Mr Julian B Roberts

: Biomedical scientist

: BS23641

Interim Order: Imposed on 03 Nov 2017

: Final Hearing

Date and Time of hearing:10:00 03/11/2017 End: 17:00 03/11/2017

: The Foundry, 17 Oval Way, London, SE11 5RR

: Conduct and Competence Committee
: Struck off

Allegation

During the course of your employment as a Biomedical Scientist for Northern Lincolnshire and Goole NHS Foundation Trust:

 

1. You behaved inappropriately towards Colleague A in that:

 

a) On or around 28 May 2015 you smacked her bottom;

 

b) On an unknown date between March 2014 and June 2015 you

stated that you would “rather work on the night shift with her as she

looks better in a skirt” or words to that effect;

 

2. You behaved inappropriately towards Colleague B in that:

 

a) On or around 26 May 2015 you stated “it’s tight round here” or

words to that effect, whilst you brushed past Colleague B with your

hands placed around her hips;

 

b) On or around 28 March 2015 you told Colleague B “to wear

something sexy” or words to that effect;

 

c) On or around 28 March 2015 you made reference to “having a

threesome” or words to that effect;

 

3. You behaved inappropriately towards Colleague C in that:

 

a) In or around October 2014 you stated “are you getting on your

knees for me” or words to that effect;

 

b) On various dates between 13 October 2014 and June 2015 you

referred to Colleague C as “little knickers” or words to that effect;

 

c) On various dates between 13 October 2014 and June 2015 you

held her hand;

 

d) On an unknown date between 13 October 2014 and June 2015 you nudged Colleague C and stated “the things we could do in two

minutes” or words to that effect;

 

4. Your actions described in particulars 1, 2 and 3 were sexually motivated;

 

5. Your actions described in particulars 1, 2, 3 and 4 constitute misconduct;

 

6. By reason of your misconduct your fitness to practise is impaired

Finding

Preliminary Matters

Application to Amend

1. At the beginning of the hearing, Ms Sheridan, Counsel appearing on behalf of the HCPC, applied to amend particulars 2(b) and 2(c) to correct the date from March to May. The Registrant did not oppose the application.

2. The Panel decided to allow the proposed amendments in full. It was of the view that the amendments were minor in nature, simply correcting the date, which had been apparent on the face of the papers, and which the Registrant had pointed out at an earlier hearing. They did not materially change the nature of the allegations against the Registrant. The Panel was satisfied that there would be no prejudice to the Registrant in allowing the proposed amendments.

Procedure

3. At the outset, the parties invited the Panel to break down the stages to hear and make findings on the facts, before, if appropriate, continuing to the next stages of misconduct and impairment. Ms Sheridan explained that the nature of the allegations meant that, although the Registrant was unrepresented, Ms Robinson of Counsel had been appointed under Rule 10A(5) to cross-examine HCPC witnesses Colleagues A, B and C. Ms Sheridan submitted that in fairness to the Registrant, the process would be more straightforward for him if he knew the outcome of the fact-finding stage so that he would be able to appropriately focus his submissions for the misconduct and impairment stages (if reached), when he would be representing himself.

4. The Panel agreed that in order to better facilitate a fair hearing for the Registrant, it would be appropriate to break down the stages to consider and to make findings on the facts first.

Background

5. The Registrant is a Biomedical Scientist (BMS) registered with the HCPC. On 11 August 1984 he stared working at Pilgrim Hospital (the Hospital) within Northern Lincolnshire & Goole Hospitals NHS Foundation Trust (the Trust) as a BMS and then a Senior BMS. In 2011 he was made redundant but continued to work as a BMS at the Hospital under a Band 5 contract.

6. On 28 May 2017, it is alleged that the Registrant walked past Colleague A, a Biomedical Assistant (BMA) who was working in the laboratory, and smacked her bottom. This was witnessed by DG, a Specialist BMS, who reported it to GC, the Advanced Practitioner in Clinical Chemistry.

7. The matter was investigated by RW, Pathology Site Manager and Blood Sciences Manager at the Hospital. During the course of the investigation, further allegations arose in relation to Colleague A and two other female BMAs, Colleague B and Colleague C.

8. In respect of Colleague A, it is also alleged that the Registrant said to her words to the effect that he would rather work with her on the night shift as she looked better in a skirt.

9. In respect of Colleague B, it is alleged that the Registrant:

• on or around 26 May 2015, brushed past her in the laboratory with his hands on her hips, saying words to imply that it was a tight space; and

• on 28 May 2015, told her to wear something sexy, and made reference to having a threesome.

10. In respect of Colleague C, it is alleged that the Registrant:

• in or around October 2014, said to her ‘are you getting on your knees for me’, when she was knelt down working at a computer; and

• between 13 October 2014 and June 2015, called her ‘Little Knickers’, held her hand, and said words to the effect of ‘the things we could do in two minutes’.

11. It is further alleged that each of these incidents was sexually motivated.

Decision on Facts

12. On behalf of the HCPC, the Panel heard evidence from Colleague A, Colleague B (who gave evidence via telephone), Colleague C, RW, DG and JC. The Panel was also provided with a documentary exhibits bundle, which included initial accounts of complaints, summaries of the investigative interviews, the Investigation Report completed by RW and the management case.

13. The Registrant gave evidence and provided a bundle of documents, which contained an initial response to the HCPC allegations from the Registrant, a statement from RA, a Band 3 BMA within the Hospital, a testimonial from AG, a Specialist BMS and former colleague at the Hospital, and AH, an Advanced BMS and former colleague.

