John Banks

 

 

1. The Panel accepted the advice of the Legal Assessor. The Panel had sight of an email dated 16 September 2022, sent to the Registrant at his registered email address, giving notice of the hearing. There was also an email receipt proving delivery. It therefore determined that service had been complied with in accordance with the Health and Care Professions Council (Conduct and Competence Panel) (Procedure) Rules 2003.

 

 

2. With the Registrant not present, Ms O’Connor made an application to proceed in his absence.

 

3. The Panel heard and accepted the legal advice from the Legal Assessor, who referred to the case of the GMC v Adeogba [2016] EWCA Civ 162, and the principles to be considered when deciding whether or not to proceed in the absence of a Registrant. The Panel had in mind the need to exercise its discretion to proceed with the utmost care and caution, particularly because the Registrant was not represented. 

 

4. From correspondence provided between the Registrant and the HCPC, the Panel noted that the Registrant was aware that the hearing was due to go ahead on 20 October 2022 and that, in the event that he did not attend, the hearing could go ahead in his absence, as detailed in the Notice of Hearing. In an email dated 5 October 2022 the Registrant was asked by the Hearings Officer whether he would be attending the hearing. He responded the same day objecting to being sent emails and insisting that all correspondence be sent to him by recorded delivery. However, he did not answer the question about whether or not he would be

attending. 

 

5. The only other indication the Registrant had given about whether or not he would attend was in an email dated 8 August 2022, when he said he would not be going to the hearing due to ill health. He did not elaborate or provide any evidence relating to his current health and how it might prevent him from participating. He may have been under the impression the hearing would be held in London and thus he was written to informing him that it would be a virtual hearing so he would not need to travel to London and measures could be put in place to assist him in participating. He did not comment any further on this.

 

6. The Panel noted that the Registrant faced serious allegations, there was a clear public interest in the matter being dealt with expeditiously and there was a witness in attendance, with a number more lined up. The Panel considered an adjournment would serve no useful purpose, because it seemed unlikely that the Registrant would attend on another occasion. Furthermore, the Panel noted he had not requested an adjournment. In light of the Registrant’s non attendance and his failure to respond to questions about whether he would be attending the Panel concluded that he had voluntarily waived his right to be present and his right to be represented at this hearing. He clearly knew the hearing was going ahead and he had been provided with the link to join, should he have wished to do so. He had chosen not to do so. The Panel took into account the fact that the Registrant had provided various accounts to the matters alleged and these accounts were within the papers provided. Whilst the Panel could not know if these accounts represented the Registrant's current position, they did at least provide some indication of his response to the case and would be taken into consideration by the Panel when reaching its decisions.

 

7. The Panel concluded that it was in the interests of justice that the matter should proceed notwithstanding the absence of the Registrant. The Panel would draw no adverse inference from the Registrant’s non-attendance.

 

 

8. Ms O’Connor indicated that although this Panel would not be considering the health matters detailed in the Allegation, it was inevitable that reference would be made to the Registrant’s health during the course of the hearing. She thus requested that those matters be dealt with in private in order to protect the private life of the Registrant.

 

9. The Panel considered the application with care and accepted the advice of the Legal Assessor. The Panel noted that the Rules allow for the hearing, or part of the hearing, to be held in private where to do so is necessary to protect the private life of a Registrant. Accordingly, the Panel agreed that where mention was made of the Registrant’s health, those parts of the hearing would be heard in private. 

 

 

10. Ms O’Connor informed the Panel that Colleague 2 would not be attending the hearing for various reasons and the HCPC had taken the decision not to rely on his evidence. She said that in due course she would be offering no evidence on the matters related to Colleague 2 where there was no independent evidence of the matters alleged. Ms O’Connor also indicated that the HCPC had been unable to trace the witness HN and accordingly the HCPC would not be relying on her evidence, which in any event did not go directly to any of the matter alleged as she had been responsible for carrying out one of the internal investigations.

 

11. In relation to Colleague 6, however, who was also unable to attend, Ms O’Connor made an application to adduce her statement as hearsay. She said the application was to adduce all of Colleague 6’s evidence save for paragraphs 5 to 9 and 19 to 21, because those paragraphs dealt with multiple hearsay and the Council recognised that given Colleague 6’s absence this did not amount to “good evidence”. Ms O’Connor candidly accepted that Colleague 6 provided the sole and decisive evidence in relation to Particulars 6(b) and 6(e) and that if her application were unsuccessful she would be seeking to offer no evidence on those matters.

 

12. Ms O’Connor referred to three telephone attendance notes created by the solicitors instructed by the HCPC to investigate the case. Two of the notes were dated 17 May 2022 and the third note 8 August 2022. At 11.01 on 17 May the note recorded that Colleague 6 “explained that she really did not want to attend a hearing under any circumstances. [Colleague 6] explained that the Registrant had made her ill at one point and that she had only recently recovered. [Colleague 6] said that she had experienced a lot of bereavements and ill health over the past year and that attending a hearing would create further stress.” At 12.30 the same day Colleague 6 said that “if the matter could not proceed without her then she would have no option but to be involved, but if it was possible that she did not have to engage, then she would prefer not to.” By 8 August 2022 Colleague 6 was taking the firm view that she would not attend under any circumstances, whether the hearing took place virtually or in person. Colleague 6 said that “she was concerned about her mental health as she had experienced feelings of deep depression and anxiety, both as a result of John Banks directly and the investigation itself. [Colleague 6] said that at one point John Banks had made her quite ill with depression/anxiety in addition to stress and had to have time off work as a result. [Colleague 6] said that she had experienced several traumas over the past 18 months, in particular the death of her parents within the space of 3 months. [Colleague 6] said that the situation is extremely difficult for her and is concerned that giving evidence would reignite those feelings of depression/anxiety. [Colleague 6] explained that she needs to put it all behind her for her mental wellbeing.” Ms O’Connor added that Colleague 6 had recently retired. 

 

13. Ms O’Connor said that whilst the HCPC did not have any independent evidence about the time Colleague 6 said she had to take off work or medical evidence in relation to her health, the HCPC had taken the decision that it would not be appropriate to apply for a witness summons to compel Colleague 6 to attend the hearing. Instead she was applying for Colleague 6’s statement to be admitted in evidence as hearsay. She said the decision to admit the evidence should not be taken lightly because it was the sole and decisive evidence and that fairness must be considered. She said it was clear that the factual matters in Colleague 6’s statement were disputed by the Registrant and she acknowledged that no other evidence could be called on these issues. Ms O’Connor referred to several cases and reminded the Panel that the question at this stage was whether the evidence was admissible not about what weight should be attached to the evidence. Ms O’Connor said the Registrant had responded saying he would not be able to cross-examine Colleague 6 and that this was a very proper point to make. She said even though he was not, at the moment, here to cross-examine this witness, there was also no possibility of the Council or the Panel asking questions either. Ms O’Connor concluded by saying the decision to make the application was not taken lightly, but she acknowledged the various challenges she faced by making the application.

 

14. The Registrant had been informed in advance of the intention by the HCPC to apply to read the statement of Colleague 6 and he had responded in an email stating, “If the witness refuses to attend how can I cross-examine so remove their statement from the hearing as it will be one side.” (sic).

 

15. The Panel considered the application with care and accepted the advice of the Legal Assessor who referred to the case of Razzaq v Financial Services Authority [2014] EWCA Civ 770 (which in turn referred to the cases of NMC v Ogbonna [2010] EWCA Civ 1216, R (Bonhoeffer) v GMC [2011] EWHC 1585, White v NMC [2014] EWHC 520 and Thornycroft v NMC [2014] EWC 1565 (Admin)).

