Michael D Hampton
Between 10 January 2013 and 16 June 2014, whilst registered as a Biomedical Scientist and employed by Public Health England, you:
1. Used inappropriate and/or offensive language about and/or to your colleagues, in that you:
a) Referred to:
i. Colleague A as a 'backstabbing ****wit' or words to that effect;
i. Colleague B as a '****' and '**********' or words to that effect;
ii. Colleague C as '**** ****wit' and/or '****wit' or words to that effect;
iv. Colleague D as 'lard ****' or words to that effect;
v. Colleague E as 'the monster from Zagreb', the 'mad Croat' and 'useless' or words to that effect;
vi. Colleague F as 'General [colleague F]' or words to that effect
vii. Colleague G as being 'idiotic and 'stupid' or words to that effect.
viii. Colleague H as 'vinegar ****' or words to that effect;
ix. Colleague I as 'Big Ears' and '[Colleague I] Skinflint' or words to that effect;
X. Colleague J as '******* bastard' or words to that effect.
b) During a one to one meeting told Colleague A to 'shut up'.
2. Refused to comply with management requests, in that you did not:
a) Access four molecular databases by 25 January 2013;
b) Select a small number of strains from the culture store yourself but asked support staff to do so;
c) Tour the laboratory to see what changes had been implemented following your absence from work;
d) Attend work related meetings;
3. The matters described in paragraphs 1 and 2 amount to misconduct.
4. By reason of your misconduct your fitness to practise is impaired.
Service and Proceeding in Absence
1. The Panel was satisfied that the letter dated 24 January 2017 addressed to the Registrant at his registered address informing him of the date, time and location of the hearing, constituted good service of notice of hearing.
2. Miss Watts explained that an earlier hearing had been postponed on the Registrant’s application. The Registrant had made a further application to postpone today’s hearing. In the absence of any evidence to support the application, this had been refused by the HCPC in a letter to the Registrant on 22 March 2017 explaining its refusal. It was also suggested to the Registrant that it may be possible for him to engage with the hearing via telephone. No further communication had been received from the Registrant. Miss Watts referred the Panel to the HCPC Practice Note on Proceeding in Absence, the history of the case and the need to consider the public interest.
3. The Panel considered that good service had been carried out and that reasonable steps to contact the Registrant had been made. It took the advice of the Legal Assessor who referred it to the HCPC Practice Note on Proceeding in Absence and to the case of GMC v Adeogba  EWCA Civ 162 and the guidance contained therein on balancing fairness to the Registrant with fairness to the HCPC and the public interest. The Panel considered the letter from the HCPC to the Registrant dated 22 March 2017 explaining the reasons for refusal of adjournment. No further application to adjourn had been made by the Registrant and there has been no further communication or evidence from him since that letter. There was no evidence before the Panel to support such an application. The Panel concluded there was a public interest in proceeding and witnesses were present and ready to proceed. The Registrant has not engaged although he is aware of these proceedings. In all the circumstances the Panel decided to proceed in the absence of the Registrant.
Application to amend the Allegation
4. Miss Watts sought amendment to the allegation to remove several words in allegation 2 b, c, and d and a typographical error in the numbering of particular 1. She explained that notice of the application had been sent to the Registrant on 24 June 2016. The Registrant had not responded and has made no objection to the proposed amendments. Miss Watts submitted that these amendments provided clarity and better reflected the evidence from the witnesses, all of which has been sent to the Registrant. She said these amendments were not prejudicial to the Registrant.
5. The Panel took advice from the Legal Assessor. He advised that the Panel has discretion to allow amendment but must be mindful of the interests of justice and the need to ensure fairness to all parties. It should consider whether the changes proposed are significant and alter the nature or gravity of the allegation. The Panel should also be mindful of the public interest.
6. The Panel considered that the amendments could be made as they did not materially alter the nature or gravity of the allegation. Further, the Registrant was aware of the proposed changes and had not objected. The Panel allowed the application to amend.
7. The Panel noted that the Registrant had raised in his email of 12 March 2017 the issue of the hearing being held in private. It heard submissions from Miss Watts and took advice from the Legal Assessor. It decided it had no proper basis on which to depart from the open justice principle and determined that the hearing would proceed in public.