14. The Panel heard and accepted the advice of the Legal Assessor. The Panel understood that it had to consider each sub-particular separately. The Panel understood that the burden of proving each individual fact rests always on the HCPC and that the HCPC will only be able to prove a particular fact if it satisfies the required standard of proof: namely the civil standard, whereby it is more likely than not that the alleged incident occurred.

15. The Panel considered the evidence of Colleague A. She was a BMA at the Hospital, aged 23 when she started working there in March 2014. The Panel observed her body language and demeanour and it was clear to the Panel that she was nervous and upset having to relay the matters of 2015. The Panel noted that she had a nervous laugh, which portrayed her embarrassment at the sensitive evidence she was giving. The Panel considered her to be an honest and straightforward witness, who was clear and cogent in her evidence. She was, in the Panel’s view, a balanced witness, readily acknowledging that the Registrant was very knowledgeable professionally and also helpful. It considered her to be a very credible witness, and that it could rely on her evidence.

16. The Panel considered the evidence of Colleague B. She was a BMA at the Hospital, aged 22 when she started working there in October 2014. The Panel acknowledged that, as she had given her evidence over the telephone, it had not had the opportunity to see her body language and demeanour in its assessment of her evidence. However, the Panel considered that she had been consistent in her original statement, her investigative interview, her HCPC statement and her telephone evidence to the Panel. She had been clear in her telephone evidence, and her responses in cross examination had, in the Panel’s view, reinforced that consistency. The Panel also noted that she confirmed that the Registrant was a good BMS, whose clinical knowledge she respected. The Panel considered that she was a credible witness and the quality of her evidence was not diminished by the fact that she gave evidence over the telephone. The Panel was satisfied that it could rely on her evidence.

17. The Panel had regard to the evidence of Colleague C. She was a BMA at the Hospital, aged 19 when she started working there in October 2014. She had clearly been very nervous when she first started her evidence, but became stronger as she settled and was able to counter suggestions put to her in cross examination. The Panel found her evidence to be articulate and compelling. She also identified that the Registrant was a more senior member of staff, whose clinical expertise she respected. The Panel was satisfied that it could rely on her evidence.

18. The Panel considered the Registrant’s contention that the evidence of Colleagues B and C was contaminated as a result of JC having questioned them together. It considered whether either or both of them may have misinterpreted or exaggerated events, either because of the circumstances in which the matters had come to be reported, or when reflecting on past events together. It considered that the coping mechanism for both of them had been to ignore the Registrant’s behaviour, and not to be seen to make a fuss. It took account of the high regard in which they had both held the Registrant in respect of his clinical expertise and experience. The Panel concluded that each of them had been balanced in their evidence. The Panel was satisfied that any discussions that Colleagues B and C may have had together had not in any way influenced each other to overplay or exaggerate their own experiences. Therefore, the Panel rejected the Registrant’s contention that their respective evidence had been contaminated.

19. The Panel had regard to the evidence of DG, Specialist BMS at the Hospital. It accepted that she and the Registrant had a difficult working relationship, and that it had particularly deteriorated since 2011 when the Registrant had returned to the Hospital as a Band 5 BMS following his redundancy. It considered that DG had been open about the tensions which existed between her and the Registrant. Nevertheless, the Panel noted that she had immediately reported what she had seen to senior staff, who then spoke to Colleague A. DG had not spoken to Colleague A before reporting the matter, and her account and that of Colleague A were, in the Panel’s view, consistent with each other. The Panel did not consider that her evidence was undermined by any hostility she may have towards the Registrant.

20. The Panel had regard to the evidence of JC, the Blood Sciences Advanced Practitioner and Deputy Laboratory Manager at the Hospital. It considered that JC had been appointed to the role of Deputy Manager at a time when there was a great deal of change happening at the Hospital, and he was inexperienced in the role. The Panel considered that JC was a credible witness. He had, in the Panel’s view, clearly reflected on matters, and identified deficiencies in the way he had handled matters, in particular, speaking to both Colleagues B and C together when they made their respective complaints, and not addressing, there and then, what he had witnessed, in relation to the Registrant and Colleague C.

21. The Panel had regard to the evidence of RW, Pathology Site Manager and Blood Sciences Manager at the Hospital. It considered that this witness had struggled to recall events due to the passage of time, and at times was indecisive in his evidence. It noted that his role had been to conduct the investigation into the allegations, which included conducting the investigative interviews with the witnesses and the Registrant, but he had no first-hand knowledge of any incident.

22. The Panel considered the evidence of the Registrant. It took account of his good character and that Colleagues A, B and C had held his professional skills in very high regard. It considered that he had, at times, been inconsistent in his answers. He did not have a clear recollection of matters, and gave many of his answers using the term “I would have…”. When this was clarified with him by the Chair, the Registrant explained that he had pieced together some of the events. The Panel noted that he was trying to respond to allegations dating back some two-and-a-half years. While the Panel did not find that the Registrant was necessarily trying to mislead it, it was of the view that he had come to believe his account over time. The Panel treated his evidence with caution.

Particular 1(a) – Proved

1. You behaved inappropriately towards Colleague A in that:

a. On or around 28 May 2015 you smacked her bottom;

23. The Panel finds particular 1(a) proved.

24. Colleague A described that on 28 May 2015 she had been in the laboratory working at an analyser and marking down quality control results. She had not noticed when the Registrant entered the laboratory, but he was working a late shift so the time was about 12:30pm and he had to pass her to collect his lab coat. She said:

“As he walked past me he hit me on the bottom. This happened very quickly and his contact with me only lasted for a couple of seconds, as he walked passed. He touched me on the bottom with one hand, although I am not sure which. I would describe the contact that he made with my bottom as being a tap, it was not painful in any way but I was very shocked.”
She did not think that the touch could have been an accident. It did not feel that way to her and felt purposeful.

