knew that we wouldn’t put new stock on top of old stock.  Again he replied “of course”.  I replied again “well why have you done it then”?  He just shrugged and said “you said just put it in the wash up”.   Colleague 1 described the Registrant’s behaviour that day as belligerent and dismissive of her. 
41. The Panel notes that at the outset of the proceedings the Registrant denied Particular 1d).   When the Registrant was recalled and gave further evidence, he admitted Particular 1 in its entirety including the allegation of harassment.  In reaching its decision in respect of Particular 1d) the Panel has relied on the Registrant’s admission.   
42. The Panel is satisfied that the Registrant’s dismissive conduct towards Colleague 1 was aggressive and that it amounts to bullying behaviour.   It accepts Colleague 1’s evidence that she felt upset and undermined by this.   The Panel is not satisfied that it is more likely than not that the Registrant’s dismissive behaviour was physically intimidating.   Colleague 1 does not suggest that it was.
43. The Panel is not satisfied that the Registrant’s dismissive conduct towards Colleague 1 also amounts to harassment.    The Panel has concluded that the Registrant’s unwanted conduct towards Colleague 1 was not in relation to one of the protected characteristics under the Equality Act 2010 and the Panel is not satisfied that the HCPC has discharged the burden of proving Particular 1d as regards harassment.  
44. Accordingly, the Panel finds Particular 1d proved as to bullying and not proved as to harassed.
Particular 2
45. The Panel has approached this Particular by first considering whether it is more likely than not that the Registrant made each of the comments set out in sub-particulars 2a to 2h.   It has considered the sub-particulars separately.   The Panel then considered whether the comments it found had been made, were inappropriate.   
46. The Panel has already indicated that it has found Colleague 2 to be a credible and reliable witness.   While the Panel accepts that Colleague 2 was unsure of the precise timing of when the Registrant made comments to her, it is satisfied that Colleague 2 gave truthful and reliable evidence as to the various comments which it is alleged in Particular 2a to 2h were made to her.  
47. The Panel accepts Colleague 2’s evidence that she had joined the Trust in 2016 at around the same time as the Registrant and that they had worked together in the laboratory on a daily basis.  The Panel also accepts Colleague 2’s evidence that the Registrant had made various personal comments to her which she had initially considered to be complimentary.   However, he had repeated some of these comments to the extent that there came a time when Colleague 2 believed them to be inappropriate.  It was her evidence that the Registrant’s comments had begun to make her feel uncomfortable. 
48. The Panel notes that Colleague 2 never made a formal complaint against the Registrant.   The Panel accepts that Colleague 2 reported her concerns to JL shortly before she was due to be interviewed by BR as part of the internal investigation into the Registrant’s conduct towards Colleague 1.  According to Colleague 2, JL had suggested that she make a note of her own concerns regarding the Registrant, and she did so.  The Panel has seen this written note.    The Panel accepts that Colleague 2 handed her written note to BR when she was first interviewed by BR in February 2018.  The Panel has already noted that it found Colleague 2 to be unsure of the dates or period when the Registrant’s comments were made to her.  
Particular 2a was found proved
49. The Panel accepts Colleague 2’s evidence that the comment set out in Particular 2a was the “the first awkward comment” made to her by the Registrant.  It was made by the Registrant when there was no one else around and Colleague 2 had tried to laugh it off.  
50. The Panel has no doubt that the Registrant did say to Colleague 2 that she should “get pregnant, you would look nice pregnant”, or words to that effect.  In reaching this decision, the Panel notes that the comment refers to pregnancy and it has derived support for its conclusion that the Registrant made this comment to Colleague 2 from a similar comment he is alleged to have made to Colleague 3 (Particular 3 c of the Allegation).   The Panel is satisfied that there has been no collusion between Colleague 2 and Colleague 3, as alleged by the Registrant in his evidence.   It regards the common theme of pregnancy in two comments which Colleague 2 and Colleague 3 each allege were made by the Registrant as evidence which is mutually supportive of their respective credibility on these issues. 
51. The Panel is in no doubt that a comment such as that in Particular 2 a, made by an older male colleague to a younger female colleague in a work setting when they were alone is wholly inappropriate.   The Panel notes that although the Registrant denied making this comment, he did accept in cross examination that had he made it, it would have been inappropriate.      
52. Accordingly, the Panel finds Particular 2a proved.
Particular 2b was found proved
53. The Panel accepts Colleague 2’s evidence that the Registrant told her “you have a good body” or words to that effect, a few weeks after the comment set out in Particular 2a.   Colleague 2 stated that the Registrant had made this comment, and the comment set out in Particular 2f at around the same time.   There was no one else around at the time.
54. The Panel is in no doubt that a comment such as that in Particular 2b, made by an older male colleague to a younger female colleague in a work setting when they are alone is wholly inappropriate.   The Panel notes that although the Registrant denied making this comment, he did accept in cross examination that had he made it, it would have been inappropriate.      
55. Accordingly, the Panel finds Particular 2b proved.
Particular 2c – was found proved
56. The Panel accepts Colleague 2’s evidence that “you should work out, it will be good for your sex life” or words to that effect.   Colleague 2 said that this comment was made while she was working at the Broadgreen Hospital site.  She had been having tea with other colleagues in the tearoom and the Registrant was also there.   Colleague 2 said that after her other colleagues had left the tearoom and there was no one else around, the Registrant had come up to her and made this comment.   Colleague 2 said she did not know what to say so she had laughed nervously and left the room shortly after that as she did not want the Registrant to say anything else.
57. In his evidence, the Registrant denied making this comment and claimed that he did not know what “work out” meant.   As the Panel has accepted the veracity of Colleague 2’s evidence, the Panel rejects the Registrant’s evidence.   
58. The Panel is in no doubt that a comment such as that in Particular 2c, made by an older male colleague to a younger female colleague in a work setting is wholly inappropriate, especially as it was made at a time when there was no one else to witness it.   The Panel notes that although the Registrant denied making this comment, he did accept in cross examination that had he made it, it would have been inappropriate.      
59. Accordingly, the Panel finds Particular 2c proved.
Particular 2d – was found proved
60. The Panel accepts Colleague 2’s evidence that the Registrant told her that she looked like a celebrity that he “fancied”.   Colleague 2 said that this comment had been made a couple of weeks after the Registrant had made the comment set out in Particular 2c.   Colleague 2 had been working on the bench in the laboratory labelling samples and the Registrant had also been working in the same room.   Colleague 2 said that the Registrant had started looking at her and he had then said that she had beautiful eyes (Particular 2g).   The Registrant had come over to Colleague 2 and looked at her eyes and told her that she looked like the French President’s wife, Carla Bruni.   Colleague 2 did not know who Carla Bruni was but understood from what the Registrant was saying to her about Carla Bruni that she was a celebrity who he “fancied”.   Colleague 2 said that she did not say anything to the Registrant and just walked away.  There was no one else in the room at the time the Registrant made the comment.
61. The Panel is in no doubt that a comment such as that in Particular 2d, made by an older male colleague to a younger female colleague in a work setting when they are alone is wholly inappropriate.   The Panel notes that although the Registrant denied making this comment, he did accept in cross examination that had he made it, it would have been inappropriate.      