 

16. Notwithstanding the absence of independent evidence, the Panel was satisfied that there were sound reasons for the non-attendance of Colleague 6, as recorded in the three telephone attendance notes it was referred to, and that all reasonable efforts had been made to gain her attendance. The Panel was also satisfied that the evidence contained within Colleague 6's statement was relevant to some of the issues it had to decide, since she gave direct evidence of what she said the Registrant said within her hearing. The crucial question, therefore, was one of fairness. The Panel noted that Colleague 6’s evidence on Particulars 6(b) and 6(e) was the only evidence. No one else was said to have heard these comments and there was, therefore, no way of testing this evidence in the absence of this witness. The Panel also noted that these matters were hotly contested by the Registrant and that whilst there was no inviolable right to cross-examine a witness, the case law made it clear that Panels should be slow to admit hearsay evidence where it is the sole and decisive evidence and contested.

 

17. Although the Registrant was not in fact present to cross-examine, it was always possible he might decide to join the hearing at some point. Furthermore, even if he did not attend there would be no way in which those present could test Colleague 6’s evidence and in such circumstances the Panel concluded it would be unfair to admit this evidence. The Panel recognised that by not allowing Colleague 6’s evidence to be admitted as hearsay there would be no evidence to support Particulars 6(b) and 6(e) and that Ms O'Connor would therefore be making an application to offer no evidence on these Particulars. The Panel was also aware of its duty to ensure matters are not under-prosecuted. However, it also has a duty to ensure hearings are conducted fairly and, following the guidance offered by the case law, the Panel was satisfied that it was right and proper not to allow this evidence to be adduced as hearsay.

Application to offer no evidence

 

18. Following the Panel's ruling on the hearsay application, Ms O’Connor submitted that the HCPC would be offering no evidence on a number of the Particulars. In relation to Particular 3, Ms O'Connor said that this had been based on the evidence of a witness who subsequently withdrew the allegation and was not prepared to make a statement. There was, she said, no realistic prospect of a finding of fact in relation to this Particular. She said that with Colleague 2 not attending there was no evidence to support Particulars 4, 5 and 7(a) to (d), because these all relied solely on Colleague 2. She said no one else was present and there was no other evidence she could rely on for these matters. Ms O’Connor also said the HCPC was offering no evidence on Particulars 6(a) and 6(f) since both relied on multiple, in one case anonymous, hearsay and there was no direct evidence to support these Particulars. Ms O’Connor added that in light of the Panel’s decision on Colleague 6, the HCPC was offering no evidence on Particulars 6(b) and 6(e) since without Colleague 6 there was no evidence to support these allegations and therefore no realistic prospect of success.

 

19. The Panel considered the applications individually and with care, accepting the advice of the Legal Assessor. The Panel needed to be satisfied that the HCPC’s rationale for offering no evidence on each of the Particulars was sound and that it would not result in the case being under prosecuted. The Panel also acknowledged that the HCPC acts in the public interest and should not seek to pursue an allegation which has no realistic prospect of success. From the papers provided it was apparent that the Registrant disputed all matters alleged in these Particulars.

 

20. In relation to Particular 3 this had relied on a witness who allegedly overheard the Registrant singing the words referred to in the Particular. This witness had not made a statement and had subsequently withdrawn his allegation. In such circumstances, the Panel was satisfied that there was no realistic prospect of success and it was right to accept the Council’s stance of offering no evidence.

 

21. With reference to Particulars 4 and 5, the alleged overheard comments made by the Registrant, these relied solely on Colleague 2 as it was not said that anyone else overheard them. Without the evidence of Colleague 2 there was no evidence that either comment was said and accordingly the Panel accepted Ms O’Connor’s submission offering no evidence.

 

22. Particulars 7(a) to (d) also relied solely on the evidence of Colleague 2. There was one occasion when Colleague 2 referred to someone else being in the car with him, but that person had not been identified and no statement obtained. Without Colleague 2 there was, therefore, no evidence to support these Particulars and no realistic prospect of success. The Panel therefore accepted the offer of no evidence on these Particulars.

 

23. In relation to Particular 6(a), this relied on the anonymous multiple hearsay in the statement of Colleague 6, which the Panel had ruled could not be admitted as hearsay. Even if Colleague 6’s statement had been admitted Ms O’Connor would have offered no evidence on this Particular since the Council recognised the weakness of relying on multiple anonymous hearsay to prove an allegation. It was appropriate, therefore, to accept the offer of no evidence on Particular 6(a).

 

24. In relation to Particulars 6(b) and 6(e), these relied solely on the evidence of Colleague 6, which the Panel had ruled as inadmissible. It followed that without Colleague 6’s evidence there was no evidence to support these allegations and it was right that the offer of no evidence be accepted.

 

25. Particular 6 (f) relied on multiple hearsay contained within the statement of Colleague 6. Even with Colleague 6’s evidence Ms O’Connor had been intending to apply to offer no evidence on this matter, acknowledging that relying on multiple hearsay to prove matters was inherently unreliable. The Panel agreed and accepted the offer of no evidence.

 

26. The matters alleged are now as follows:

 

As a registered Radiographer (RA33476) your  fitness to practice  is impaired by reason  of misconduct and/or a health condition. In that:

 

1. On or around 21 December 2015, made the following inappropriate and/or offensive comments to colleagues:

 

a) “Size does matter, doesn’t it, you know it does, don’t you?”, or words to that effect;

 

b) “You won’t understand that…What he’s trying to say is…Ching, chong, chang, wing, hung, ding, jong, dong”, or words to that effect.

 

2. On an unknown date said “Chinese do not speak English only numbers; number 69, 24 etc.”, or words to that effect;

 

3.       …

 

4. …  

 

5. … 

 

6. During your employment with the United Lincolnshire Hospitals NHS Trust, you did not communicate professionally with colleagues, in that:

 

a) …

 

b) … 

 

c) On 07 March 2018 and/or 11 July 2018 you commented on the capability of female drivers, stating that Dubai relaxing their rules in this respect was bad or words to that effect, in the presence of Colleague 1.

 

d) On 11 July 2018, during a meeting with Colleague 1:

 

i. You commented on the big tool/stuff you had in your pants, or words to that effect;

 

ii. You told Colleague 1 that they would find several people around them who were racist but would not reveal it, or words to that effect.;

 

iii. You told Colleague 1 that colleagues were not happy approaching them because they covered their head and because they looked different, or words to that effect;

 

iv. You told Colleague 1 how lucky they were to be in their position and if they had already worked at the Trust, they would never have been considered, or words to that effect;

 

v. You asked Colleague 1 if they had ever noticed the management structure poster in the hospital corridor and that Colleague 1 would not notice a single Asian skin in it, or words to that effect;

 

vi. You commented on Colleague 1 being black and you being white, or words to that effect;

 

vii. You told Colleague 1 that if you would become superintendent the first thing you would do is expand the bed bay area in CT waiting area by demolishing Colleague 1’s office, or words to that effect;

 

e) …

 

f) … 

 

7. On various dates between October 2018 and January 2019 you engaged  in  conduct likely to cause alarm and distress towards Colleague 2 namely:

 

a) …

 

b) …

 

c) … 

 

d) …

 

e) You sent anonymous letters to Colleague 2.

 

8. On or around 11 December 2018, you attended the Radiography department and took photos of the CCTV cameras, stating that “some people will lose their registration  because of this” or words to that effect.