25. Colleague A said in her oral evidence that although she had not seen the contact, she had felt it on the right hand side of her bottom, and it felt like the palm of his hand rather than the back of his hand. She agreed that the laboratory was undergoing a re-fit and so there was less space than normal, but she did not agree that the touching could have been accidental. It had not felt like he had brushed past.

26. In the Panel’s view, the evidence of Colleague A was supported by the evidence of DG. DG said she had been in the laboratory at the time and had been looking out for the Registrant as she was due to hand over to him. She had described the contact as a “smack” in her statement. In her oral evidence she did not accept that the Registrant had just bumped into Colleague A. She said that if the Registrant had ‘brushed’ past she would not have reported it.

27. The Registrant said that before entering the laboratory, he had gone to see RW to discuss the difficult nightshift of 26 May 2015, and so had left it late to start his shift. He described that the ongoing re-fit in the laboratory meant that there was more machinery, and less space. He said he could only think that in his haste to start work, he had accidentally touched Colleague A. In cross examination he said that he hadn’t felt as though he had made contact with her, and if he had felt he had made contact, he would have apologised. He did not dispute that he must have made contact, but that it was accidental.

28. Having found that Colleague A was a credible witness, the Panel accepted her evidence on this. It was satisfied to the required standard that there had been contact by the Registrant on Colleague A’s bottom, that the contact was made by the palm of the Registrant’s hand, and that it was done intentionally.

29. The Panel went on to consider whether this constituted inappropriate behaviour and concluded it did. The contact was the intentional touching by a male of a female on an intimate part of her body in the workplace. The Panel considered that a reasonable person would consider such conduct to be inappropriate.

Particular 1(b) – Proved

1. You behaved inappropriately towards Colleague A in that:

b. On an unknown date between March 2014 and June 2015 you stated that you would “rather work on the nightshift with her as she looks better in a skirt” or words to that effect;

30. The Panel finds particular 1(b) proved.

31. Colleague A described that she had been in the Immulite room, a separate room next to the laboratory, and the Registrant had been in the same room. DR, a BMA, entered the room and mentioned to the Registrant that he was about to start his BMA night shifts and that he had one scheduled with the Registrant. She said that the Registrant then looked at her and said that he would “rather do a nightshift with me because I looked better in a skirt” or words to that effect. She said that his manner when he said this was jokey as if he found it funny. Her view was that the Registrant had been trying to pull her into the conversation, and then made a comment about skirt length, insinuating that she was wearing a short skirt.

32. The Registrant accepted that this comment was the sort of joke he would have made, but to DR, not Colleague A. He described it as a stupid joke and he would have apologised if he had known that Colleague A was upset by it. He said he considered Colleague A to be a good worker, and he had come to rely on her knowledge of chemical analysers.

33. Having found that Colleague A was a credible witness, the Panel accepted her evidence on this. It was satisfied to the required standard that the Registrant knew that Colleague A was in the room, that he made the comments and that they were directed at her.

34. The Panel went on to consider whether this constituted inappropriate behaviour and concluded it did. It was an intimate comment directed towards a female colleague. The Panel was of the view that a reasonable person would consider that such a comment, made in a work environment, whether a joke or not, would cause embarrassment and make the individual feel uncomfortable, and therefore was inappropriate.

Particular 2(a) – Proved

2. You behaved inappropriately towards Colleague B in that:

a. On or around 26 May 2015 you stated “it’s tight around here” or words to that effect, whilst you brushed past Colleague B with your hands place around her hips;

35. The Panel finds particular 2(a) proved.

36. Colleague B described that on 26 May 2015, she had been on a night shift alone with the Registrant. She was capping samples ready to file them. She said she was in an area which was quite tight, but that it was not the only way to walk past her. She said the Registrant came up behind her and squeezed past her, placing his hands on her hips as he did so. She said:

“As [the Registrant] squeezed past me he made a comment that “oh it’s a bit tight round here” or words to that effect.”
She said that although the shift had become extremely stressful at around midnight when the computers went down, this had occurred before that busy period at around 8:30pm to 9pm.

37. The Registrant described the shift as extremely busy, and that although Colleague B may not have been busy in the earlier part of the shift, he was extremely busy throughout. He said that at no point did he recall placing his hands on her hips and saying anything about the space being tight. He said that he had great admiration for Colleague B and would not want to upset her. He said that he had praised her ability on the difficult nightshift to RW on 28 May 2015.

38. Having found that Colleague B was a credible witness, the Panel accepted her evidence on this. It noted that the Registrant did not positively assert that the incident had not happened, rather that he had no recollection of such an incident, and that if he had touched Colleague B it would have been accidental. The Panel was satisfied to the required standard that the Registrant had touched Colleague B on the hips as described by her. It was also satisfied that he had said words to the effect of it being tight around there whilst doing so. The Panel was satisfied that the accompanying words were inconsistent with accidental touching and indicated that it was intentional and not accidental.

39. The Panel went on to consider whether this constituted inappropriate behaviour and concluded it did. The contact was the intentional touching by a male of a female on an intimate part of her body in the workplace. The Panel considered that a reasonable person would consider such conduct to be inappropriate.

Particular 2(b) – Proved 

2. You behaved inappropriately towards Colleague B in that:
b. On or around 28 May 2015 you told Colleague B to “wear something sexy” or words to that effect;

40. The Panel finds particular 2(b) proved.

41. Colleague B said that she had been working on a late shift in the laboratory with the Registrant and JC was in the laboratory. She had approached the Registrant to give him a sample. She had not heard all of the conversation, and all she had heard was “wear something sexy” and the Registrant was looking at her when he said it.