62. Accordingly, the Panel finds Particular 2d proved.
Particular 2e – was found proved
63. The Panel accepts Colleague 2’s evidence that the Registrant had told her on 2 or 3 occasions that “you are good looking” or words to that effect.   Colleague 2 said that when the Registrant first made this comment, she had taken it as a compliment.   However, the Registrant had repeated this comment  at around the same time he was making the other comments about which she was giving evidence (i.e. those in Particulars 2a to h) and she had then found the comments strange.   They had been made whilst she was at work and at times when there was no one else around. 
64. The Panel is in no doubt that a comment such as that in Particular 2e, made by an older male colleague to a younger female colleague in a work setting when they are alone, is wholly inappropriate.   The Panel notes that although the Registrant denied making this comment, he did accept in cross examination that had he made it, it would have been inappropriate.      
65. Accordingly, the Panel finds Particular 2e proved.
Particular 2f – was found proved
66. The Panel accepts Colleague 2’s evidence that the Registrant said to her “I like to watch you at work”.   Colleague 2 said that this comment was made to her at the same time as the Registrant had told her that she had a good body (Particular 2b).  Colleague 2 was working in the haematology laboratory at a bench and the Registrant was working on the other side.   There was no one else around when the Registrant made the comment.   This had been a few weeks after the Registrant had made the “first awkward comment” which is set out in Particular 2a.
67. The Panel is in no doubt that a comment such as that in Particular 2f, made by an older male colleague to a younger female colleague in a work setting when they are alone is wholly inappropriate.   The Panel notes that although the Registrant denied making this comment, he did accept in cross examination that had he made it, it would have been inappropriate.      
68. Accordingly, the Panel finds Particular 2f proved.
Particular 2g – was found proved
69. The Panel accepts Colleague 2’s evidence that the Registrant told her “you have beautiful eyes”.   Colleague 2 said that this comment was made by the Registrant after Colleague 2 noticed that the Registrant was looking at her and shortly before he had made the comment set out in Particular 2d to the effect that Colleague 2 looked like a celebrity he “fancied”.  
70. The Panel is in no doubt that a comment such as that in Particular 2g, made by an older male colleague to a younger female colleague in a work setting when they are alone is wholly inappropriate.   The Panel notes that although the Registrant denied making this comment, he did accept in cross examination that had he made it, it would have been inappropriate.      
71. Accordingly, the Panel finds Particular 2g proved.
Particular 2h – was found proved
72. The Panel accepts Colleague 2’s evidence that the Registrant told her “You are my Colleague 2 and you are mine”, or words to that effect.   Colleague 2 said she and the Registrant were both working in the haematology laboratory when she noticed the Registrant was looking at her.   Colleague 2 said she had asked the Registrant why he was looking at her and this had been his reply.   Colleague 2 said she had been confused by his response but had not said anything else and had walked away.   There had been no one else in the laboratory at the time.  
73. The Panel is in no doubt that a comment such as that in Particular 2h, made by an older male colleague to a younger female colleague in a work setting when they are alone is wholly inappropriate.   The Panel notes that although the Registrant denied making this comment, he did accept in cross examination that had he made it, it would have been inappropriate.      
74. Accordingly, the Panel finds Particular 2h proved.
Particular 3a – was found proved
75. The Panel accepts the evidence of Colleague 3 that she had first met the Registrant at Frimley Park Hospital where the Registrant was working as a locum BMS and she was in her first job as a MLA.   In 2016, Colleague 3 had moved to the Trust as a BMS about a month before the Registrant began to work there.   As a newly qualified BMS, Colleague 3 was being trained by Colleague 1.   She was signed off as competent in February 2017 at a time when the Registrant had been away on paternity leave.   Colleague 3 gave evidence about an incident which took place on 17 June 2017 and about which she made a handwritten note on 21 June 2017.   The Panel has seen that handwritten note.  The Panel accepts Colleague 3’s evidence regarding the incident.  Colleague 3 stated that she had asked the Registrant if he had printed off the PLI lists as she knew that he was not signed off to authorise results.   The Registrant had said that he had not done so but Colleague 3 had seen him do this.   Colleague 3 suggested to the Registrant that he give the PLI list to another BMS, AA to authorise the results.  The Registrant had then thrown the PLI list in her face and said that she should authorise the results.  Colleague 3 told the Registrant she was busy whereupon the Registrant accused Colleague 3 of being rude to him and asked why she was speaking to him in that way.  There then followed an exchange between Colleague 3 and the Registrant during which the Registrant said “All I have tried to do is love you” or words to that effect.   The Panel is satisfied that it is more likely than not that the Registrant did make that comment.  
76. The Panel rejects the Registrant’s evidence in its entirety on this point.  Even if, as the Registrant suggested, he uses the word “love” when he means “like”, that does not mean that he did not make the comment as Colleague 3 has stated.  The Registrant made what the Panel consider to be wholly unfounded assertions that Colleague 3 had conspired with Colleague 2 to support Colleague 1’s complaint against him by making up false allegations against him.  The Registrant’s evidence on this point was inconsistent as at one point, he seemed to be saying that Colleagues 2 and 3 had not put their heads together.   When the Registrant was recalled and gave further evidence, his admissions to Particulars 1, 4 and 5 suggest not only that he had lied on oath when first giving evidence to the Panel about those allegations but he had also lied about there being a conspiracy against him.   These lies are clearly capable of undermining the Registrant’s evidence in relation to the other Particulars of the Allegation which he still denies.  
77. The Panel is satisfied that it is more likely than not that this comment made by the Registrant to Colleague 3 was inappropriate in the circumstances in which it was made.   It is an inappropriate comment to make in a work context.   The Panel notes that when he was cross examined, the Registrant accepted that a comment such as this would be inappropriate.
78. Accordingly, the Panel finds Particular 3a proved.
Particular 3b – was found proved
79. The Panel accepts Colleague 3’s evidence of an occasion where she had been speaking to a locum BMS about how he had met his wife, when the Registrant had come over and joined their conversation.   The Registrant had told them that he and his wife were having problems and had suggested that as Colleague 3 was single, he and Colleague 3 should see where it goes, or words to that effect.  Colleague 3 said she did not know how to react to this and so she told the Registrant that he was old enough to be her father.  She said the Registrant had said he was young and was only 35.  
80. The Panel also rejects the Registrant’s evidence that he did not make this comment for the reasons set out in paragraph 76 above.  The Panel notes that when he was cross examined, the Registrant accepted that a comment such as this would be inappropriate.
81. The Panel is satisfied it is more likely than not that the Registrant did make the comment as set out in Particular 3b to Colleague 3.   It is also satisfied that this comment was wholly inappropriate.   The Registrant was an older man and should not have been speaking to Colleague 3 in ways that shocked her and made her feel uncomfortable. 
82. Accordingly, the Panel finds Particular 3b proved.
Particular 3c – was found proved
83. The Panel accepts Colleague 3’s evidence of an occasion where she had walked past the Registrant who had been sitting at a computer and he had asked her to show him something.   When she had done so, Colleague 3 stated that the Registrant had said to her “Get pregnant, because pregnant women like me” or words to that effect.   Colleague 3 said she had not known how to react and had walked off.   Colleague 3 said that the comments the Registrant had made to her had made her feel anxious and constantly on edge when he was around, wondering what was going to happen each day.  
