That, whilst registered as a Residential Child Care Worker and employed by Specialist Intervention Care Services:
1. On an unknown date or dates in or about June 2018 you:
(a) made a video recording of Colleague A's bottom when she was bending over;
(b) added an audio comment to the video recording which said, 'cracking view', or words to that effect;
(c) shared the video recording through a WhatsApp group comprised of other staff members;
2. On or about 13 September 2018 you:
(a) stood in front of Colleague A who was seated on a chair;
(b) grabbed Colleague A's legs with your hands under her knees;
(c) pulled Colleague A towards you so that her legs were around your waist;
(d) thrust your body towards Colleague A;
(e) said to Colleague A, 'I would love to do this to you' and/or 'I'll do it like this' or words to that effect.
3. Your conduct in 1(a), 2(a), 2(b), 2(c), 2(d) and/or 2(e) above was sexually motivated
And your fitness to practise is impaired by reason of your serious misconduct.
Decision on facts
We find the facts of all Charges proved.
Our reasons are as follows.
The Registered Person was registered with Social Care Wales as a Residential Child Care Worker on 6 May 2016. At the relevant time, he was employed in that capacity by Specialist Intervention Care Services, based at Griffin House in Ebbw Vale. Griffin House is a facility providing residential accommodation for vulnerable young people with behavioural issues.
On 12 October 2018, Social Care Wales received a referral from the Registered Person’s then employer, advising that, on 28 September 2018, he had been suspended from his post. An investigation was carried out by the employer, and on 22 and 30 October 2018, a disciplinary hearing was convened to consider, amongst other matters, allegations that the Registered Person acted in a sexually inappropriate manner towards a work colleague, and took (and then posted to work colleagues via the WhatsApp messaging service) an inappropriate video of a work colleague. The Registered Person was subsequently summarily dismissed from his employment on 31 October 2018.
Charge 1 alleges that, on an unknown date or dates in or about June 2018, the Registered Person:
(a) made a video recording of Colleague A’s bottom when she was bending over;
(b) added an audio comment to the video recording which said “cracking view” or words to that effect; and
(c) shared the video recording through a WhatsApp group comprised of other staff members.
We find this Charge proved in its entirety. The background to this charge is that on a day in or around June 2018, the Registered Person and Colleague A took some young residents of Griffin House to a beach. Colleague A was with the young people on the beach, building sandcastles and digging holes in the sand. Colleague A was, at the time, wearing tight leggings. The Registered Person began videoing on his personal mobile telephone. We were told by Colleague A that the footage (which we have not seen) showed her with her back to the Registered Person. Colleague A bent down towards the sand, at which point the camera zooms closely in on her bottom. Colleague A told us that an audio had been added to the footage, and she recognised the voice as the Registered Person who, she said, then said aloud “cracking view”. Colleague A said that the footage had then been posted into a WhatsApp staff group, of which she was a member.
Whilst the Registered Person has not taken part in this hearing, he has submitted a handwritten account (which appears at page 142 onwards in the bundle). In that account, the Registered Person says as follows: “I took the video with the best of intention (sic) and at the time did not think that anyone could be offended by it. However, when it was pointed out to me that my colleague may be offended it was removed immediately”.
This account is, in our view, fundamentally different to the account advanced by the Registered Person in the disciplinary investigation conducted by his former employer, and which was the account advanced by him in his disciplinary interview. His earlier account was that he had been taking a video of the young people playing on the beach, during which Colleague A came into the camera shot. The Registered Person maintained that he then stopped filming at this point.
In determining this charge on the balance of probabilities, we have had to assess the credibility of Colleague A, and that of the Registered Person. In her oral evidence to us, Colleague A gave clear and straightforward evidence about the video clip that she herself had seen in the WhatsApp group. She was able to clearly describe to us what she had seen on the video clip, and was able to identify the voice on the clip as belonging to the Registered Person. We are satisfied that Colleague A was telling us the truth about what she had seen and heard. We also bear in mind that this evidence is broadly supported by the statements of Witness 2, Witness 3, and Witness 4. None of those witnesses gave oral evidence before us, and so their evidence is hearsay. That said, we consider that these statements broadly support the evidence given by Colleague A in relation to the content of the video clip.
The Registered Person, on the other hand, has advanced different accounts at different times. That causes us to have reservations about accepting any account put forward by the Registered Person about this issue. We find the account given by the Registered Person during the employer’s disciplinary investigation to be wholly improbable, not least because we heard evidence from Witness 1 that the taking of videos of young people receiving services was prohibited, and there would be no justifiable reason for the Registered Person to do so. Additionally, Witnesses 2, 3 and 4 each provide a hearsay account that does not support the Registered Person’s account of the content of the video clip.