42. Colleague B’s evidence was, in the Panel’s view, supported by the evidence of JC. He described that he had not been listening to all the conversation, but had ‘zoned’ in on the words “it should be sexy” as they were not appropriate words to hear in a laboratory environment. He had made a reasonably contemporaneous note on 2 June 2015 of what he had heard.

43. Having found that Colleague B and JC were credible witnesses, the Panel accepted their evidence on this. It noted that the Registrant did not positively assert that the comments had not been made, rather that he had no recollection of them. The Panel was therefore satisfied that the Registrant had said words to the effect of ‘wear something sexy’.

44. The Panel went on to consider whether this constituted inappropriate behaviour and concluded it did. It was a sexual comment directed towards a female colleague. The Panel was of the view that a reasonable person would consider that such a comment, made in a work environment, was inappropriate.

Particular 2(c) – Proved

2. You behaved inappropriately towards Colleague B in that:
c. On or around 28 May 2015 you made reference to “having a threesome” or words to that effect

45. The Panel finds particular 2(c) proved.

46. Colleague B described that the reference of a threesome was made in the same conversation with the Registrant as the “wear something sexy” comment. The Panel noted that JC had no independent recollection now, in his oral evidence, of reference being made to a threesome, and there was no mention of it in his witness statement. However, the Panel was satisfied that he had recorded hearing reference to a threesome in his reasonably contemporaneous note of 2 June 2015, and that his recollection would have been better then than now.

47. Having found that Colleague B and JC were credible witnesses, the Panel accepted their evidence on this. It noted that the Registrant did not positively assert that the reference had not been made, rather that he had no recollection of it. The Panel was therefore satisfied that the Registrant had made reference to having a threesome.

48. The Panel went on to consider whether this constituted inappropriate behaviour and concluded it did. It was of the view that the phrase “having a threesome” had come into modern parlance to mean sexual activity between three people, and this had been Colleague B’s interpretation of the reference, which had left her embarrassed and she had walked away. The Panel was of the view that a reasonable person would consider that such a comment, with its sexual connotations, made in a work environment, was inappropriate.

Particular 3(a) – Proved

3. You behaved inappropriately towards Colleague C in that:

a. In or around October 2014 you stated “are you getting on your knees for me” or words to that effect;

49. The Panel finds particular 3(a) proved.

50. Colleague C, in her written complaint dated 8 June 2015, said that she was kneeling by a computer to write some notes when the Registrant approached her and encouraged her to get on her knees for him. Although her HCPC statement said that she was crouched, in her oral evidence she clarified that she had been crouching, with one knee down. She said that whilst in that position, the Registrant had approached her and stopped with his groin near her face, about one to two feet away from her, and said “are you getting on your knees for me?”. She said she felt he was “implying in a sexual way, in an oral sex act kind of way”.

51. The Registrant’s evidence was to the effect that if he had said anything about kneeling, it would have been in relation to the health and safety implications of kneeling on the laboratory floor. He also denied knowledge of any sexual implication for the phrase, saying that he had understood the allegation to be a reference to a proposal and had only come to be aware of the sexual implication later, through a third party.

52. Having found Colleague C to be a credible witness, the Panel accepted her evidence on this. It did not accept the Registrant’s account. It was therefore satisfied that the Registrant had stated words to the effect of ‘are you getting on your knees for me?’

53. The Panel went on to consider whether this constituted inappropriate behaviour and concluded it did. It was of the view that the phrase “are you getting on your knees for me” had come into modern parlance to suggest oral sexual activity and this had been Colleague C’s interpretation of the phrase, which had left her embarrassed and disgusted. She had not finished what she was doing but stood up and walked away. The Panel was of the view that a reasonable person would consider that such a comment, combined with the proximity of the Registrant’s groin area to Colleague C’s face, and with its sexual connotations, was inappropriate.

Particular 3(b) – Proved

3. You behaved inappropriately towards Colleague C in that:
b. On various dates between 13 October 2014 and June 2015 you referred to Colleague C as “little knickers”or words to that effect;

54. The Panel finds particular 3(b) proved.

55. Colleague C described that when she had been at the Hospital a few months, the Registrant started to refer to her as ‘Little Knickers’. She said that after the first time, she ignored him when he used the name. She said that he had told her it was in reference to the Jungle Book and a character referred to as ‘Little Britches’, and that he told her that ‘Little Knickers’ was his own version of this for her.

56. Colleague C’s evidence was, in the view of the Panel, supported by the evidence of Colleague B, who said that she had heard the Registrant refer to Colleague C as ‘Little Knickers’.

57. Having found Colleague C to be a credible witness, and that Colleague B’s evidence had not been influenced by discussions with Colleague C, the Panel accepted their evidence on this. It did not accept the Registrant’s account, and was satisfied that neither Colleague C nor B was mistaken that ‘Little Britches’ was the only reference to Colleague C. It was therefore satisfied that the Registrant had referred to Colleague C as ‘Little Knickers’ on more than one occasion.

58. The Panel went on to consider whether this constituted inappropriate behaviour and concluded it did. It was of the view that a reasonable person would consider it inappropriate to refer to a female colleague, in a working environment, by referencing underwear.


Particular 3(c) – Proved

3. You behaved inappropriately towards Colleague C in that:
c. On various dates between 13 October 2014 and June 2015 you held her hand;
59. The Panel finds particular 3(c) proved.

60. The Panel noted that the Registrant accepted one occasion of hand holding in respect to Colleague A, when he offered his hand, which she took, to guide her to an item of equipment. In evidence, he accepted that this was wrong. In cross examination, he said he could not recall if this was more than once, but that it might have happened more than once.