84. The Panel rejects the Registrant’s evidence that he did not make this comment for the reasons set out in paragraph 76 above.  The Panel notes that when he was cross examined, the Registrant accepted that a comment such as this would be inappropriate.
85. The Panel notes that the comment refers to pregnancy and has derived support for its conclusion that the Registrant did make this comment to Colleague 3 from a similar comment he is alleged to have made to Colleague 2 (Particular 2a of the Allegation – paragraph 50 above).   The Panel is satisfied that there has been no collusion between Colleague 2 and Colleague 3.   It regards the common theme of pregnancy in the comments said to have been made to each by the Registrant as being mutually supportive of the credibility of Colleague 2 and Colleague 3’s evidence on the comments made to each of them. 
86. The Panel is satisfied it is more likely than not that the Registrant did make the comment as set out in Particular 3c to Colleague 3.   The Panel is also satisfied that this comment was wholly inappropriate.   The Registrant was an older man and should not have been speaking to Colleague 3 in ways that made her anxious and constantly on edge.
87. Accordingly, the Panel finds Particular 3c proved. 
Particular 4 – was found proved
88. The Panel accepts the evidence of Colleague 1 as to the importance that BMS staff provide appropriate handovers at the end of their shifts to their colleagues who are taking over from them, in particular in relation to any outstanding urgent abnormal sample results that are outstanding.  A day shift BMS would need to print out a list of urgent samples where results are awaited and give these to the staff coming on duty.  The Panel has seen an extract from the Trust’s Checking Haematology and Outstanding and Overdue Worklists Standard Operating Procedure which makes clear these should be checked every 30 minutes.  The Panel accepts Colleague 1’s evidence that even though the lists should be checked every 30 minutes, the haematology laboratory was a very busy place and the on-call team would need to know about urgent cases straightaway as they might need to ask for a repeat sample to confirm a result.   The repeat sample would then need to be looked at to see if the results were confirmed or not.   The Panel has also seen the Trust’s Standard Operating Procedure for the Authorisation of Full Blood Counts Results where this procedure is set out.   The Panel accepts Colleague 1’s evidence that the Registrant would leave at the end of his shift at 5 pm without handing over any results to the on-call team on the next shift.   Colleague 1 explained that the Registrant would just presume that the results were wrong, order a repeat test and then ask for an additional test and then remove his results from the list.   This would mean that when the additional test result was received by the next on-call team it would be treated the same way as a first sample.  Colleague 1 explained that this would mean that the on-call team would ask for an additional test to be taken rather than comparing it to the original result which the Registrant had removed from the list, to confirm that it was abnormal and enabling action to take place.
89. Colleague 1 gave evidence which the Panel accepts that she had told the Registrant of the correct handover procedure and that he would have been made aware of it as part of his induction when he was required to read all the Standard Operating Procedures.   Colleague 1 referred to an example where the Registrant had failed to provide a proper handover and she had had to call the Registrant back.  This was on 8 March 2017 and was noted in the diary. Colleague 1 had asked the Registrant about a particular sample which needed to be checked due to a very low blood count reading which might indicate that the sample had been taken wrongly.   Colleague 1 said she had to remind the Registrant to chase up urgent samples and repeat samples, and to keep checking for these.  At the end of the shift, Colleague 1 had asked the Registrant if the particular sample result had come down.   The Registrant had said he did not know.   He then checked on the system and told Colleague that it was in the process of being done and would be available in 5 to 10 minutes.   Colleague 1 said that most of her colleagues would have stayed to sort it out themselves, or at the very least pass the information on as part of a handover to the on-call staff coming on the next shift.  In this instance, Colleague 1 had asked one of the staff coming on shift if the Registrant had provided a proper handover and was informed that he had not done so.  Colleague 1 had called the Registrant back and asked him why he had not provided a proper handover.   The Registrant had told her that he did not know who was on call.  Colleague 1 told the Panel that there were in fact BMS staff in the haematology laboratory room at that time and so a proper handover could have and should have been provided by the Registrant.
90. The Panel also accepts the evidence of SB that under the Performance Action Plan devised to address a number of identified areas where the Registrant had competency issues, she had made an entry regarding that incident on 8 March 2017, under the heading “Improving communication/handover of work”, which stated “*Requires rapid improvement – discussed 08/08/17 Re: 3 x diluted samples incorrectly dealt with and failure to handover/communicate”.   The Performance Action Plans are organic documents and the Registrant had signed this particular Performance Action Plan on 21 July 2017 to confirm that it was a true record of the performance issues identified at the review hearing.   
91. The Panel notes that when the Registrant was cross examined about the entry in the Performance Action Plan for 8 March 2017, he said he did not agree with it.   When questioned about Colleague 1’s account  of the incident on that date, the Registrant, having initially stated that Colleague 1 put false information in the diary, did then appear to accept that he had not made a proper handover.   However, he blamed this on Colleague 1 who had “weaponised” her support amongst the other staff in the laboratory against him which had left him feeling alienated, isolated, and unable to communicate with anyone.   He claimed it was not surprising that he did not provide proper handovers at that time.     The Panel also notes that when the Registrant was recalled and gave further evidence, he admitted Particular 4.  In reaching its decision in respect of Particular 4, the Panel has relied on the Registrant’s admission.     
92. Accordingly, the Panel finds Particular 4 proved. 
Particular 5a – was found proved
93. The Panel has seen the Trust’s Standard Operating Procedure (SOP) for Authorising Full Blood Count Results which sets out who may authorise from the two lists used by the Trust – the PLI list which is the first list holding abnormal results on the Telepath system, and the NCPL list which is the secondary list for abnormal results which require secondary authorisation.   The SOP states that for Trainees and Newly Qualified BMS “A BMS who is new to the department will process PLI lists for training purposes only”.    The SOP makes clear that the PLI list can only be authorised by a qualified, experienced BMS.   As at beginning of August 2016, the Registrant was being trained and had not been signed off as competent to authorise off either the PLI or NCPL lists.   The Panel accepts the evidence of CC that whilst he was investigating an incident on 5 September 2016, he had obtained information regarding an earlier incident which had occurred on or around 1 August 2016.  
94. The Panel has seen an Internal Error Report which was submitted by CM, a BMS based at the Broadgreen Hospital into an incident which had occurred on 1 August 2016 and an email dated 3 August 2016 from CM to the Registrant about the same incident.    The Panel accepts the hearsay evidence of CM which forms part of the investigation report prepared by CC into the incident which occurred 5 September 2016.   CM stated that she had told the Registrant when he transferred over to Broadgreen Hospital that he was not allowed to authorise his own results.   CM stated that the Registrant had an unusual sample where the patient had a very low Haemoglobin Blood (HB) count and had sought a repeat sample from the ward.   The results of the repeat sample also showed a very low HB count.   Under the SOP, the correct procedure would have been to telephone the ward and tell them that the second sample, if it had been taken correctly, appeared to confirm the result of the first sample.   Instead, the Registrant had telephoned the ward, and requested a further repeat sample on the basis that the second sample had probably been diluted.   This resulted in time being lost in treating a very unwell patient.   The Panel notes that in the Internal Error Report the suspected root cause of the error was “SOP not followed – original sample should have been left on the PLI as per SOP.   Inexperience and lack of awareness of the importance of grossly abnormal results and protocol to be followed”