 

9. [redacted]

 

10. The matters set out in paragraphs 1-8 constitute misconduct.

 

11. By reason of your misconduct [redacted] your fitness to practise is impaired.

 

 

27. Having agreed to the Council’s application to offer no evidence on a number of the Particulars, the Legal Assessor invited the Panel, in fairness to the Registrant, to give consideration to its position in deciding this case. The Legal Assessor pointed out that the Panel had been provided with a significant amount of evidence prejudicial to the Registrant, which was no longer relied on and that, had that been the position at the outset, they would never have seen that evidence. In addition there were a number of matters alleged by witnesses within the papers provided which did not form any part of any allegation and which, in fairness to the Registrant, ought to have been redacted prior to the bundle being sent out.

 

28. The Legal Assessor reminded the Panel that it was a professional panel and no doubt used to being advised to put irrelevant matters out of its mind and he advised the Panel to do that now. The Legal Assessor added that it was a matter for the Panel whether it considered this was possible or whether it felt that knowing about those irrelevant matters might prevent the Registrant from having a fair hearing, in which case it should consider recusing itself.

 

29. The Legal Assessor made reference to the case of Magill v Porter [2001] UKHL 67 in which it was stated the question for the Panel to consider was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

 

30. The Panel retired to consider this matter with care. It was cognisant of the need to ensure the Registrant had a fair hearing. The Panel acknowledged that, as a result of Colleague 2 not attending and the Panel’s ruling on Colleague 6, it was privy to a significant amount of potentially prejudicial material to the Registrant. However, as shown by its rulings so far, the Panel was being scrupulously fair to the Registrant and was confident it could and would continue to be so. As a professional panel the members were satisfied they could put all irrelevant matters out of their minds and focus on the matters remaining. This was particularly so given the discrete nature of the various matters alleged. The Panel also had the benefit of a Legal Assessor and was confident that by following a well-recorded decision-making process it could guard against the possibility, or perception, of bias.

 

31. The Panel therefore concluded that there was not a real possibility of bias and that it was appropriate for it to continue to hear the case.

 

 

32. The Registrant is a Radiographer registered with the HCPC.

 

33. At the relevant time the Registrant was employed by the United Lincolnshire Hospitals NHS Trust (“the Trust”) as a Band 6 Radiographer. The Registrant had specialities in Computerised Tomography and was based in the X-Ray Department. He had supervisory responsibility for Band 5 Radiographers and Clinical Imaging Assistants.

 

34. On 21 December 2015, concerns were raised about the Registrant for his alleged use of inappropriate and unprofessional comments at a training session hosted by external trainers. The Registrant is alleged to have made comments to a female colleague  such as "size does matter, doesn't it? You know it does" and comments of a racial nature such as making Chinese sounding words to the effect of "ching chong chang" to a Chinese colleague when they had asked a question.

 

35. The Trust subsequently acted upon the concerns raised in 2015 through the commencement of an internal investigation. However, the Trust continued to receive further concerns and formal complaints regarding the Registrant's inappropriate and unprofessional comments.

 

36. The HCPC received a referral from the Trust on 15 April 2016.

 

37. On 1 October 2018, and before the HCPC had formally dealt with the 2016 referral, the HCPC received another referral from the Trust regarding further concerns raised regarding the Registrant’s alleged continued use of inappropriate comments towards members of staff, including some of a sexual and racist nature that had been investigated as per the Trust policy and process.

 

38. The concerns raised are detailed in the formal Allegation above.

 

 

39. In reaching its decisions on the facts the Panel took into account the evidence provided by the witnesses called by the HCPC and all the documentary evidence, together with documents sent by the Registrant during the course of the hearing. The Panel was aware, however, that much of the documentary evidence was hearsay and, in a number of instances, not supported by the primary evidence given by the witnesses who attended. The Panel thus approached such hearsay with a degree of caution and gave it little weight where it was not supported by the primary evidence. The Panel also put out of its mind the evidence in the bundle that had been ruled inadmissible, namely the evidence of Colleague 2, HN and Colleague 6.

 

40. The Panel also took into account the submissions made by Ms O’Connor on behalf of the HCPC. The Registrant was not present, but did, during the course of the hearing, provided some documents, which the Panel took into consideration where relevant. The Panel also took into account what the Registrant had said during the Trust’s investigations, although it was cognisant of the fact that he had not adopted any of those comments for the purposes of this hearing and thus it was not known what his stance might have been had he attended the hearing. However, the Panel approached the alleged matters on the basis that they were contested, in the absence of any evidence to the contrary.

 

41. The Panel accepted the advice of the Legal Assessor and bore in mind that it was for the HCPC to prove its case on the balance of probabilities. It was not for the Registrant to disprove the allegations.

 

42. The Panel heard live evidence from the following witnesses, who all worked at the Trust (with job titles at the relevant time):

 

• RB - Radiographer

• PC - Radiology Service Manager and then Radiology Operational Manager

• AS - Computerised Tomography Modality Lead

• MD - Modality Lead Radiographer

• MB - Radiology Speciality Coordinator

• LH - Personal Assistant to Colleague 2

• ML - Computerised Tomography Radiographer 

 

Particulars 1(a) & 1(b) - proved

 

1. On or around 21 December 2015, made the following inappropriate and/or offensive comments to colleagues:

 

a) “Size does matter, doesn’t it, you know it does, don’t you?”, or words to that effect;

 

b) “You won’t understand that…What he’s trying to say is…Ching, chong, chang, wing, hung, ding, jong, dong”, or words to that effect.

 

43. Particular 1(a) relied on the evidence of RB, who said:

 

“In 2015, the Trust changed their internal medical imaging system. We were previously on PACS (Picture Archiving and Communication System) and moved onto to the EMRAD (EMRAD is a consortium of Trusts across the East Midlands) system. On 21 December 2015, I attended a training session to learn how to use the new EMRAD system. I cannot recall if I signed up for this session or if it was allocated to me as I recall there were a number of sessions being run. There were two external trainers from EMRAD. I can no longer recall their names. Also at the training session on that day were Mingxia Li, Senior Radiographer, and John Banks. I recall the trainers were demonstrating how to use the system on a screen and they were using a laser pointer to demonstrate what they were talking about. John Banks made a comment about the size of the laser. I interpreted the comment as joke; I did not think anything else of it. I did not say anything when he made this comment. One of the trainers made a remark in response along the line of "not how big it is, it is how you use it". The comment John Banks had made was aimed at me as I had asked the trainer a question and John Banks responded with this comment. I did not make anything of it and moved on. I was not upset by this comment and just carried on with the session.”

 

44. In her oral evidence RB confirmed that the Registrant had said something about the size of the laser, which she had interpreted as a joke and which she thought had been aimed at her. She was taken to a comment she made in an email dated 6 January 2016, in which she said she did not recall the comment being aimed at her. In response she said that she was not sure why she had said that in 2016, but that having had time to reflect about it she did believe it had been aimed at her. However she was not bothered, upset  or fazed by the comment. She said she was surprised that the matter had been escalated in this way as the whole meeting seemed friendly and the fact that the trainer had joined in with the joke meant she was surprised when they complained about it.

 

45. There was also hearsay evidence from the trainers who said that they heard the Registrant say to RB “Size matters, doesn’t it, you know it does, don’t you?” They also described RB as appearing shocked, embarrassed and disgusted at the comment. This was somewhat at odds with the account given by RB herself, who said she was not bothered by the comment. Since the trainers’ evidence was hearsay and not tested the Panel focused on the primary evidence given by RB.

 

46. The Panel noted that in the Trust investigation the Registrant said that he made the comment “size matters”, but said his comment related to the size of the icons on the screen and that it was not a sexual innuendo. 

 

47. The Panel saw no reason to doubt the evidence of RB, who believed that the reference to the size of the laser was about a penis and was meant as a joke. She  did not appear to have any axe to grind and indeed went so far as to say she was not bothered or fazed by the comment. She also said she thought the Registrant “was lovely and really good with patients.” She stated that she felt the Registrant’s sense of humour may rub people up the wrong way as some would find him funny but some wouldn’t. RB stated that she had no experience of “being rubbed up the wrong way.”