8. The Registrant was a Band 6 Biomedical Scientist who commenced employment with Public Health England on 12 November 1990. The Registrant worked in the Gastrointestinal Bacteria Reference unit. His role was to carry out molecular epidemiological work.
9. It is alleged that the Registrant used inappropriate and /or offensive language about and to colleagues. It is further alleged that the Registrant did not comply with management requests to allow access to molecular databases, asked a colleague to select strains from the culture store when asked not to do so, refused to tour the laboratory to see what changes had been made in his absence and did not attend work related meetings.
The HCPC Witnesses
10. Colleague F was referred to her Witness Statement which she confirmed was signed by her and formally adopted as her evidence. She is Head of the Gastrointestinal Bacterial Reference Unit at Public Health England (“PHE”), where the Registrant worked. The witness told the Panel that she had not witnessed the Registrant’s behaviour but had reports from staff members about his unacceptable behaviour. She said she had dealt directly with the Registrant. He was difficult and generally failed to answer e-mails and deal with requests. The witness appointed Colleague A as the Registrant’s Line Manager and the Registrant was unhappy with that appointment. He had a poor relationship with his colleagues, particularly Colleague A, and was challenging to manage. He wanted to work alone and not as part of the team.
11. The witness said that there had been issues with access to the Registrant’s molecular databases since 2008. They were password protected and others could not access them if he was not around or was on annual or sick leave. This caused embarrassment with NHS Scotland as it delayed sharing information for a number of days. She also explained that the department was reorganised in 2013 and on returning to work after a lengthy absence, the Registrant repeatedly refused to take a tour of the reorganised department or to attend management meetings. A tour was part of the Registrant’s return to work programme. She also told the Panel that she was unaware of being called “General [Colleague F].” She had never heard the Registrant use swear words but he had a reputation of speaking that way. She said there was not a culture of swearing in the department but she said she was unaware that a swear-box was present in the laboratory.
12. The witness was referred to his Witness Statement which he confirmed was signed by him and was formally adopted as his evidence. He is the Head of Operations Reference Microbiology Service at PHE. He conducted the investigation in the disciplinary proceedings of the Registrant. He confirmed that all witnesses had agreed their witness statements, except the Registrant. The Witness said Colleague A had said to him that the Registrant swore a lot, but the witness had not heard the Registrant swear.
13. The witness was referred to his Witness Statement which he confirmed was signed by him and was formally adopted as his evidence. He is a Biomedical Scientist at PHE, a former colleague of the Registrant. He saw the Registrant frequently at work. He confirmed he was referred to as a “****wit” by the Registrant frequently, around the period when the laboratory was reorganised. The witness said he did not feel “brilliant” about the language used and he did not like it. He may have responded the same way. The Registrant did not seem to like anyone in the workplace but it seemed to just be the way the Registrant was made. If it happened today, the witness said he would report the Registrant. Other colleague’s did swear but it was not aimed at anyone.
14. The witness said the Registrant referred to Colleague D as “lard ****” behind her back which he believed was inappropriate. The Registrant called Colleague E “Croatian E” but he did not think that was malicious as there were two colleagues of the same name, one from Scotland and one from Croatia. However, the Registrant referred to her as “the mad Croat” and “the monster from Zagreb” behind her back. He did not know if that colleague was aware of the names the Registrant used. “General [Colleague F]” was a name he himself had coined, and was not one the Registrant used. As to the argument with Colleague G, the witness recalled the argument but not the words used. The Registrant had used the name “[Colleague I] Skinflint” to Colleague L who seemed to laugh it off.
Application to Amend the Allegation
15. Miss Watts advised the Panel that the allegation contained a time period. She told the Panel this period commences after the Registrant returned from sick leave. Some of the evidence indicates that some of the language used was in a period before the Registrant had been absent through sickness. Miss Watts sought to remove the dates so that the allegation reads from “Whilst registered as a Biomedical Scientist...” with no reference to a time period. She said this made the allegation no more serious and that no prejudice arose in these circumstances.
16. The Panel took the advice of the Legal Assessor who reminded it of the importance of considering the interests of justice, fairness and the public interest. He advised them to consider whether the amendment proposed was material and whether it altered the nature and gravity of the allegation.