95. The Panel notes that when he gave evidence, the Registrant said he had assumed that CM had been aware at the time of what he had done and suggested that CM had asked him to release results.   When he was cross examined, the Registrant admitted that he had accepted that the incident on 1 August 2016 had been his error and that he had not followed the SOP.   The Panel also notes that when the Registrant was recalled and gave further evidence, he admitted Particular 5 a).  The Panel has relied on this admission in reaching its decision on Particular 5a).
96. Accordingly, the Panel finds Particular 5 a) proved.
Particular 5b – was found proved 
97. The Panel has seen the investigation report prepared by CC into an incident on 5 September 2016 which occurred at Broadgreen Hospital.   The Panel accepts the hearsay evidence of AB who is a qualified BMS and was on duty on 5 September 2016 when the Registrant was sent to the Broadgreen Hospital site for 1 day to cover staff shortages.   AB stated that it was made clear to the Registrant that he was not to authorise results from the NCPL list.   AB said he had overheard the Registrant giving a result over the telephone which did not sound right.  AB had checked this, and it had been incorrect.  AB had explained this to the Registrant and had then been present when the Registrant had approved no more than 5 results under his supervision.   AB stated that another member of staff had queried why the Registrant was authorising results from the NCPL list.   A review indicated that the Registrant had not followed the SOP and had authorised up to 11 results from the NCPL list without supervision from AB. 
98. The Panel accepts the hearsay evidence of LSAM that she spoke to the Registrant about this the following day.  The Registrant had told her that AB had been with him when he had authorised results from the NCPL list.  
99. Panel notes that in his evidence, the Registrant admitted that he had authorised results from the NCPL lists in breach of the SOP.   He said he had done so because the wards were asking for results so that they could proceed with treatments.   The Panel also notes that when the Registrant was recalled and gave further evidence, he admitted Particular 5 b).   The Panel has relied on this admission in reaching its decision on Particular 5b).
100. Accordingly, the Panel finds Particular 5 b) proved.
Particular 6 – was found proved in relation to Particular 2a, 2b, 2c, 2d, 2e, 2f, 2g, and Particular 3b and 3c, and not proved in relation to Particular 3a.
101. The Panel has received and accepted legal advice in relation to sexual motivation. It has considered each of the sub-particulars individually.  It understands that simply because something inappropriate was said by the Registrant to Colleagues 2 and 3, this does not automatically mean that it was sexually motivated.   The Panel has considered each of the comments to determine if it is more likely than not that they were (i) by their nature, sexual, or (ii) because of the circumstances in which they were made, and/or the Registrant’s purpose in saying them to Colleagues 2 and/or 3, they were sexual.   The Panel has had in mind when considering the Registrant’s purpose in making each comment whether it is more likely then not that he did so for his own sexual gratification or in pursuit of a future sexual relationship.   The Panel takes the view that where it finds sexual motivation in respect of one sub-particular of either Particular 2 or Particular 3, that this can provide additional support for findings of sexual motivation in one or more of the other sub-paragraphs of those Particulars.
Particular 2
102. Having considered each sub-particular separately the Panel has concluded that it is more likely than not that the Registrant’s purpose in making the comments at Particular 2 a, b, c, d, e, f and g was for his own sexual gratification and that this amounts to sexual motivation.    The Panel notes that when each of the comments was made by the Registrant, he was alone with Colleague 2.   The Panel considers that this fact provides support for its conclusion that it is more likely than not that in making each of the comments, the Registrant was sexually motivated.   It suggests that the Registrant took care to ensure that he was not overheard. 
103. Particular 2a – the Panel has concluded that when the Registrant told Colleague 2 that she should get pregnant and she would look nice pregnant, the Registrant had thought about how Colleague 2 might get pregnant which would necessarily have involved a sexual act.   The Panel is satisfied that it is more likely than not that the Registrant made this comment for his own sexual gratification and that it was therefore sexually motivated.
104. Particulars 2b, e, and f – the Panel has concluded that the Registrant made these comments to Colleague 2 about her having a good body, being good looking, and that he liked to watch her at work, after he had made the comment in Particular 2a.   The Panel, having found the comment in Particular 2a to have been sexually motivated, also finds that it is more likely than not that the comments in Particular 2 b, e and f were made for the Registrant’s sexual gratification and that each of them was therefore sexually motivated.   
105. Particular 2c – that Panel has concluded that when the Registrant made this comment to Colleague 2, he had not only thought about Colleague 2 working out but had also thought about her sex life.   The Panel is satisfied that the Registrant can only have made this comment for his own sexual gratification and that it was sexually motivated.
106. Particular 2d and g – the Panel has found that these two comments were made by the Registrant on the same occasion.   The Panel has concluded that the Registrant’s comment that he “fancied” the celebrity, implies a physical and sexual attraction that he felt for the celebrity.  The Panel is satisfied that when the Registrant then compared Colleague 2 to the celebrity saying that they looked alike, and referred to Colleague 2’s beautiful eyes in this context, it is more likely than not that he did so for his own sexual gratification, and that these comments were sexually motivated.
Particular 3
107. The Panel has considered each sub-particular of Particular 3 separately.  
108. Particular 3a – the Panel is not satisfied that the Registrant’s comment to Colleague 3 that all he had tried to do was love her, was sexually motivated.   The Panel accepts that the Registrant may have used the word “love” when he meant “like”.   The comment was made in circumstances when the Registrant and Colleague 3 were having a heated discussion about a PLI list and the Panel does not consider that in the midst of the such a discussion, the Registrant would have made a comment for his own sexual motivation or in pursuit of a future sexual relationship.   The Panel therefore finds that the HCPC has not discharged the burden of proving Particular 6 in relation to Particular 3a.
109. Particular 3b – the Panel has concluded, given that the Registrant made this comment to Colleague 3 after telling her that he and his wife were having marital difficulties, that it is implicit that when the Registrant referred to Colleague 3 being single and that they should see where it goes, he can only have been thinking about an intimate relationship with Colleague 3.  The Panel is satisfied that the Registrant made the comment for his own sexual gratification and/or in pursuit of a future sexual relationship with Colleague 3, and that his comment was sexually motivated.
110. Particular 3c – the Panel has concluded that when the Registrant told Colleague 3 that she should get pregnant, because pregnant women like him, the Registrant had thought about how Colleague 3 might get pregnant which would necessarily have involved a sexual act.  The Panel is satisfied that the Registrant can only have made this comment for his own sexual gratification and that it was sexually motivated.