 

48. The Panel noted that ML, who also attended the training session, did not recall hearing any comment about size. The Panel did not consider this necessarily undermined the account given by RB, since it could not be expected for all present at the session to be aware of every comment made, particularly when the comment was not directed at them and they may have been focused on the training. Furthermore, the trainers in their statements said that ML came into the room after these comments had been made.

 

49. The Panel considered RB to be a very fair and credible witness and preferred her tested evidence, given on affirmation, to the untested version of events made by the Registrant during the investigation. That the comment was a sexual innuendo was further evidenced by the hearsay evidence of the two trainers. The Panel was thus satisfied, on the balance of probabilities that the Registrant made a sexual innuendo about the size of the laser dot and not that he was speaking innocently about the size of icons on the screen. Making sexual innuendos in the workplace is not appropriate and on this basis the Panel found Particular 1(a) proved. The Panel did not, however, consider the comment to have been offensive.

 

50. Particular 1(b) relied on the evidence of ML. ML gave live evidence about the training session she attended on 21 December 2015. She recalled the Registrant making a comment along the lines of “You won’t understand that…What he’s trying to say is…Ching, chong, chang, wing, hung, ding, jong, dong.” This comment was made after she asked the trainers a question about the new system they were speaking about. ML said she did not know how to respond to this and tried to continue with the training session and learn about the new system. She thought that it was just “John being John”. She said she would like to think he was joking and not being serious. The comment made her feel embarrassed and she did not think it was appropriate, especially in front of the external trainers. In oral evidence, she said that Mr Banks talks a lot and made comments like that. She said several times that she liked to think he was joking.

 

51. The Panel noted that during the Trust interview with RB on 13 February 2017, RB was asked whether she heard this comment. RB stated that she did not hear this and does not remember him making this comment. RB explained that she may have been concentrating on the session and “zoned everything else out”. In the circumstances the Panel did not consider it determinative that RB had not heard this comment.

 

52. The Panel considered ML demonstrated fairness towards Mr Banks when she said that she liked to think he was joking and not being serious. She did not seek to exaggerate the incident, but rather stated that she simply tried to continue with the training session and learn about the new system. She therefore presented as a credible witness who was simply telling the truth of the matter. 

 

53. During the Trust investigation the Registrant was asked about this and he said “I told her what he [the trainer] said was rude. I can speak a bit of mechanical mandarin and I didn’t say this.” He was asked if he could have made this comment as ‘banter’ or a joke and he replied “Maybe in private. I have memory and verbal problems."

 

54. The Panel preferred the fair, balanced, tested on affirmation evidence of ML, who had no apparent motive to make this up, to the untested denial made by the Registrant during his Trust interview. Her account is also supported by the hearsay evidence of the two trainers who both refer to having heard this comment being made by the Registrant. Such a comment was, in the Panel’s view, both inappropriate and offensive with racial undertones. Accordingly, the Panel found the Particular proved.

 

Particular 2 - proved

 

2. On an unknown date said “Chinese do not speak English only numbers; number 69, 24 etc.”, or words to that effect;

 

55. This allegation relied on the evidence of ML who stated that the Registrant made the comment “Chinese do not speak English only numbers; number 69, 24, etc.”, or words to that effect. She said he often said this and made similar comments. She said she tried to ignore these comments and continue with her work. In oral evidence, she was unable to quantify how often comments like this were made, but stated she was used to it and it went in one ear, and out the other. She said she could not remember the context of the comments, they would have been just talking generally, and he would randomly make such a comment. She said she liked to think he was joking. She said she had heard such comments before the training session in December 2015 but could not recall if they continued after the training session. 

 

56. AS also gave evidence that ML had told her that the Registrant had made a comment about her being Chinese and she had told her how upset she was about that. This lent further support to the already compelling evidence given by ML.

 

57. In his Trust interview the Registrant was asked whether he had commented about the Chinese people only speaking in numbers and he said “I was speaking about a Chinese restaurant, which is true.” He was asked whether he thought such a comment could be considered racist and he replied, “If it was said, then yes it could. I don’t remember saying it. People can take offence at anything. I am not a racist, my wife’s best friend in Chinese.” (sic)

 

58. The Panel accepted the effectively unchallenged evidence of ML that the registrant had said words to the effect that Chinese do not speak English only numbers; number 69, 24 etc and found Particular 2 proved.

 

Particulars 3, 4 and 5 - not proved 

 

59. No evidence was offered on Particulars 3, 4 and 5 and the Panel found them not proved, as detailed above.

 

Particulars 6(a), 6(b), 6(e) and 6(f) - not proved

 

60. No evidence was offered on Particulars 6(a), 6(b), 6(e) and 6(f) and the Panel found these not proved, as detailed above.

 

Particulars 6(c) & 6(d)i to vii - proved

 

6. During your employment with the United Lincolnshire Hospitals NHS Trust, you did not communicate professionally with colleagues, in that:

 

c) On 07 March 2018 and/or 11 July 2018 you commented on the capability of female drivers, stating that Dubai relaxing their rules in this respect was bad or words to that effect, in the presence of Colleague 1.

 

d) On 11 July 2018, during a meeting with Colleague 1:

 

i. You commented on the big tool/stuff you had in your pants, or words to that effect;

 

ii. You told Colleague 1 that they would find several people around them who were racist but would not reveal it, or words to that effect.;

 

iii. You told Colleague 1 that colleagues were not happy approaching them because they covered their head and because they looked different, or words to that effect;

 

iv. You told Colleague 1 how lucky they were to be in their position and if they had already worked at the Trust, they would never have been considered, or words to that effect;

 

v. You asked Colleague 1 if they had ever noticed the management structure poster in the hospital corridor and that Colleague 1 would not notice a single Asian skin in it, or words to that effect;

 

vi. You commented on Colleague 1 being black and you being white, or words to that effect;

 

vii. You told Colleague 1 that if you would become superintendent the first thing you would do is expand the bed bay area in CT waiting area by demolishing Colleague 1’s office, or words to that effect;

 

61. Particulars 6, as detailed above, relied on the evidence of AS. The Panel found her to be a particularly compelling witness. She gave clear evidence, was prepared to say when she could not remember details, she was frank and said many things favourable to the Registrant. Her account was balanced, measured, reflective and came across as wholly genuine. The Panel could discern no possible motive for her to make things up and there was no attempt to embellish matters.

 

62. Particular 6(c) referred to two dates on which the Registrant was said to have commented on the capability of female drivers. The Panel first considered the meeting on 7 March 2018. AS described how she was previously a Senior Radiographer in the United Arab Emirates. She joined the Trust in December 2017 and became the Registrant’s line manager at this point, but only met him for the first time during the meeting on 7 March 2018. She had not had any personal conversations with the Registrant about her background, but said it was quite well known amongst her colleagues. 

 

63. She said there were no issues during that meeting. After the meeting, AS returned to work in PC’s office and the Registrant came in to let them know he was leaving. According to AS he said to her “Women don’t drive in Saudi, do they?”. She said the comment was made in a very jovial manner and she found the comment funny and it did not offend her in the slightest. She said she could tell that PC was not happy about what the Registrant had said from the expression on his face.

 

64. AS said there were restrictions on women driving in Saudi Arabia back then but she thought they were removed a couple of months after the March 2018 meeting. She said she does not come from Saudi Arabia, saying that the United Arab Emirates is a different country. She said that she found it funny that the Registrant got where she was from wrong, and that a number of colleagues were confused about that. She said the comment was made during a 5-minute conversation when the Registrant wanted to say goodbye to them. 