61. Colleague C said that the Registrant would take her hand and lead her to things in the laboratory. She said that it happened less than half a dozen times, but she found it patronising. She gave an example where he had taken her hand and led her to the clock when the Registrant thought she had not completed a task.

62. Having found Colleague C to be a credible witness, and noting that the Registrant did not positively challenge that he had held Colleague C’s hand more than once, the Panel was satisfied that the Registrant had held her hand on more than one occasion.

63. The Panel went on to consider whether this constituted inappropriate behaviour and concluded it did. It was of the view that a reasonable person would consider that, in the circumstances described, holding a work colleague’s hand to guide them to where equipment was located was demeaning and disrespectful, and therefore, inappropriate.

Particular 3(d) – Proved

3. You behaved inappropriately towards Colleague C in that:
d. On an unknown date between 13 October 2014 and June 2015 you nudged Colleague C and stated “the things we could do in two minutes” or words to that effect;

64. The Panel finds particular 3(d) proved.

65. The Panel noted that the Registrant did not challenge that he had made an observation about things that could be done in two minutes, but said that the context would have been in relation to other tasks which could be done in the laboratory whilst the countdown process of a bleach cycle was happening.

66. Colleague C described the comments as occurring in the context of an analyser count down. However, she said:
“[The Registrant] looked at me, smirked and then nudged me with his shoulder. He leaned in so that his head was closer to mine and lowered his voice. He then said “The things we could do in 2 minutes” or words to that effect. He did not say anything after this but I felt that his implication was extremely clear. I believe that this was intended to be a sexual innuendo. It was clear from his actions and tone of voice that he did not mean what other work-related things could we, or should we, try and do in this time.”
67. Having found Colleague C to be a credible witness, the Panel was satisfied that the Registrant nudged Colleague C and said words to the effect of ‘the things we could do in two minutes’.

68. The Panel went on to consider whether this constituted inappropriate behaviour and concluded it did. It was of the view that a reasonable person would consider that the words spoken taken together with the nudge, demonstrated a sexual innuendo in the work place, which was inappropriate.

Particular 4 – Proved (in relation to 1(a), 2(a), 2(b), 2(c), 3(a), 3(c) and 3(d))
Your actions described in particulars 1, 2 and 3 were sexually motivated;

69. The Panel finds particular 4 proved in relation to: 1(a), 2(a), 2(b), 2(c), 3(a), 3(c) and 3(d).

70. In relation to whether any of the Registrant’s actions in particulars 1, 2 and 3 were sexually motivated, the Panel considered what was meant by the term ‘sexually motivated’. It noted that it had found that many of the actions and comments by the Registrant to Colleagues A, B and C to be inappropriate because they encompassed a sexual innuendo or connotation. The Panel was of the view that for the inappropriate behaviour to be properly described as being ‘sexually motivated’, the driving force for the Registrant acting in such a way would be that he would derive some sort of sexual gratification in acting in that way.

71. The Panel was acutely aware that the Registrant was a man of hitherto good character, who had worked in the Hospital for over 30 years without any formal complaints or disciplinary findings against him. He had also provided references attesting to his good character. In light of this, the Panel bore in mind the Legal Assessor’s advice that a person of good character was less likely to act in the ways alleged, and, given the allegation of sexual motivation, the greater the need for cogency of evidence before concluding that such an allegation is established on the balance of probabilities.

72. In relation to 1(a), the Panel considered that the inappropriate touching of a female colleague’s bottom was sexually motivated. It was an intimate part of her body, and by its nature, it was sexual. There was no good reason for the touching, and the Panel had previously found that it was not accidental. The Panel was satisfied, therefore, that this act, by its nature, was both sexual and carried out for the sexual gratification of the Registrant.

73. In relation to 1(b), the Panel had regard to its earlier finding that the comment about rather working a nightshift with Colleague A, as she looks better in a skirt, was an intimate comment, which had caused her embarrassment and made her feel uncomfortable. Such a comment was clearly inappropriate, but the Panel was not satisfied to the required standard that such a comment crossed from being inappropriate and disrespectful into being motivated by sexual gratification.

74. In relation to 2(a), the Panel considered that the touching of a female’s hips with both hands, accompanied by the words “it’s tight around here”, was sexually motivated. There was no good reason for the touching: the Panel was satisfied that the Registrant had not needed to pass that way at all and the Panel had found that the touching was not accidental, given that it had been accompanied by specific words suggesting a tight space. The Panel was, therefore, satisfied that that these actions, by their nature, were sexual and carried out for the sexual gratification of the Registrant, and therefore sexually motivated.

75. In relation to 2(b) and 2(c), the Panel considered these together as they were comments made in the same conversation with Colleague B. The Panel considered that these comments were suggestive of wearing sexy clothing, and participating in sexual activity between three people. The Panel was satisfied that the nature of such a conversation had crossed from inappropriate sexual ‘banter’ into being motivated by sexual gratification, and, therefore, were sexually motivated.

76. In relation to 3(a), the Panel had regard to its findings that the use of the phrase ‘are you getting on your knees for me’ had come into modern parlance to suggest oral sexual activity. In addition, the circumstances were such that she was down on her knee and his groin area was proximate to her head. The Panel was satisfied that this phrase, together with the surrounding circumstances, was sexual and carried out for the sexual gratification of the Registrant, and therefore, sexually motivated.

77. In relation to 3(b), the Panel considered that this was demeaning and embarrassing to Colleague C to refer to her as ‘Little Knickers’. Such a comment was clearly inappropriate, but the Panel was not satisfied to the required standard that referring to Colleague C in that way had crossed from being an inappropriate and disrespectful comment into being motivated by sexual gratification.