17. The Panel considered matters carefully. It decided that it would not grant the application to amend the charge as proposed as it considered it was not fair or appropriate to do so as at this stage. It considered that the proposed amendment widened the scope of the allegation and no notice had been given to the Registrant. It appeared to the Panel to be an attempt to fit the allegation to the evidence just given.
18. The witness was referred to her Witness Statement which she confirmed was signed by her and was formally adopted as her evidence. She is a Medical Laboratory Assistant, now a Band 4, at PHE. She knew the Registrant as a colleague and saw him more often when the laboratories merged. She confirmed she had given evidence to the internal investigation in June 2013 into the Registrant’s behaviour and she confirmed the notes of that meeting were accurate.
19. The witness told the Panel that on one occasion, the Registrant had left very specific written instructions for washing up culture blocks in the laboratory. The Registrant believed that she had not followed his instructions and had shouted very loudly in her face and called her “idiotic” and “stupid”. She told the Panel she had been upset and fearful. She reported the incident to management. She said she heard him call Colleague C a “f*** something” and he would frequently mumble swear words to himself under his breath. She said she considered the Registrant’s language was wrong.
20. The witness was referred to her Witness Statement which she confirmed was signed by her and was formally adopted as her evidence. She is Head of the Salmonella Reference Service at PHE. She was the Registrant’s line manager from around 2009. The witness said that she had not heard inappropriate language but the Registrant had a reputation of not behaving well with colleagues. She knew from Colleague A that the Registrant would regularly not attend scheduled meetings. She recalled one specific meeting the Registrant did not attend and he said he did not get the email. He was difficult to manage and mediation was later arranged to deal with the difficulties.
21. The witness said that non-attendance at the meeting was a problem as the Registrant had returned after a long period of sickness absence and the nature of the work had changed in that time including some new techniques. She did not now specifically recall the Registrant saying “shut up” but did recall the conversation with Colleague A being “heated.” She said it was likely the Registrant would use that sort of language. He was not an easy person to manage with set ideas and the witness had concerns about colleague A’s relationship with the Registrant. She said he did have a reputation for using inappropriate language. She was not aware of there being a swear-box in the laboratory.
Submissions for the HCPC
22. Miss Watts referred the Panel to the terms of the allegation. She told the Panel that she was duty bound to renew the application to amend in order to remove the time period from the allegation. She submitted that the evidence was sufficient to prove the first part of the allegation but it would likely fail if the time period were not removed. It added nothing. She submitted that no prejudice to the Registrant arose as a result of this proposed amendment. She reminded the Panel of the risk of under prosecution and the date was a technicality. The dates in the allegation appear to have been made in error. She submitted that the public interest required the Panel consider this matter very carefully. She handed a written Closing Submission to the Panel.
23. The Panel took advice from the Legal Assessor. He reminded it to carefully consider the further application to amend and to consider the interests of justice and fairness. The public interest also required to be considered, as did the risk of under prosecution. He advised the Panel on hearsay evidence and the guidance in Thorneycroft v NMC  EWHC 1565 (Admin) and NMC v Ogbonna  EWCA Civ 1216. On the evidence, the Legal Assessor reminded the Panel of the balance of probabilities and the need to assess and weigh all the evidence carefully. As to impairment, he reminded it of the guidance in the HCPC Practice Note on Impairment, in Roylance v GMC (No. 2)  1 AC 311. On assessment of fitness to practice and current impairment, he referred the Panel to the guidance in CHRE v NMC and Grant  EWHC 927 (Admin). He reminded the Panel of the central importance of the public interest.
Decision on Amendment
24. The Panel accepted the advice of the Legal Assessor and considered this application carefully. The Panel noted that the Registrant had not responded regarding the time period set out in the allegation. The Panel considered the issue of prejudice to the Registrant and fairness but were also mindful of the public interest.
25. The Panel was concerned as to the very late application to amend, after the close of the HCPC’s case which could suggest the allegation was being fitted to the evidence heard. However, the Panel having considered Miss Watt’s further submissions formed the view that, on balance, the amendment proposed does not alter the nature and gravity of the allegation and it is not prejudicial to the Registrant to remove the timeframe. The date or dates on which the words and behaviour alleged took place is not critical to the allegation. The chronology is not material and is not an issue which goes to the seriousness or gravity of the allegation as a whole. The Panel is also mindful of its role in protecting the wider public interest and ensuring a fair and proper hearing of matters before it. In all the circumstances, the Panel determined to allow the application to amend.