 

65. PC, the Radiology Operational Manager and the line manager of AS, also gave evidence. PC stated that AS first met the Registrant at his return to work meeting on 7 March 2018, along with him and another colleague (IF). He stated that, at the end of his return to work meeting, the Registrant said to AS something along the lines of “I see Dubai has let women drive”, which the Registrant did not agree with because of his perception as to how badly women drive. The Registrant’s response to being challenged by PC was to flippantly reply that he would “get two years off work while the Trust screws it up anyway”. PC said that he was shocked that the Registrant had made such an offensive comment and at his perception of the disciplinary process. He said he gave the Registrant the benefit of the doubt as he had just returned to work, but this was later included in the disciplinary investigation. 

 

66. The Panel noted the slightly differing accounts given by AS and PC and noted that AS’s statement was dated 19 May 2021, nearly two years after the event. PC’s statement was dated 5 December 2019, so 21 months after the event. The Panel thus looked to see if there was any record closer to the date of the event to assist with what might actually have been said by the Registrant. Within the papers there was an investigation interview with AS conducted b PC on 18 July 2018. Since this was a formal investigation, and much closer to the event in question, the Panel considered it to be a reliable source of evidence.

 

67. The interview recorded that AS “stated that during JB's return to work meeting with IF, [AS]  and PC on the 7 March 2018 after IF had left, JB made disparaging remarks in [AS’s]  direction regarding women drivers and Dubai relaxing their rules being bad, he also made comment to the capability of women drivers. These comments were made as he left the meeting in a seemingly jovial manner. These behaviours were challenged at the time and JB shrugged it off and replied that he would be able to sit at home and make more money out of ULH for doing nothing.”

 

68. The Panel considered this to be the most reliable source of evidence and did not find it surprising that some four years or more after the event AS was unable to remember the context of the comment made by the Registrant. Based on this evidence the Panel was satisfied, on the balance of probabilities, that the Registrant did comment on the capabilities of female drivers as alleged in Particular 6(c) on 7 March 2018.

 

69. However, in relation to the second date, namely 11 July 2018, the Panel was not so persuaded. On that occasion AS made a diary entry a few days later because the whole meeting on that day had quite an impact upon her. In relation to this matter she had recorded in her diary: “I can’t remember what exactly he mentioned but he did talk about women not driving in Dubai (which is not true) I felt he found it funny that I was taking the train to travel trust-wide because I didn’t know how to drive as arab women don’t do it. I could be wrong though!”

 

70. She had not recorded that the Registrant had said anything disparaging on this occasion and there was no mention of the capability of female drivers. 

 

71. The Panel was thus satisfied that the Registrant had made the comments referred to in Particular 6(c) on 7 March 2018, but not 11 July 2018, noting that the Particular alleged and/or in relation to the dates. The Panel was also satisfied that such comments were unprofessional, as alleged in the stem of Particular 6 since they reflect both potentially racist and misogynistic views. 

 

72. With regard to Particulars 6(d)(i) to (vii), these all relied solely on the evidence of AS and relate to what was alleged to have been said by the Registrant at the meeting on 11 July 2018. The Panel considered each sub-particular separately and noted that each was recorded in AS’s diary. The Panel has already commented on how compelling a witness it found AS to be.

 

73. On 11 July 2018, by prior arrangement, she met with the Registrant to go through a Risk Assessment form provided to the Registrant prior to the meeting. AS got a coffee from the shop and asked the Registrant whether he wanted anything. He declined as he said he was diabetic. They then went to the meeting room together, located outside of the department. AS said that if the Risk Assessment form been fully completed by the Registrant in advance of the meeting, as anticipated, then it was not thought the meeting would take more than 10 or 20 minutes and half an hour at the most. However, the meeting ended up lasting around three hours because the Registrant had only provided limited information on the form and thus it was necessary to go through it in detail and fill in the missing information.

 

74. During the meeting, the Registrant told AS that he had a “good sense of humour but that not everyone understood it.” She said she knew what he meant. In her evidence, she said she felt the Registrant was quite genuine when he said certain things he said were taken out of context and he was not trying to hurt anyone. She described, though, how she became a little bit disturbed very soon after that when he made a comment about the “big stuff he had in his pants”. She described being shocked and also feeling afraid and worried because there was no one else in the meeting room. She felt that way because the comment was of a sexual nature. She said that she felt as though he was maybe trying to test her patience, to see if she would react, and that maybe she had made a mistake by saying she understood his humour. 

 

75. AS referred to a number of other things the Registrant went on to say, including that her staff were not happy to approach her because she covers her head and looks different from other people in the area. She said he said the comment as if it was not his opinion but the general consensus within the department. He also said she was lucky to have her position because she would not have been given the role if she had already worked at the Trust. He said there was not a single Asian face in the management structure poster. 

 

76. AS went on to say that the Registrant also said he was not racist but there are people around her who are racist, but will not reveal it. He said he was white and she is black but even if that is the case it does not make a difference. This made her feel discriminated against. The final comment he made that concerned her was when he said if he was a Band 7 he would make room for a bed bay by knocking down her office and the office of another colleague. She initially found this funny until she realised he was not joking. 

 

77. AS said that no one else at the Trust had ever made any racial comments to her. She said that the Registrant was very convincing when referring to the things he said not being his opinion, but rather the general consensus. She described how the move to the UK and the Trust had been a big one and she felt she had made a mistake. She felt he was trying to make her feel insecure in her new position. 

 

78. AS described not being able to focus and feeling furious about the comments, so later decided to write about this in her diary. Her diary entry was produced as an exhibit in the case. She said the entries were written either on the day or the day after, they were dated 16 July 2018. She said she tends to write in her diary when she is really upset, and the reason she wrote in her diary was because she was very disturbed following the meeting. When asked if, when she wrote it down, it was a clear recollection, she said it was. 

 

79. During the Trust Investigation the Registrant was asked about this meeting and whether he understood the accusations made. He responded saying, “I understand them but as works of fiction.” The Registrant went on to say that the meeting was much longer than he had been led to believe it would be and that he was not allowed to leave. He said that he had not taken his medication with him because  he was not expecting it to be such a long meeting and on three occasions he attempted to leave for health reasons, but was told not to. He said that by the time he did leave his blood sugar level was 2.2 which, he said, is  classed as hypoglycaemic. He was critical of AS, saying she had not read the Risk Assessment form prior to the meeting and she had no idea about his health history. He questioned her ability to carry out such a meeting without assistance.

 

80. When it was suggested that the Registrant had said during the meeting that he needed to leave as he needed mediation and food, AS said she was shocked to hear that. She also explained her understanding of symptoms of hypoglycaemia and how he was “absolutely fine". She said she never told him he could not leave, but did ask if they could complete the form first. She also offered to postpone the meeting to allow him to complete the form.

 

81. AS said the following day she spoke to PC and Colleague 2 about this. PC stated that, on 13 July 2018, AS approached him and Colleague 2 to discuss the meeting she had had with the Registrant on 11 July 2018. He said she appeared “shaken and distressed.” In his oral evidence PC described how he had been having a catch up in Colleague 2’s office when AS tentatively knocked on the door. He described how she was an energetic, positive individual but it was apparent as soon as she walked in that she was very downbeat. He said he could tell that she was nervous. 

 

82. PC detailed what AS explained to him and Colleague 2, including that the Registrant gave her the impression she should not have her job, he alluded to the fact that she was not approachable as a line manager because of her skin colour and because she wore a head cover, he said that he was just speaking on behalf of his colleagues. He had also said there was a culture of racism at the Trust, and he made a joke about the big tool in his pants. AS told PC that she was unsettled by what had happened and had written a detailed diary entry about it. 