78. In relation to 3(c), the Panel considered that the holding of Colleague C’s hand on more than one occasion, in the circumstances described, was sexually motivated. It was, in the Panel’s view, unnecessary for the Registrant to take her hand in order to show her the location of equipment, or to lead her to see the clock face. The Panel considered that the holding of hands is an intimate action, and often a way of demonstrating affection. The Panel was satisfied, therefore, that the holding of Colleague C’s hand was carried out for the sexual gratification of the Registrant, and therefore, sexually motivated.

79. In relation to 3(d), the Panel acknowledged that the comment ‘the things we could do in two minutes’ was not inherently sexual. However, the Panel had regard to its earlier finding that the comment was accompanied by a nudge and other surrounding circumstances, which were suggestive of the comment being made in relation to sexual activity taking place in two minutes. The Panel was satisfied that this comment, together with the surrounding circumstances, was sexual and carried out for the sexual gratification of the Registrant, and therefore, sexually motivated.

Interim Order

1. As the Substantive Hearing has not been able to be completed in the time allotted to it, the Panel adjourned the hearing until the next available slot. It therefore considered whether, in light of its findings on the facts, an Interim Order was required to cover the period until the hearing could be resumed.

2. The Panel heard and accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note on Interim Orders, in that the Panel must undertake a comprehensive review of the available information in order to conduct a risk assessment.

3. The Panel considered whether an Interim Order was necessary to protect the public and concluded one was necessary. The Panel has made findings on the facts in relation to three females with whom the Registrant worked. It has found proved a number of instances of inappropriate behaviour towards colleagues, much of which was sexually motivated. The behaviour related to a series of incidents over a period of time. The Registrant in his evidence to the Panel had not recognised his behaviour in this light, and in the Panel’s view, he lacked insight. As a result, the Panel could not be confident that there was no risk of repetition. The Panel, therefore, concluded that an Interim Order was necessary to protect the public, in particular colleagues at work.

4. The Panel considered the wider public interest. In considering this, it took account of the serious nature of the inappropriate behaviour, and in particular that that it included the sexually motivated touching of female colleagues in the work place. The Panel concluded that the public would expect the Regulator to take action at this stage of the proceedings, where factual findings in respect of serious matters against the Registrant. It concluded that an Interim Order was required to maintain public confidence in the profession and to uphold proper standards of conduct and behaviour.

5. Accordingly, the Panel concluded that an Interim Order is necessary to protect the public and is otherwise in the public interest.

6. The Panel considered an Interim Conditions of Practice Order. The Panel was of the view that the facts found proved were too serious to be dealt with by conditions. There were no practicable or workable conditions which could be formulated to safeguard the public. It was also of the view that it would be difficult to construct conditions relevant to the sexually motivated behaviour, given the attitudinal element to them.

7. The Registrant told the Panel that he was not working as a BMS, and did not intend to work as a BMS in future, and so an Interim Order would not cause him financial hardship.

8. In all the circumstances the Panel determined to make an Interim Suspension Order for a period of 6 months. In deciding to impose this length, it took account of the fact that a provisional date had been identified for the resumption of the Hearing on 2 and 3 November 2017. Although the Registrant was not able to confirm at this stage whether he was available to attend on those dates, he said he would be available to attend a hearing in January 2018. Even if the hearing was not resumed until January 2018, this was within the 6 months of the Interim Order.

Order

The Registrar is directed to suspend the Registrant from the Register on an interim basis for a period of 6 months.

Preliminaries at resumed hearing

Application to proceed in Absence

80. Although the Registrant had attended the fact finding stage, he did not attend this resumed hearing today (3 November 2017), listed to deal with statutory grounds and impairment. Following announcement of the findings on the facts, on 29 September 2017, the case had been adjourned due to lack of time to complete the hearing in the allotted time. The Registrant notified the HCPC by email, dated 2 October 2017, that he would not be attending on the resumed date. 

The Service of Notice

81. On 5 October 2017, the HCPC sent the notice for this resumed hearing by first class post to the Registrant’s registered address. A copy of the notice was also sent to the Registrant by email. The notice contained the required particulars.

82. Having heard and accepted the advice of the Legal Assessor, the Panel was satisfied on the documentary evidence provided, that the Registrant had been served notice of this hearing in accordance with the Rules.

Proceeding in the absence of the Registrant

83. Ms Sheridan, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in a Registrant's absence must only be exercised with the utmost care and caution.

84. The Panel had regard to the chronology of events as follows:

• Between 26 and 29 September 2017, the Registrant attended the fact finding stage of the substantive hearing;

• On 2 October 2017, the Registrant sent an email to the HCPC informing it that he would not be attending the resumed hearing;

• On 5 October 2017, notice of the resumed hearing was sent to the Registrant.

• No response to the notice nor any further communication has been received from the Registrant.

85. In light of the above, the Panel was of the view that the Registrant disengaged from the process shortly after the announcement of findings of the facts. It follows that he has not applied for an adjournment, nor has he submitted any representations. Given his email of 2 October 2017, the Panel was of the view that an adjournment would be unlikely to secure his attendance in any event.

86. The Panel was satisfied that the HCPC had fulfilled its obligations and taken all reasonable steps to serve the notice on the Registrant in accordance with the Rules.

87. The Panel therefore concluded that the Registrant had voluntarily waived his right to attend and there was no indication that he would attend any adjourned hearing. The Panel also considered that it was in the public interest for the hearing to take place. It was part way through the substantive hearing, having made findings of fact in relation to serious matters. It was, therefore in the public interest for the matter to reach a conclusion. The Panel acceded to the HCPC application to proceed in absence.

Misconduct and Impairment

88. The Panel considered whether the facts previously found proved amounted to misconduct, and if so, whether by reason thereof, the Registrant's fitness to practise is currently impaired.