Decision on Hearsay
26. The Panel considered the guidance in Ogbonna and Thorneycroft. It looked carefully at the guidance and factors set out in these cases and was mindful that that test is one of fairness to both parties, but bearing in mind, in particular, the absence of the Registrant in this case.
27. The evidence of Colleagues A and TW is the sole and decisive evidence of parts of particular 1. Their evidence was challenged by the Registrant during the investigation. There was clear evidence of difficulties and animosity in the relationship between the Registrant and colleague A. The Panel could not assess that potentially important aspect, or the apparent conflict in the evidence, as it did not hear from either party.
28. The Panel noted the e-mails to the two witnesses, Colleagues A and TW, but it was not satisfied that there were good and cogent reasons for the non-attendance of these important witnesses. No Witness Summons had been issued by the HCPC. The Panel considered that the allegation, if proved, would have a serious impact on the Registrant’s career. Further, the Panel was not satisfied that the evidence sought to be admitted was demonstrably reliable and it was not able to test its reliability with other witnesses or evidence. The Panel accepts that the evidence, such as it is, was sent by the HCPC to the Registrant, but it is clear this particular evidence is disputed.
29. The evidence of both Colleagues A and TW is critical to proving parts of the allegation as to the words allegedly used by the Registrant. No direct evidence was heard in respect of a number of the particulars alleged. All the Panel has before it is the hearsay evidence of Colleagues A and TW given in 2013 to the PHE investigation. That evidence is set out in the meeting records of the investigation and the terms and extent of that investigation were not set out in the evidence.
30. In all the circumstances, and having considered the factors and guidance in the case law, the Panel concluded that it would not be fair to admit the hearsay evidence in the statements of Colleagues A and TW.
Decision on Facts
31. The Panel assessed all the evidence it heard and the documents before it. It accepted the advice of the Legal Assessor. The Panel was aware that on matters of fact, as distinct from issues of lack of competence, misconduct and impairment, the burden of proof rested on the HCPC and that the standard of proof was the civil one, namely on the balance of probabilities. It was satisfied that all the witnesses it heard from did their best to recall events and sought to assist the Panel. It found all the witnesses credible. It made the following findings on the facts:-
1 (a) (i) Not Proved - The Panel did not admit the evidence of colleague A. There was no evidence to support this charge.
1 (a) (ii) Not Proved - There was no evidence to support this charge.
1 (a) (iii) Proved – The Panel accepts the evidence of Colleagues C and G.
1 (a) (iv) Proved – Colleague C’s evidence supported this particular on the basis that it was used about Colleague D and not to her. The language is offensive and inappropriate.
1 (a) (v) Proved – Colleague C’s evidence was that he heard the Registrant say these words about Colleague E but not to her. The language is offensive and inappropriate.
1 (a) (vi) Not Proved – Colleague C’s evidence was that he had developed this nick name and he had not heard the Registrant use it.
1 (a) (vii) Proved- Colleague C’s evidence was that he had overheard the argument and Colleague G’s evidence was clear and supported this particular. She was upset and offended. The language is offensive and inappropriate.
1 (a) (viii) Not Proved – There was no evidence to support this charge.
1 (a) (ix) Not Proved - “[Colleague I] Skinflint” Colleague C’s evidence was that this term was used about Colleague I. The Panel did not hear from Colleague I and had no evidence that this language was inappropriate or offensive. It is not self-evidently offensive or inappropriate language.
1 (a) (ix) Not Proved – “Big Ears” There was no evidence to support this particular.
1 (a) (x) Not Proved – There was no evidence to support this particular.
1 (b) Not Proved – Colleague H did not know what had been said, although she knew that meetings had been “heated”. She could not recall the Registrant using the words “shut up”.
2 (a) Not Proved - There was evidence from Colleague F that the databases were not accessible when the Registrant was not at work. The Panel found no evidence that the Registrant “refused” to comply with requests to access them. Colleague F told the Panel the Registrant was on leave at the time access was sought. Whilst the Registrant may have procrastinated, the Panel could find no evidence that he had deliberately refused to comply with requests.
2 (b) Not Proved - Colleague F’s evidence was hearsay evidence and, in any event, she could not recall who had told her. Colleague H could not remember the incident.