 

83. AS described being “very very upset” for at least the first month after the meeting on 11 July. For the next 5 months, she was “still a bit disturbed”, although acknowledged that she was still settling into the role. She tried not to let the comments impact her conversations with staff. She also said she had “no intention of taking the comments against anyone”, which is why she wrote them in her personal diary. However, she was really disturbed, she wanted to leave, and as a staff manager, her only thought was she could protect her staff from dealing with a similar situation. 

 

84. The Panel considered that AS demonstrated fairness towards the Registrant throughout her evidence. She was open and honest when she said the comments about women driving in Saudi did not bother her and in fact she found it funny on 7 March 2018. In her internal statement exhibited by her, she said that she had submitted a detailed statement “which is not a complaint against John”, and said, “I would again like to highlight that John clearly mentioned that those were not his own thoughts” when referring to the comments made. She also said that she did see the Registrant after the meeting in the hospital corridor and he was joking while he gave her directions to the CT room. She said that she hoped he was ok and there did not appear to be any issues between them, which, she said, is still the case from her side. 

 

85. As already stated, the Panel found AS to be a genuine, fair and compelling witness. There was no apparent motive for her to have made these comments up and she did not appear to have any animosity towards the Registrant, indeed she spoke favourably of him. She said she would only make a diary entry when something concerned or upset her and this she had done shortly after, whilst matters were fresh in her memory. Her account was also supported by the testimony of PC who evidenced her distressed state as she recounted the things said by the Registrant during the 11 July meeting. For his part, the Registrant had described the complaints as a “work of fiction”, but that account had not been tested and indeed it was not known if that continued to be his view.

 

86. In all the circumstances and for the reasons given above, the Panel was satisfied that the Registrant had made the various comments referred to in each and every one of the seven allegations contained within Particular 6(d) and found them all proved.

 

Particulars 7(a), 7(b), 7(c) and 7(d) not proved

 

87. No evidence was offered on Particulars 7(a), 7(b), 7(c) and 7(d) and the Panel found these not proved, as detailed above.

 

Particular 7(e) - not proved

 

7. On various dates between October 2018 and January 2019 you engaged  in  conduct likely to cause alarm and distress towards Colleague 2 namely:

 

e) You sent anonymous letters to Colleague 2.

 

88. This Particular had relied to a large extent on the evidence of Colleague 2. However, Colleague 2 did not attend the hearing and Ms O’Connor did not make any application for his evidence to be adduced. Accordingly, the Panel disregarded the evidence of Colleague 2. However, there was further independent evidence given by LH about this allegation. LH was Colleague 2’s personal assistant at the Trust. She gave evidence that the two of them worked in the same office. She described the process of receiving post at the Trust and how part of her role as Colleague 2’s personal assistant was to open the post when the porters disseminated it throughout the Trust. 

 

89. LH did not recall the content of the first anonymous letter or when it was sent but remembered seeing this letter addressed to Colleague 2, and said that she knew as soon as she opened it that it was something he needed to see. Colleague 2 saved this letter and kept it in his desk drawer. She said that she could see that this letter deeply affected Colleague 2. This letter was not provided to the Panel.

 

90. LH went on to say that several weeks later, Colleague 2 received another anonymous letter. The envelope has a post mark but this is only partially visible. In her statement, LH said that Colleague 2 showed her the envelope and said “look what I received this morning”. In evidence, LH said she looked at the envelope and although the letter had been addressed to the X-Ray department at the hospital it was not the hospital’s post code. She said she recognised the post code as being that of the Registrant and she recognised it because of the number of letters she had typed to him. She said that the envelope, paper and font were the same as the previous letter and that this letter critiqued Colleague 2’s parenting and mentioned his son by name. LH said she could tell that Colleague 2 found the letter to be deeply upsetting.

 

91. The Panel was only provided with one letter, however it had no reason to doubt LH’s testimony that there had been one and possibly two others. The Particular averred that the conduct occurred between October 2018 and January 2019. However, LH was unable to say when the letters had been received and it was not possible to decipher the date on the envelope. There was thus no evidence to say that the letters had been sent between the dates alleged. Furthermore, it was likely there are a number of houses within that particular postcode. Therefore, the Panel could not be satisfied, on the balance of probabilities, that this matter was proved. 

 

92. The Panel therefore found this Particular not proved.

 

Particular 8 - proved

 

8. On or around 11 December 2018, you attended the Radiography department and took photos of the CCTV cameras, stating that “some people will lose their registration because of this” or words to that effect.

 

93. MD gave evidence that he had been spoken to by MB and another (who had not provided a witness statement) on 11 December 2018 when he was walking through the Radiology department at Pilgrim Hospital. He said, “They said that they saw John Banks coming out of the staff room and that he was muttering "some people will lose their registration because of this'', or words to that effect. I do not know the tone or the context in which these comments were made. They explained that John Banks was also taking photographs of the CCTV cameras in the department.”

 

94. Since this was hearsay evidence the Panel focused on what MB said she actually saw and heard. She confirmed that she had seen the Registrant taking photographs of CCTV cameras within the department. She did not, however, say that she heard the Registrant say that “some people will lose their registration because of this” or words to that effect. What she remembered was the Registrant “pointing to Colleague 2’s door and saying that Colleague 2 had followed him and his wife to the mammogram room and that it was not allowed and he was going to report it to the HCPC.” The Panel could see a clear link between someone losing their registration and reporting someone to their regulator and so did consider this could be said to be words to the effect of “some people will lose their registration because of this.”

 

95. MB thought the only person she had spoken to about this was the female colleague who had been with her at the time, she could not remember mentioning it to anybody else. She could not remember if MD was in post at the time. When asked by Ms O’Connor what thoughts or feelings she had had about observing the Registrant taking photographs of CCTV cameras, MB said she had been shocked because she did not think he was allowed in the department but she had no other thoughts or feelings about the matter.

 

96. There was evidence within the papers that the Registrant said he had attended the department with his wife who was having a mammogram and that he believed he was being followed by Colleague 2 at the time.

 

97. The Panel accepted the evidence of MB that she had seen the Registrant taking photographs of CCTV cameras within the department on 11 December 2018 and that she had heard words to the effect of “some people will lose their registration because of this”. The Panel therefore found this Particular proved.

 

 

98. The Panel next considered whether the facts found proved amounted to misconduct. In so doing it took into account all the evidence relating to the facts found proved and the submissions made by Ms O’Connor. The Panel accepted the advice of the Legal Assessor. The Panel was cognisant of the fact that decisions about misconduct and impairment were matters for its own judgement, there being no burden or standard of proof required.

 

99. Particular 1(a) concerned inappropriate comments of a sexual nature aimed at a female colleague during a training session with external trainers. Particular 1(b) concerned inappropriate and offensive comments with racial undertones made at the same training session. Although not specifically alleged as such, Particular 2, also concerned, in the Panel’s view, inappropriate and offensive comments with racial undertones that, according to ML, happened on a number of occasions before the training session. She could not remember if they occurred after the training session. In relation to these Particulars the Panel found the Registrant breached the 2012 Standards of Conduct, Performance and Ethics applicable to all HCPC registrants, namely:

 

3 - You must keep high standards of personal conduct, as well as professional conduct. You should be aware that poor conduct outside of your professional life may still affect someone’s confidence in you and your profession.

 

7 - You must communicate properly and effectively with service users and other practitioners.

 

100. Particular 6(c) concerned inappropriate and misogynistic comments. Particular 6(d) concerned a combination of inappropriate sexualised comments, racist comments and comments aimed at undermining a female colleague’s position. In relation to these Particulars the Panel found the Registrant breached the 2016 Standards of Conduct, Performance and Ethics applicable to all HCPC registrants, namely:

 

1.5 - You must not discriminate against service users, carers or colleagues by allowing your personal views to affect your professional relationships or the care, treatment or other services that you provide.