111. Accordingly, the Panel finds that Particular 6 is proved in relation to Particular 2a, b, c, d, e, f, g and Particular 3 b, c.   The Panel does not find Particular 6 proved in relation to Particular 3a.
Decision on Grounds
112. In reaching its decision on the statutory grounds of misconduct and/or lack of competence, the Panel has received and accepted legal advice. 
Misconduct
113. In relation to Particular 1, the Panel considers that the Registrant’s bullying conduct undermined Colleague 1 in such a way that she was unable to  do her job and train him using a tried and trusted training programme which was intended to be for his benefit.   The relationship between Colleague 1 and the Registrant broke down and Colleague 1 had to take a period of sick leave.  
114. The Panel has no hesitation in concluding that this amounts to serious misconduct which fellow practitioners would find deplorable.
115. In relation to Particular 2, 3 and 6, the Panel considers that the Registrant’s inappropriate and/or sexually motivated comments to Colleagues 2 and 3 were an abuse of his position as a Band 6 BMS, and have no place in the workplace.  Neither Colleague 2 or Colleague 3 felt that they could work with the Registrant and were particularly concerned that once the Registrant had been signed off as competent, they might be asked to work alone with him on a night shift.   The Panel is satisfied that its findings in respect of these Particulars amount to serious misconduct which fellow practitioners would find deplorable.   The Panel cannot conceive of a situation where a finding of sexual motivation would not amount to serious misconduct.  
116. In relation to Particular 4, the Panel takes the view that this too amounts to serious misconduct.   Results which are not handed over properly and accurately means that decisions as to the correct treatment of a patient are delayed.  Where there is no proper handover, this has the potential to put patients at serious risk of harm which could be life threatening.   The Panel has found that whilst the Registrant knew the protocol for handing over outstanding and urgent results to the next on-call team, he ignored this on more than one occasion.  
117. In relation to Particular 5 a and b, while the Panel accepts that anyone can make a mistake, the Registrant had been told on many occasions and by a number of different people, that he was not yet competent to authorise results.   Despite knowing this, the Registrant deliberately authorised results, ignoring the relevant SOP and the instructions he had been given.   The Panel considers that the Registrant did not have sufficient insight to realise what it was that was wrong with what he did on 1 August 2016, and that the error would not have occurred had the Registrant followed proper procedures.   The Panel also considers that far from learning from his mistake on 1 August 2016, and despite being told that he was not to authorise results from the NCPL list, the Registrant made a conscious decision to ignore those instructions.   The Panel is satisfied that Particular 5 a and b amounts to serious misconduct.
118. The Panel is satisfied that the Registrant’s conduct in relation to each of the Particulars which it has found proved, fell far below the high standards to be expected of a BMS.     In coming to this conclusion, the Panel has also had in mind the HCPC Standards of Conduct, Performance and Ethics (2016) and has concluded that the following standards are engaged and have been breached:
119. Standard 2.5  You must work in partnership with colleagues, sharing your knowledge and experience where appropriate, for the benefit of service users and carers.
. The Panel is satisfied that the Registrant did not work in partnership with Colleague 1 as she tried to train him.   The findings of fact in Particular 1 indicate that he undermined and bullied her.  
120. Standard 2.6  You must share relevant information, where appropriate, with colleagues involved in the care, treatment or other services provided to a service user.
The Panel is satisfied that the Registrant did not share relevant information with colleagues when he should have done during handovers as found proved in Particular 4.   Nor did he share relevant information with colleagues when authorising results contrary to instructions as found in Particular 5.  
121. Standard 3.1  You must keep within your scope of practice by only practising in the areas you have appropriate knowledge, skills and experience for.
The Panel is satisfied that the Registrant did not keep within the scope of his practice as required in this Standard when he authorised results contrary to instructions and in breach of SOPs as found proved in Particular 5.
122. Standard 6.1  You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
The Panel is satisfied that the Registrant did not take all reasonable steps to reduce the risk to patients when he did not provide proper handovers as found proved in Particular 4 and did not follow the SOP for authorising results as found proved in Particular 5.  
123. The Panel has also had in mind the HCPC Standards of Proficiency for Biomedical Scientists and has concluded that the following standards are engaged and have been breached.  These state that Biomedical Scientists must:
124. Standard 1.1  know the limits of their practice and when to seek advice or refer to another professional.
The Panel is satisfied that the Registrant did not seek advice or refer to another professional when authorising results as found proved in Particular 5, and so did not appreciate the limits of his practice.
125. Standard 3. 1  understand the need to maintain high standards of personal and professional conduct.
The Panel is satisfied that in making inappropriate and/or sexually motivated comments to Colleagues 2 and 3, the Registrant did not understand the need to maintain high standards of personal and professional conduct.  
126. Standard 9.1  be able to work, where appropriate in partnership, with service users, other professionals, support staff and others.
The Panel is satisfied that the Registrant did not work in partnership with Colleague 1 as she tried to train him.   The findings of fact in Particular 1 indicate that he undermined and bullied her.  
127. Standard 9.2  understand the need to build and sustain professional relationships as both an independent practitioner and collaboratively as a member of a team.
The Panel is satisfied that its findings of fact in Particulars 1, 2, 3, 4 and 5 show that the Registrant did not understand the need to build and sustain professional relationships with his colleagues in the haematology laboratory.  He was unable to build let alone sustain a professional relationship with Colleague 1.   The example in her evidence when she asked the Registrant to move reagent kegs is indicative of his inability to work collaboratively as a member of a team.    The fact that he did not follow clear instructions in relation to authorising results also indicates that he was not a team player.   The inappropriate and/or sexually motivated comments to Colleagues 2 and 3 are another example of the Registrant’s inability to build and sustain professional relationships.
128. Standard 15.6 understand the application of principles of good laboratory practice.
The Panel is satisfied that its findings in respect of Particulars 4 and 5 demonstrate that the Registrant did not understand the application of principles of good laboratory practice.  
129. Accordingly, the Panel finds that the Registrant’s conduct in Particulars 1 to 6 falls seriously short of what would have been proper in the circumstances and amounts to misconduct.
Lack of Competence
130. The Panel has concluded that the evidence it has heard in respect of both Particular 4 and Particular 5 is not a fair sample of the Registrant’s work on which to judge whether his competency on those particular matters was unacceptably low.  The Panel considers that the facts found proved under Particular 4 and Particular 5 do not amount to “exceptional circumstances” on which it should form a view as to lack of competence.  The Panel is satisfied that when the Registrant was conducting handovers and authorising results on the dates in question, he had deliberately chosen not to do follow what he knew to be the correct procedures.   The Panel recognises that while there were a number of issues regarding the Registrant’s competency in haematology during his time at the Trust which were never fully resolved, these were being addressed under the Trust’s capability pathway process from late 2016/early 2017.   Accordingly, the Panel has concluded that the statutory ground of lack of competence is not made out.  