89. The Panel considered the submissions made by Ms Sheridan on behalf of the HCPC. She identified a number of standards which she submitted the Registrant had breached. She also submitted that the facts which had been found proved, including sexually motivated behaviour, amounted to misconduct and that the Registrant's fitness to practise is currently impaired by reason of that misconduct.

90. The Panel heard and accepted the advice of the Legal Assessor. The Panel was aware that findings of misconduct and impairment were matters for the independent judgement of the Panel, and that consideration of impairment only arises in the event that the Panel judges that the facts found proved do amount to misconduct and that what has to be determined is current impairment, that is looking forward from today.

Decision on Grounds

91. The Panel considered whether the facts found proved amounted to misconduct and concluded that they did. This was not an isolated incident. The Panel considered that the facts found proved demonstrate a pattern of behaviour on the part of the Registrant towards three young women at work, all of whom were inexperienced and reliant upon him for his clinical expertise. The Panel was of the view that the Registrant had abused his position as a senior member of staff, and engaged in sexually motivated behaviour towards members of staff who were unlikely to make a complaint against him. 

92. The Panel was of the view that the Registrant’s conduct had breached the following HCPC Standards of Conduct, Performance and Ethics (2012 version):

• 3 – You must keep high standards of personal conduct

• 7 – You must communicate properly and effectively with…other practitioners;

• 13 – You must behave with (….) integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

93. In the Panel’s judgement the Registrant’s conduct was serious and sexually motivated. It therefore, amounted to misconduct.

Decision on Impairment

94. The Panel had regard to the HCPTS Practice Note on Impairment and in particular the two elements of impairment, namely the ‘personal component’ and the ‘public component’.

95. The Panel first considered the ‘personal component’.

96. Although the Registrant had attended the fact finding stage, he has not attended this next stage of statutory grounds and impairment, and in the Panel’s view has disengaged from the process. At the fact finding stage, the Registrant had not simply denied the allegations, but had sought to portray much of the behaviour simply as banter or accidental touching and had apportioned blame to others.

97. In the adjourned period, the Registrant had the opportunity to reflect on the findings and his behaviour, but instead he has disengaged. There is, therefore, no evidence before the Panel that the Registrant has reflected on his actions or acknowledged his wrongdoing. There is no evidence of any remorse or steps towards remediation demonstrated by the Registrant. In all the circumstances, the Panel concluded that the Registrant lacked insight into the seriousness of his behaviour, and in particular the impact it had on Colleagues A, B and C. It was clear to the Panel that each of Colleagues A, B and C had been made to feel embarrassed and demeaned by the Registrant’s behaviour, but none had felt able to complain about it, and had tried to ignore it.

98. In all the circumstances, the Panel was of the view that, in the absence of insight there remained a high risk of repetition that the Registrant would behave in this way again. It therefore concluded that in respect of the personal component, the Registrant’s fitness to practise is currently impaired.

99. The Panel went on to consider the ‘public component’.

100. The Panel was mindful of the heightened public awareness of inappropriate sexual behaviour to women by persons in authority. In the Panel’s judgement, the Registrant, by his sexually motivated behaviour towards work colleagues, had brought the profession into disrepute. Colleagues A, B and C were inexperienced members of staff, and the Registrant was an experienced and well respected member of staff who had caused Colleagues A, B and C a great deal of embarrassment and discomfort with his behaviour.

101. In the Panel’s view, the public would expect the regulator to take action in order to mark that the Registrant’s conduct was unacceptable for a professional to behave in such a way towards other members of staff. The Panel therefore concluded that public confidence in the reputation of the profession would be undermined if a finding of impairment were not made in this case. Similarly, the Panel concluded that professional standards would be undermined if it did not make a finding of Impairment. Accordingly, in respect of the ‘public component’ the Panel concluded that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

102. Having concluded that the Registrant’s current fitness to practise is impaired, the Panel went on to consider what would be the appropriate, proportionate and sufficient sanction or other outcome in this case.

103. The Panel accepted the advice of the Legal Assessor. It had regard to the HCPC Indicative Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive, but to protect members of the public and to safeguard the public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

104. The Panel considered that the following were mitigating factors in this case:
• The Registrant was of previous good character, with 35 years of experience as a BMS with no previous regulatory findings against him.

105. The Panel considered that the following were aggravating factors:

• This was a pattern of behaviour towards three inexperienced, young female members of staff, Colleagues A, B and C which made them vulnerable to his behaviour;

• The inappropriate behaviour was in large part sexually motivated;

• The inappropriate behaviour had an impact on Colleagues A, B and C leaving them feeling embarrassed, uncomfortable and demeaned;

• This was an abuse of trust of the Registrant’s position as an experienced member of staff;

• There is lack of insight or acknowledgement of wrongdoing on the part of the Registrant;

• The Registrant has now disengaged from the HCPC proceedings.

106. The Panel does not consider the options of taking no further action or mediation to be appropriate or proportionate in the circumstances of this case. Neither would address the identified risks, including that of the high risk of repetition. The case is also too serious, and either course would not meet the wider public interest.

107. The Panel does not consider that a Caution Order would meet the criteria as set out in paragraph 28 of the Policy which reads: ‘A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the Registrant has shown insight and taken appropriate remedial action’. As previously found, this was not an isolated incident, rather a pattern of behaviour; there was no evidence of insight, remorse or remediation; and the risk of repetition is high.

108. The Panel next considered a Condition of Practice Order. The Panel had regard to paragraph 33 of the Policy which reads: ‘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.’ In light of the Registrant’s disengagement from the process and his lack of insight into his behaviour, the Panel could not be satisfied that the Registrant was either committed to resolve his attitude and behaviour, or could be trusted to make the effort to do so.