2 (c) Proved – The evidence from Colleague F was that the Registrant had refused to go on the laboratory tour.
2 (d) Proved – There was some evidence that the Registrant refused to comply with requests to attend work related meetings. Colleague F referred to lunch time meetings the Registrant failed to attend, although these were not mandatory. Colleague H referred to the Registrant’s performance management meetings. She said that the Registrant had failed to attend scheduled meetings with his line manager, saying on one occasion that he had not received the e-mail. She said the Registrant had walked out of a number of meetings. On balance, the Panel found that the Registrant had refused to comply with requests to attend work related meetings.
Decision on Misconduct
32. The Panel accepted the Legal Assessor’s advice and carefully considered Miss Watts’ written submissions. It is mindful of the advice in the Roylance case.
33. It was clear to the Panel from the evidence of Colleague C that prior to the Registrant’s ten month absence on sick leave, there had been a culture of swearing by some members of the laboratory including the Registrant. He said that others would use the “f” word and there was a swear-box from which proceeds went towards the Christmas party. In his evidence he was very contemptuous of the Registrant and he referred to the Registrant as “Teflon Mike”. Indeed, in his interview during the investigatory meeting, when asked what he thought of the Registrant he said that he was “a total bloody waste of space”, swearing himself in what was a formal investigation.
34. Colleague C admitted that it was he who had coined the name “General [Colleague F]” when referring to his senior manager Colleague F, and the Registrant had not used that term. He told the Panel that whilst he found it objectionable that the Registrant frequently called him “****wit” he gave as good as he got, often in similar language. He said that it was “kill or be killed”.
35. It was clear from Colleague C and G’s evidence that there had been significant management failures in the department. Colleague C said that their earlier manager had rarely been present as he was almost constantly away trying to obtain research funds. Colleague H said that although she had taken over line management of the Registrant in 2009, she believed she had only done one appraisal with him, possibly in 2010. He should have been appraised annually and she said that his lack of appraisal may have been due to his being absent on sick leave as appraisals are only performed every April. In the Panel’s view, the Registrant’s appraisals should have been carried out regularly which may have prevented some of his behaviour. She said that she had very few formal meetings with the Registrant and it is apparent that neither she nor Colleague F were aware of some of the culture of the laboratory, neither having been aware of the swear-box and neither having received formal complaints about the Registrant.
36. Colleague G said that she had felt wholly unsupported by management following the altercation with the Registrant. She had reported it and following an investigation, the onus had been put on her to decide how it should be dealt with which she felt was very inappropriate. In the decision letter following the disciplinary proceedings sent to the Registrant on 16 June 2014, it was conceded that there had been management failings over a sustained period of time. The Panel has set this background out in detail to show the context in which the incidents took place.
Particular 1 (a) (iii)
37. In the light of Colleague C’s own evidence, the Panel finds that the use of the word “****wit” was consistent with language used between the Registrant and Colleague C, which although objectively unpleasant does not amount to misconduct in the particular context of their communications with each other.Colleague C admitted that he had never felt the need to report it to management.
Particular 1 (a) (iv)
38. On the evidence of Colleague C, this phrase was never used to the colleague involved and the Panel finds that this is an example of distasteful nicknames being used and nicknames in a similar vein such as “General [Colleague F]” and “Teflon Mike” were used by Colleague C. It was part of an objectionable culture within the organisation and within the particular circumstances of this case the Panel does not find that this amounts to misconduct.
Particular 1 (a) (v)
39. For the same reasons as above, the Panel does not find that this amounts to misconduct.
Particular 1 (a) (vii)
40. The use of the words “idiotic” and “stupid” to Colleague G was rude and offensive. However, the Panel is concerned by the description of how they were used. Colleague G was a junior colleague and the Registrant was berating her for a perceived failure by her to follow his very detailed instructions as to how to wash culture blocks. She said that he was much taller than she was and stood extremely close to her, shouting in her face. Although she shouted back and Colleague C described the altercation as “six of one and half a dozen of the other”, she had found it very distressing and reported it to management. In the Panel’s view, the Registrant’s behaviour was tantamount to bullying and is so serious as to amount to misconduct.