 

9 - Under the heading ‘Personal and professional behaviour: 

 

9.1 - You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

 

101. In respect of all the Particulars found proved (save for Particular 8, see below) the Panel also found the Registrant to have breached the following 2013 Standards of proficiency for Radiographers:

 

3.1 - understand the need to maintain high standards of personal and professional conduct;

 

6 - be able to practise in a non-discriminatory manner;

 

8 - be able to communicate effectively;

 

8.1 - be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, colleagues and others;

 

8.4 - be aware of the characteristics and consequences of verbal and non-verbal communication and how this can be affected by factors such as age, culture, ethnicity, gender, socio-economic status and spiritual or religious beliefs;

 

9 - be able to work appropriately with others;

 

9.2 - understand the need to build and sustain professional relationships as both an independent professional and collaboratively as a member of a team.

 

102. The sexual innuendo contained within Particular 1(a) was inappropriate in the workplace and, although RB did not find it offensive and one of the trainers appeared to join in with the joke, it was not behaviour that should be tolerated. When considered in isolation though, the Panel did not consider this single, sexual innuendo crossed the threshold to amount to serious misconduct. However, when considered together with the other proved comments made at the training session (and before to ML about the Chinese speaking in numbers), it suggested the beginnings of a pattern of behaviour of making inappropriate comments at the expense of female colleagues. This was further evidenced by the Registrant’s comments to AS during the 11 July 2018 meeting, where once again he was to make reference to the size of his penis, together with a whole host of other inappropriate comments. The Panel was satisfied that the comment about size made at the 2015 training session was thematically linked to the comment made to AS in 2018. It may have been the case that the Registrant was trying to be amusing at the training session, but the comment was uncalled for, particularly in the work place, seeking laughs at the expense of female colleagues. In all the circumstances, the Panel was satisfied that, when considered alongside the many other inappropriate comments made to female colleagues, Particular 1(a) amounted to misconduct, since such behaviour would be considered deplorable by other members of the profession.

 

103. The comments made by the Registrant, as encapsulated in Particular 1(b), were both inappropriate and offensive with blatant racist connotations. Racism is not to be tolerated in any walks of life, but is particularly onerous when practised at work at the expense of female colleagues. The Panel was satisfied that such comments would be considered deplorable, fell far below the standard expected of a radiographer and amounted to misconduct.

 

104. The same was true of the comments made about the Chinese speaking in numbers. ML said that the Registrant made such comments several times, although, in her words, this was “just John being John”, reflecting, perhaps, her rather generous interpretation of his behaviour. She repeatedly said she “hoped he was joking when he said it” and it was clear she was uncertain about whether this was actually the case. The Panel was firmly of the view that there was no place for racism, whether in the workplace or otherwise, and that these comments amounted to misconduct.

 

105. Particular 6(c) concerned the Registrant commenting negatively about the capability of female drivers. It was an inappropriate, disparaging comment, which was both discriminatory and representative of misogynistic views held by the Registrant. Such comments fell far below the standard expected of a radiographer and would be considered deplorable by other members of the profession. The Panel was therefore satisfied that 6(c) amounted to misconduct. 

 

106. All the comments made during the meeting with AS on 11 July 2018 must be viewed in context. AS was new to her role at the Trust and knew to this country having moved from abroad to take up the position. She described how she was “alone with no family in the UK so I was feeling vulnerable.” The meeting took much longer than anticipated because the Registrant had not properly completed the Risk Assessment form before the meeting, as he had been expected to. There were only the two of them in the room. Early on in the meeting the Registrant made reference to the size of his penis (“big tool/stuff in my pants”, or words to that effect). AS was understandably shocked and wondered whether the Registrant was in some way trying to test her patience. She chose to ignore it and carry on. That comment was uncalled for and totally inappropriate. It was made to a vulnerable female colleague. Vulnerable by virtue of the fact that there was no one else in the room and also because she was new to the Trust, new to her post and new to the country. Whether he was in some way trying to test her or whether he thought he was just being somehow amusing, making this comment was deplorable and sufficiently serious to amount to misconduct.

 

107. The Panel decided it was appropriate to consider Particulars 6(d)(ii) - (vii) collectively since they all occurred during the same meeting, they were all unprofessional and inappropriate comments that appeared to be aimed at undermining AS’s confidence in her new role in a new country. To view them in isolation would be artificial and contrary to common sense. The comments were pernicious, discriminatory and carried clear, racial undertones. The comments were hurtful and clearly (and understandably) impacted significantly upon AS, who became increasingly concerned as the meeting progressed. After the meeting she said she “could not focus” and she “felt furious” so she decided to write about the meeting in her diary. She added “I reflected on my meeting with John Banks and on the comments he made. I started to feel that he was being discriminatory or making comments about my race. I felt this was because of the comment he made that he was white and I was black. I also felt like, when John Banks made the comment about "the stuff in [his] pants", that he was trying to test my limits and see if I would get annoyed.”

 

108. The following day she spoke with her managers (Colleague 2 and PC) about the meeting and told them she had “been disturbed by what had happened.” She said she felt "very, very upset” for at least a month and even reached the stage where she considered leaving the Trust. This was because she was feeling insecure in her post following the meeting with the

Registrant, saying “I think he intentionally tried to make me feel this way.”

 

109. The Panel was of the view that the Registrant’s behaviour during that meeting demonstrated a potentially sinister mindset and underlying attitudinal issues. His attempts to belittle AS, to make her feel uncomfortable, unsure and unwelcome, demonstrated wholly inappropriate behaviour, which fell far short of the standard expected and amounted to misconduct.

 

110. The Panel did not consider the Registrant’s actions, as described and found proved in Particular 8, to be of any great concern. He had been seen taking photos of CCTV cameras and saying words to the effect of “some people will lose their registration over this”. This behaviour, must be considered in context. LH was shocked not because of what he was doing or what he may have said, but because she did not think he was allowed in that department. It was right that in a professional capacity he was not supposed to be there, however, it appears he was there in a personal capacity accompanying his wife who was due to have an x-ray. He stated on many occasions within the papers provided that Colleague 2 was spying on him whilst he was there and he took exception to this. He was therefore taking pictures of CCTV cameras to presumably build a case against Colleague 2 and made a comment along the lines of reporting Colleague 2 to the HCPC. Viewed in that context (and no other context was put forward by the HCPC), the Panel could not find any obvious culpability with the Registrant’s behaviour. It therefore concluded that Particular 8, whether viewed in isolation or in conjunction with any other behaviour found proved, did not amount to misconduct.

 

 

111. Having found the statutory ground of misconduct to be well founded, the Panel went on to consider whether the Registrant’s current fitness to practise was impaired as a result of that misconduct. In doing so it took into account the submissions made by Ms O’Connor and accepted the advice of the Legal Assessor.

 

112. Over a protracted period of time, the Registrant demonstrated a pattern of unpleasant, inappropriate, offensive, racist and misogynistic behaviour, aimed at female work colleagues. The first comments in 2015 led to an internal investigation and yet in 2018 the Registrant was to repeat similar behaviour, suggesting he had learned little from the 2015 events. He had, as is his right, denied all the matters alleged (at least within the Trust investigations) and accused others of fabrication. There was one response made during one of the internal interviews where the Registrant acknowledged that saying that Chinese people speak in numbers could be considered racist, although he went on to say he did not remember saying such words. Apart from this small concession, there was no other evidence of insight from the Registrant.