109. The Panel further considered paragraph 33 of the Policy which continues: ‘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’. In this case, the Panel has previously found that the Registrant has disengaged from the process, lacks insight into the seriousness of his behaviour, and has not acknowledged the extent of his wrongdoing, either minimising it to workplace ‘banter’, or denying that it was anything other than accidental.

110. In light of the Panel’s judgement that there was a high risk of repetition, the Panel was not satisfied that conditions would be either appropriate or proportionate. Given that the identified risk of repetition of the misconduct includes sexually motivated behaviour and abuse of position of trust, the Panel was not satisfied that it would be possible to formulate workable conditions to both address the misconduct as well as providing appropriate protection to members of the public. In any event, Conditions of Practice would not maintain public confidence in the profession or the HCPC as its Regulator, as the case is too serious.

111. The Panel next considered a Suspension Order. The Panel had regard to paragraph 39 of the Policy which states: ‘Suspension should be considered where the Panel considers that a Caution or Conditions of Practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking-off is not merited’. In this case, as stated above, the Panel has identified a high risk of repetition, which, in turn, leads it to conclude that a Suspension Order would provide insufficient public protection.

112. The Panel also had regard to paragraph 41 of the Policy, which states: ‘If the evidence suggests that the registrant will be unable to resolve or remedy his or her failing’s then striking-off may be the more appropriate option’. As the Registrant has disengaged with the process since the fact finding stage, the Panel has no information to suggest that the Registrant may have reflected on his behaviour, or be in a position to resolve or remedy his behaviour. In fact, the disengagement suggested to the Panel that he is unable or unwilling to remedy his behaviour. The Panel therefore considered that a Suspension Order is not the appropriate and proportionate response.

113. The Panel next went on to consider a Striking Off Order and concluded that this was the only appropriate and proportionate sanction in this case. The Panel had regard to paragraph 47 of the Policy and recognised that a Striking Off Order is a sanction of last resort. However, it was of the view that this was a case of serious, deliberate acts involving abuse of trust, in the form of sexual misconduct in the work place.

114. The Panel also had regard to paragraph 48 of the Policy which states: ‘Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate’. For the reasons previously given, including: a risk of repetition; no evidence of insight or remediation; denial of wrongdoing at the fact finding stage, followed by disengagement in the latter part of these proceedings, the Panel concluded that there was no other way to both protect the public and to meet the wider public interest in this case than by imposing a Striking Off Order.

115. The Panel was mindful of the principle of proportionality when considering the appropriate sanction. It acknowledged that such an Order will preclude the Registrant from working as a BMS. However, the Panel was of the view that only a Striking Off Order was appropriate in this case, and no lesser sanction would serve the purpose of both protecting the public and meeting the wider public interest.

Order

The Registrar is directed to strike the name of the Mr Julian B Roberts from the Register on the date this order comes into effect.

Notes

Interim Order following Imposition of Sanction

Proceeding with the application in the Registrant’s absence

1. Ms Sheridan made an application for the Interim Order hearing to proceed in the Registrant’s absence. She submitted that the Registrant had been given notice that the HCPC may make such an application in the notice of hearing dated 5 October 2017.

2. The Panel accepted the advice of the Legal Assessor and decided that it was appropriate to proceed in the Registrant’s absence. It was satisfied that the Registrant had been given notice in the notice of hearing, dated 5 October 2017, of the HCPC’s intention to apply for an Interim Order if conditions, suspension or strike off were imposed as a sanction.

3. The Panel considered that the same factors applied as for its decision to proceed with the resumed hearing, namely that the Registrant had voluntarily waived his right to attend and it was unlikely that an adjournment would be unlikely to secure his attendance.

Interim Order Application
4. Ms Sheridan made an application for an Interim Order of Suspension for 18 months to cover the appeal period before the Striking Off Order comes into effect on 1 December 2017.

5. The Panel heard and accepted the advice of the Legal Assessor and had regard to the Practice Note on Interim Orders, in that it must undertake a comprehensive review of the available information in order to conduct a risk assessment.

6. The Panel considered whether an Interim Order was necessary to protect the public and concluded one was necessary. The Panel has found misconduct and current impaired fitness to practise on both the personal and public components, in respect of a number of instances of inappropriate behaviour towards colleagues, much of which was sexually motivated. The Panel has found that the Registrant lacked insight and that there is a high risk of repetition. The Panel, therefore, concluded that an Interim Order was necessary to protect the public, in particular colleagues at work.

7. The Panel considered the wider public interest. The Panel concluded that, having found that the Registrant’s fitness to practise is currently impaired, and that the only appropriate sanction is one of a Striking Off Order, the public would be concerned if the Registrant were permitted to practise during the appeal period.  It, therefore, concluded that an Interim Order was required to maintain public confidence in the profession and to uphold proper standards of conduct and behaviour.

8. Accordingly, the Panel concluded that an Interim Order is necessary to protect the public and is otherwise in the public interest.

9. The Panel considered an Interim Conditions of Practice Order, but in light of the Strike Off the Panel was of the view the case was too serious to be dealt with by of conditions for the same reasons as set out in the substantive hearing.

10. In all the circumstances the Panel determined to make an Interim Suspension Order for a period of 18 months. In deciding to impose this length, it took account of the fact that if the Registrant were to appeal, that process may take a considerable period of time.

Order: The Registrar is directed to suspend the Registrant from the Register on an interim basis for 18 months.


 

Hearing history

History of Hearings for Mr Julian B Roberts

Date Panel Hearing type Outcomes / Status
03/11/2017 Conduct and Competence Committee Final Hearing Struck off
26/09/2017 Conduct and Competence Committee Final Hearing Adjourned part heard