Particular 2 (c)
41. Colleague F told the Panel that she thought it would be helpful to the Registrant if, as part of his return to work following his ten month absence, he was given a tour of the department to be shown where things now were and to meet new staff. During the investigation, the Registrant said that he had found this “humiliating” The Panel finds that although it might have been helpful to the Registrant to tour the department, his refusal to do is not so serious as to amount to misconduct.
Particular 2 (d)
42. There were two types of meetings referred to by the witnesses. The Panel finds that nonattendance at the non-mandatory meetings does not amount to misconduct. The other meetings were part of a formal performance management programme designed to improve the Registrant’s performance which had been decreasing prior to his ten month sick leave and to aid his return to practise. These meetings were mandatory. There had been significant changes to procedures in the Registrant’s absence and he needed to learn new techniques and to have training in them. The Registrant’s refusal to comply fully with the programme and failure to attend some of the meetings and walk out of others is, in the Panel’s view, a serious falling short of what would be expected of a Registrant in those circumstances and amounts to misconduct.
Decision on Impairment
43. The Panel accepted the advice of the Legal Assessor and carefully considered whether the Registrant’s fitness to practise is currently impaired. It kept in mind the central importance of protection of the public, the wider public interest and the guidance in the Grant case.
44. The Registrant has not attended this hearing and has not engaged meaningfully with it. Therefore, although the misconduct found proved could be remedied by the Registrant provided he properly reflects on his behaviour, showed insight into the seriousness of it and how he could ensure it would not be repeated, there is no evidence before the Panel that he has remedied it or developed any insight. Consequently, the Panel cannot be satisfied that it will not be repeated. Without such insight, remorse and remediation, the Panel is satisfied that on both the personal and public component of impairment, the Registrant is currently impaired.
Decision on Sanction
45. The Panel heard from Miss Watts who referred it to her written submissions and to the HCPC’s Indicative Sanctions Policy.
46. The Legal Assessor referred the Panel to the HCPC Policy and reminded it to act proportionately. He advised the Panel to consider sanction in ascending order and to apply the least restrictive sanction necessary to protect the public. It should also consider any aggravating and mitigating factors and bear in mind the public interest and that the primary purpose of sanction was protection of the public.
Mitigating and Aggravating Factors
47. The Panel first identified what it considered to be the principal mitigating and aggravating factors in this case. The mitigating factors identified are:-
i. The Registrant has not previously come to the attention of the HCPC.
ii. There was a lack of effective management of the Registrant.
iii. The environment and context in which the Registrant worked.
48. The Panel agreed with Miss Watt’s submission on aggravating factors. These it identified as follows:-
ii. The Registrant has not meaningfully engaged with the HCPC.
iii. He has not shown any insight, remediation or remorse.
iv. His conduct found proved included use of abusive language to a junior colleague.
49. The Panel approached sanction, beginning with the least restrictive first, bearing in mind the need for proportionality. Taking no further action and the sanction of a Caution Order would not reflect the Registrant’s lack of insight or remediation. These sanctions would not be adequate to protect the public or to satisfy the wider public interest of maintaining confidence in both the profession and the regulatory process. Neither order is appropriate nor proportionate in the circumstances of this case.
50. The Panel next considered a Conditions of Practice Order. The Panel has no information before it as to the Registrant’s current circumstances or whether he would be able or willing to comply with conditions. The Panel therefore cannot formulate workable, realistic and proportionate conditions of practice. In addition, such an order would not protect the public interest, or maintain public confidence in the profession or the Regulator.
51. The Panel next considered a Suspension Order. The Registrant has shown no insight, remorse or remediation in respect of his behaviour and the Panel has found there is a risk of repetition. He has not engaged with his Regulator which leaves the Panel with no alternative but to consider a Suspension Order. In all the circumstances, the Panel considers that a Suspension Order for six months would be the appropriate and proportionate sanction. It would sufficiently protect the public and the wider public interest and uphold public confidence in the profession and the HCPC as a Regulator. It would also provide the Registrant with an opportunity to engage with the HCPC to reflect on his behaviour and develop insight.
52. A future Reviewing Panel may be greatly assisted by the Registrant engaging with the HCPC and providing evidence of insight and remediation such as a reflective piece and testimonials from paid or unpaid work.
The Order imposed today will apply from 10 May 2017 (the Operative Date).
This Order will be reviewed by the Committee no later than 10 November 2017 or earlier if evidence which is relevant to the order becomes available after it was made.