 

113. The Panel considered the behaviour demonstrated by the Registrant was capable of remedy. However, all the evidence suggests the Registrant has attitudinal issues, which are more difficult to address, particularly so where there is a lack of insight, as is the case here. Furthermore, the failure to change his behaviour between 2015 and 2018 indicates little, if any, attempt by the Registrant to remedy his behaviour during that time. With no evidence of remediation, no evidence of reflection and an almost complete absence of insight, the Panel concluded it was highly likely the Registrant would continue to behave in a similar way in the future. This means he continues to represent a risk of emotional and psychological harm to, in particular, female work colleagues. The Panel therefore found the Registrant’s fitness to practise currently impaired on the grounds of public protection. It is worth noting that work colleagues are also members of the public.

 

114. The Panel went on to consider whether this was the type of case that required a finding of impairment on public interest grounds in order to maintain public confidence in the profession and the Regulator. The Panel was satisfied that a fully informed member of the public, who was aware of all the background to this case, would have their confidence in the profession and the Regulator undermined if a finding of impairment were not made. The Registrant’s behaviour brought the profession into disrepute. Members of the public would be rightly concerned to learn that a radiographer had behaved in the ways detailed above and even more concerned if no action were taken as a result of such behaviour. Furthermore, it was a basic fundamental tenet of the profession that one should treat ones’ work colleagues with dignity and respect. This the Registrant had singularly failed to do and, given his lack of insight, it was likely he would continue to do.

 

115. The Panel therefore determined that the Registrant’s fitness to practise is currently impaired both on public protection and public interest grounds and that the allegation of impairment is well founded. 

 

 

116. In reaching its decision on sanction, the Panel took into account the submissions made by Ms O’Connor, together with all the relevant written evidence and all matters of personal mitigation, such as were known. The Panel accepted the advice of the Legal Assessor. The Panel also referred to the guidance issued by the Council in its Sanctions Policy. The Legal Assessor advised that the guidance was there to assist the Committee in making decisions that are transparent, fair and consistent and that, whilst it is guidance, the Committee should provide clear reasons for any deviation from it, in accordance with the case of PSA v HCPC & Doree [2017] EWCA Civ 319.

 

117. The Panel also had in mind that the purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also cognisant of the need to ensure that any sanction is proportionate. 

 

118. The Panel considered aggravating factors in this case to be:

 

• a repetition of similar behaviour over a protracted period of time;

 

• a pattern of unpleasant, inappropriate, offensive, racist and misogynistic behaviour, aimed at female work colleagues;

 

• a lack of insight, remediation, apology or remorse;

 

• the comments made were pernicious and discriminatory.

 

119. The Panel took into account the following mitigating factors:

 

• no previous disciplinary history;

 

• an acknowledgement by the Registrant that to make sexual innuendos during a training session, or in the workplace, would amount to bullying and harassment: however this was limited mitigation since he denied making any sexual innuendos;

 

• an acknowledgment by the Registrant that to have said the Chinese speak in numbers could be considered racist: however this was limited mitigation since he denied saying it;

 

120. In the absence of the Registrant the Panel had no evidence before it of any other mitigating factors.

 

121. In reaching its decision on the appropriate and proportionate sanction, the Panel had particular regard to the following paragraphs in the Council’s Sanctions Policy, which come under the heading of ‘Serious cases’:

 

 

 

 

 

 

 

 

 

 

 

 

 

122. The Panel approached its decision on sanction, beginning with the least restrictive sanction. In light of the nature and seriousness of the conduct, the Panel did not consider this was an appropriate case to take no further action or to consider mediation, since neither would protect the public from the risks identified by the Panel or reflect the seriousness of the misconduct. 

 

123. The Panel next considered a caution order. The Sanctions Policy states that a caution order is likely to be an appropriate sanction for cases in which: 

 

• the issue is isolated, limited, or relatively minor in nature; 

 

• there is a low risk of repetition; 

 

• the registrant has shown good insight; and 

 

• the registrant has undertaken appropriate remediation. 

 

124. The Panel noted that the behaviour was not isolated, nor could it be described as limited or minor in nature. The Panel had already identified a high risk of repetition, the Registrant had not shown good insight, nor had he undertaken any appropriate remediation. The Panel thus concluded that a caution order would not be an appropriate sanction in this case.

 

125. The Panel next considered whether to place conditions on the Registrant’s registration. The Sanctions Policy states that before imposing conditions a panel should be satisfied that: 

 

• the issues which the conditions seek to address are capable of correction; 

 

• there is no persistent or general failure which would prevent the registrant from doing so; 

 

• appropriate, realistic and verifiable conditions can be formulated; 

 

• the registrant can be expected to comply with them; and 

 

• a reviewing Panel will be able to determine whether those conditions have or are being met.

 

126. The Panel also noted from the Sanctions Policy that conditions will rarely be effective unless the Registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases: 

 

• where the registrant has failed to engage with the fitness to practise process, lacks insight or denies any wrongdoing; 

 

• where there are serious or persistent overall failings.

 

127. The Sanctions Policy goes on to say that conditions are also less likely to be appropriate in more serious cases, for example those involving discrimination.

 

128. The issues in this case do not relate to clinical concerns or other matters that might ordinarily be addressed by conditions, but rather to attitudinal issues, which are more difficult to address by way of conditions. Furthermore, before the Panel could even begin to consider formulating any conditions it would have to be satisfied that the Registrant would comply with them. There is currently no evidence to suggest the Registrant is genuinely committed to resolving the issues any conditions would seek to address, since he does not accept he has behaved in the way found proved. The Panel thus concluded that conditions would not be appropriate in this case.

 

129. The Panel next considered whether to make a suspension order. The Sanctions Policy states that, “Suspension should be considered where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited.”

 

130. The Sanctions Policy adds that 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. 

 

131. The Panel has already identified that: the concerns represent a serious breach of the Standards of conduct, performance and ethics; the Registrant has demonstrated next to no insight; the issues are highly likely to be repeated; and there is no evidence to suggest the Registrant is likely to be able to resolve or remedy his failings.

 

132. Accordingly the Panel looked at a striking off order to determine whether that would be the more appropriate sanction in this case.

 

133. The Sanctions Policy states that a striking off order is a sanction of last resort for serious, persistent, deliberate or reckless acts involving, inter alia, discrimination.

 

134. It adds that a striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant: 

 

• lacks insight; 

 

• continues to repeat the misconduct; or 

 

• is unwilling to resolve matters. 

 

135. The Panel noted that this case is characterised by a lack of insight, repeated misconduct and an absence of evidence of a willingness by the Registrant to resolve matters or indeed to recognise that what he has done was wrong. The Panel concluded that it was driven inexorably by the guidance and the Registrant’s actions to the conclusion that a striking off order was the only appropriate and proportionate sanction in this case. In 2015 it was pointed out to the Registrant that the remarks he made in the training exercise were inappropriate. However, three years later he was making not dissimilar discriminatory, sexualised and racist remarks to female work-colleague. He has shown almost no insight, the Panel has concluded that there is a high risk of repetition and the Registrant has not indicated a willingness to resolve matters.

 

136. The Panel recognised that such a sanction would have a severe impact upon the Registrant and did not reach this decision lightly. However, registrants need to be aware that if they act in an inappropriate, offensive, sexist, racist and discriminatory way towards work colleagues and then fail to acknowledge that they have acted in that way and fail to reassure a panel that they will not behave in that way in the future, then they will be at severe risk of being struck off the Register.

 

137. Accordingly, the Panel makes a striking off order and directs the Registrar to erase John Banks’ name from the Register.

 

138. In light of its decision to make a striking off order the health matter automatically falls away and did not need to be considered further by the Panel.