Decision on Impairment 
131. In reaching its decision on impairment, the Panel has considered the submissions of Mr Bridges for the HCPC and Mr Nulty for the Registrant.   It has taken note of the HCPTS Practice Note “Finding that Fitness to Practise is Impaired”.   It has received and accepted legal advice.   The Panel has borne in mind that the purpose of this hearing is not to punish the Registrant for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise.

132. The Panel has also considered testimonials submitted on behalf of the Registrant where these are relevant.   There was one testimonial where it appears the author was aware that the Registrant had been referred to the HCPC, but it is not clear that the details of the concerns which led to the referral had been fully explained to the author.   It does not appear that the authors of the other testimonials were aware of the allegations in this case.   In these circumstances, the Panel feels that it can only rely on this evidence to a limited extent. 

Personal component

133. The Panel first considered whether the Registrant’s misconduct has put patients at unwarranted risk of harm.   The Panel is satisfied that the Registrant’s misconduct in Particular 4 and Particular 5, did put patients at unwarranted risk of harm.   The Panel is satisfied that by not following proper procedures for handovers, abnormal and urgent results were not processed in a timely manner and important decisions as to treatment for patients were delayed.   This created an obvious and unwarranted risk of harm.   The incident on 1 August 2016 did result in harm to a patient.   The incident on 5 September 2016 when the Registrant authorised results off the NCPL list when he was not authorised to do so, did put patients at unwarranted risk of harm.   Fortunately, on that occasion no actual harm was caused.

134. The Panel then considered whether the Registrant’s misconduct has brought the Biomedical Science profession into disrepute.   The Panel is satisfied that conduct by a BMS practitioner which involved (i) bullying a colleague through aggressive and physically intimidating behaviour, (ii) making inappropriate and sexually motivated comments to junior work colleagues and (iii) not following correct laboratory procedures or SOPs, is conduct which does bring the Biomedical Science profession into disrepute.  

135. The Panel is also satisfied that by his misconduct the Registrant has breached fundamental tenets of the Biomedical Science profession which require practitioners to maintain high standards in their personal and professional behaviour, to promote and protect the interests of service users, and to work in partnership with colleagues.    

136. The Panel then went on to consider whether, looking forward, the Registrant is liable to put patients at unwarranted risk of harm, and also is liable in the future to bring the Biomedical Science profession into disrepute or breach one of the fundamental tenets of that profession.  In reaching its conclusion on these matters, the Panel has considered evidence of insight, remorse, reflection, remediation and the likelihood of repetition of the misconduct involved in this case.  

Insight, remorse, reflection

137. The Panel takes the view that the Registrant has shown very little, if any genuine insight into his misconduct.   The Panel is concerned that the statement made by the Registrant when he was recalled on Monday 16 November 2020, was a cynical  attempt by him to persuade the Panel that despite what he had said on oath the previous week, he does have insight.   The Panel has not been so persuaded.   In his original evidence, the Registrant sought to portray himself as a victim of a conspiracy to get rid of him from the Trust.   When he was recalled and made admissions to Particulars 1, 4 and 5, the Registrant followed this with a statement which almost exclusively referred to Particular 1.   He said he could now see that the problems he had were partly of his making and that had he recognised this at the time, he could have done something about them.   He commented that he had felt isolated.  The Panel takes the view that the Registrant is still not taking full responsibility for the breakdown of his relationship with Colleague 1.   In his statement, the Registrant said that he apologised to Colleague 1 and his other colleagues for “his lack of insight”.   He also apologised to Colleagues 2 and 3, saying that if he had upset them, that had not been his intention.   The Panel takes the view that the Registrant has not even begun to recognise the seriousness of the concerns regarding inappropriate and sexually motivated comments made to junior work colleagues.   The Panel considers that viewed as a whole, the Registrant’s apologies do not amount to genuine remorse for his misconduct as it is clear that he has not reflected properly or developed any insight into the effect of his conduct on others.   

138. The Registrant gave no indication in his statement of any understanding that his conduct in not following laboratory procedures and/or SOPs (as found in Particulars 4 and 5),  not only had the potential to harm patients but had resulted in actual harm to one patient who had to be admitted to intensive care.  He simply did not address this at all.   This is indicative of the Registrant’s lack of insight and proper reflection. 

Remediation

139. The Panel notes that there is no evidence of any steps taken by the Registrant to remedy his misconduct.  

Likelihood of repetition

140. The Panel has no confidence that were the Registrant to find himself in a similar situation in the future, he would not repeat his misconduct due to his lack of insight.   It has therefore concluded that there remains a very grave risk of repetition in this case.   The Panel is reinforced in this view by one of the testimonials produced by the Registrant.   It is from a Senior BMS at the Calderdale and Huddersfield Foundation Trust where the Registrant worked as a Locum BMS.    It is not clear when this was, but the Panel accepts that it was after the Registrant had left the Trust.   It is clear from this testimonial that there were some problems during the Registrant’s time at the Calderdale and Huddersfield Foundation Trust. The Registrant had to be constantly reminded not to use his mobile phone in the laboratory as this was against laboratory policy, the Registrant was also taking more than his allotted time at breaks, and it was suggested that the Registrant had touched a female colleague on the arm which had caused her to feel uncomfortable, but did not result in a complaint.   The testimonial concludes with a statement that the Registrant would probably not be re-employed due to the time-keeping issues.   The Panel considers that these concerns echo aspects of the misconduct in this case, namely not following laboratory procedures, in this instance in relation to use of a mobile phone and timekeeping, and the inappropriate touching of a female colleague.   The Panel takes the view that the issues raised in the testimonial underline its conclusion as to the risk of repetition in this case.

141. In these circumstances, the Panel has concluded that the Registrant’s fitness to practise is impaired on personal component grounds.

Public component

142. In relation to the public component, the Panel is satisfied that public confidence in the Biomedical Science profession and its regulatory body, would be undermined if there was no finding of impairment in this case where the misconduct found involves bullying conduct towards a  colleague, inappropriate and sexually motivated comments to colleagues, and the risk of harm to patients by not following laboratory procedures and SOPs.  The Panel is also satisfied that it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in that profession if it did not find impairment in this case.   It has no doubt that a reasonable and informed member of the public would be extremely concerned if there was no finding of impairment in a case involving the sort of serious misconduct found in this case.

143. The Panel therefore finds, on the public component, that the Registrant’s fitness to practise is currently impaired. 

144. Accordingly, the Panel finds, on both the personal and public component grounds, that the Registrant’s fitness to practise is currently impaired and the Allegation is well founded. 

Decision on Sanction

145. In considering the appropriate and proportionate sanction in this case the Panel was referred to and has taken account of the HCPC’s Sanctions Policy.    The Panel has also considered the short submissions of both parties, and it has received and accepted legal advice. The Panel is aware that the purpose of any sanction it imposes is not to punish the Registrant, although it may have that effect, but it is to protect service users, to maintain confidence in the Biomedical Science profession and to uphold its standards of conduct and behaviour.   It has also had in mind that any sanction it imposes must be appropriate and proportionate bearing in mind the misconduct involved.

146. The Panel has considered mitigating and aggravating factors.    The Panel first looked at the mitigating factors.  The Panel notes that there are no previous professional findings against the Registrant.  The Panel also notes that the Registrant made late admissions to parts of the Allegation.

147. The Panel considers the following to be aggravating factors:

• the Registrant’s lack of insight, as evidenced by his arrogant attitude; his lack of understanding of the effect of his misconduct on others; his attitude to women colleagues and colleagues in more junior positions,
• his lack of genuine remorse,
• the fact that he lied on oath as became evident when he made late admissions,
• the serious nature of his misconduct.

148. The Panel has considered the available sanctions in ascending order of seriousness.   It has decided that to take no action or to impose a Caution Order in this case would not be appropriate or proportionate given the gravity of misconduct concerned.   The misconduct was not an isolated incident, it could not be described as relatively minor and the Panel has concluded that there is a very grave risk of repetition.     It is satisfied that to ensure public confidence in the profession is not undermined it must consider a more severe sanction.

149. The Panel has considered a Conditions of Practice Order and in particular, the factors set out in paragraph 106 of the Sanctions Policy, which states:

 “A conditions of practice order is likely to be appropriate in cases where:
• the Registrant has insight;
• the failure or deficiency is capable of being remedied;
• there are no persistent or general failures which would prevent the registrant remediating;
• appropriate, proportionate, realistic and verifiable conditions can be formulated;
• the panel is confident the registrant will comply with the conditions;
• a reviewing panel will be able to determine whether or not those conditions have or are being met, and
• the registrant does not pose a risk of harm by being in restricted practice”.

150. The Panel is satisfied that the Registrant’s lack of insight into his misconduct and the level of the risk of repetition, makes this sanction wholly inappropriate in this case.   The Panel has concluded that it would not be able to devise appropriate, proportionate, realistic and verifiable conditions which would address the serious concerns regarding the Registrant’s bullying behaviour, and the inappropriate and sexually motivated comments involved in this case.   Although the Registrant indicated in his evidence that he would comply with conditions, the Panel is concerned that his lack of insight suggests that he may not be able to do so.   The facts of this case show that where the Registrant does not agree with, for example, limitations put on the scope of his practice, he tends to ignore them when it suits him.  The Panel considers that an informed member of the public would be concerned if a registrant without proper insight, was able to practice subject to conditions.

151. The Panel next considered a Suspension Order.   It has taken account of the relevant paragraphs in the Sanctions Policy and has concluded that this would be the appropriate and proportionate sanction in this case.   The Panel considers that this sanction would adequately protect the public and satisfy the wider public interest concerns.   The Panel has paid particular regard to paragraph 121, which states:
 
 “A suspension order is likely to be appropriate where there are serious concerns which cannot reasonably be addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
• the concerns represent a serious breach of the Standards of conduct, performance and ethics;
• the registrant has insight;
• the issues are unlikely to be repeated; and
• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”
152. The Panel has considered very carefully whether the Registrant’s lack of insight into his misconduct and the level of the risk of repetition rules this sanction out.   The Panel is of view that the concerns in this case are capable of being remedied.  The Panel has in mind that there are different degrees and different forms of sexual misconduct.   It is satisfied that the sexual misconduct in this case does not fall at the more serious end of the scale.   The Panel has reached a similar conclusion with regard to the bullying misconduct.   The Panel notes that the Registrant appears to have worked as a BMS in short term posts, without any cause for concern both before and, with one exception, after his employment at the Trust.   The Panel also notes that the Registrant is keen to continue his career as a BMS and in effect acknowledged, in his statement to the Panel on Monday 16 November 2020, that this would be his last chance to do so.   
153. The Panel went on to consider whether the appropriate and proportionate sanction would be a Striking Off Order.  It has considered the Sanctions Policy where, in paragraphs 130 and 131, it is clear that such a sanction is one of “last resort” and is appropriate and proportionate where “any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process”.   While it is clear from the findings in this case that the Panel views the Registrant’s misconduct to be serious, it does not consider that it is so serious that only a Striking Off Order is required.   The Panel has already indicated in paragraph 1 above that neither the bullying nor sexual misconduct fall at the more serious end of the scale of seriousness.
154. The Panel has therefore concluded that a Striking Off Order in this case would be too harsh and disproportionate.  
155. The Panel has therefore concluded that the appropriate and proportionate sanction in this case is a Suspension Order for a period of 12 months.   The Panel takes the view that the Registrant will need this length of time to develop appropriate insight into his failings and to properly reflect upon them.   The Panel is satisfied that such a sanction protects the public and maintains public confidence in the Biomedical Science profession and in its regulatory body while at the same time sending out a clear message to practitioners that this sort of conduct will not be condoned. 

156. The Suspension Order will be reviewed before it expires, and the Panel takes the view that a reviewing panel may be assisted by the following:
1. a reflective piece addressing the deficiencies in the Registrant’s insight in relation to the boundaries of his scope of practice; the boundaries of his working in partnership with colleagues; working within a team setting.
2. evidence of CPD or other actions taken by the Registrant to maintain his knowledge and skills as a Biomedical Scientist;
3. evidence of CPD or other actions taken by the Registrant to address the concerns in this case;
4. references or testimonials from people for whom the Registrant may be working in paid or unpaid employment, or from other people of good standing who are aware of the allegations in this case during the period of his suspension;
5. the Registrant’s attendance in person or remotely, at the review hearing to assist the reviewing panel in relation to his insight.

Order:  That the Registrar is directed to suspend the name of Mr Collins Esona from the Register for a period of 12 months from the date that this order comes into effect.

This order will be reviewed again before its expiry on 17 December 2021.

Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you.  The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

European Alert Mechanism
In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been prohibited.

You may appeal to the County Court against the HCPC’s decision to do so.  Any appeal must be made within 28 days of the date when this notice is served on you.  This right of appeal is separate from your right to appeal against the decision and order of the Panel.
Interim Order

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest for all the reasons set out in the Panel’s determination above.    The Panel notes that the Registrant was given notice of this application on 29 July 2020.
This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Mr Collins Esona