We find that the Registered Person did make a video recording of Colleague A’s bottom when she was bending over, added an audio comment to the video recording which said “cracking view”, and shared the video recording through a WhatsApp group comprised of other staff members. In reaching this conclusion, we also considered that, in his written representations on page 142 of the bundle (and which we have set out above) the Registered Person uses the term “offended”. This would not, in our view, be an accurate word to use if the Registered Person had, as he was suggesting, been taking a video of the young people playing on the beach. We take the Registered Person to be referring to (and thereby accepting) the matter set out in Charges 1(a)-(c). That, in our view, explains why the specific term “offended” was used by him in that context. Our conclusion is further supported by the hearsay account of Witness 3, who says that she immediately instructed the deletion of the clip, and subsequently challenged the Registered Person about his conduct on his return to Griffin House. Witness 3 records the Registered Person’s response as being that the video was “only a bit of fun” and apologised to Witness 3. This sits in direct contradiction to the Registered Person’s account of the content of the video clip.
Charge 2 alleges that, on or about 13 September 2018, the Registered Person:
(a) stood in front of Colleague A who was seated on a chair;
(b) grabbed Colleague A’s legs with his hands under her knees;
(c) pulled Colleague A towards her so that her legs were around his waist;
(d) thrust his body towards Colleague A; and
(e) said to Colleague A “I would love to do this to you” and/or “I’ll do it like this” or words to that effect.
We find this charge proved in its entirety. Our approach to considering this Charge has been to consider the matters at Charges 2(a)-(e) inclusive as a single continuing event, since they occurred sequentially to each other within a very short space of time.
There is a direct conflict of evidence in relation to this Charge. Colleague A maintains that the events of the evening in question occurred as set out in the Charge, whereas the Registered Person maintains that the conduct alleged simply did not happen. This is, in effect, Colleague A’s word against that of the Registered Person. We were therefore very careful in assessing Colleague A’s evidence and comparing it to what the Registered Person had to say about the events in question.
In our view, Colleague A gave honest, truthful, and straightforward evidence about the events of the night in question. In her evidence, she says that on 13 September 2018, she was on shift at Griffin House along with the Registered Person, Witness 2, and Witness 3. At approximately 9:00-9:30pm, she was sitting on a chair on the upstairs landing, as the young people at the Home had just gone to their bedrooms. The Registered Person then came upstairs and struck up a conversation with Colleague A about what she describes as “everyday things”. Colleague A said that the Registered Person then very suddenly stood in front of her and grabbed her legs with his hands under her knees. The Registered Person then pulled Colleague A’s legs towards him, with the result that he was standing between Colleague A’s legs. Colleague A then described the Registered Person thrusting himself towards and against her, saying “I would love to do this to you” and “I’ll do it like this”.
Colleague A’s evidence is that she quickly jumped up and pushed the Registered Person away, saying “if you do that again I’ll punch you in the face”. She described the Registered Person then walking away, laughing.
The Registered Person has not put forward any explanation for why Colleague A has alleged that he has behaved in the manner alleged. The Registered Person’s position has been one of outright denial. In his written representations that begin at p.142 of the bundle, the Registered Person says “I utterly refute what [Colleague A] is alleging. I can offer no explanation as to why she should do so.” The Registered Person repeated his denial in a further written account submitted in the days leading up to this hearing.
Having weighed the evidence carefully, we prefer the evidence of Colleague A. As we have already noted, Colleague A provided what we consider to be honest, accurate and truthful evidence. She was clear on the precise detail and mechanism of the events on the 13 September 2018. She also gave what we consider to be measured and balanced evidence, because she also, at appropriate times, spoke positively of other aspects of her working relationship with the Registered Person. There would have been opportunity for Colleague A, had she wished to do so, to embellish or exaggerate her evidence, but she did not do so, even when asked whether the reason why she was not currently working in social care was due to her experience with the Registered Person. Instead, she confined herself to answering that her current employment situation was as a consequence of caring for an unwell relative.
Insofar as the Registered Person is concerned, we already had cause, as part of our consideration of Charge 1, to question his credibility, having advanced different accounts at different times. His position contrasts strongly with that of Colleague A, who (unlike the Registered Person) had the courage to attend this hearing and give evidence. The Registered Person has absented himself from this hearing and has not therefore put forward any account that he was prepared to subject to scrutiny. His position of bare denial without any other detail stands in sharp contrast with the evidence of Colleague A, who gave clear, detailed, and precise evidence about the events of that evening. We find that Colleague A had no motive to invent her account and cannot think of any circumstances in which it would be to her advantage to do so.
We therefore find the facts of Charges 2(a)-(e) inclusive proved.
Charge 3 alleges that the Registered Person’s conduct in Charges 1(a) and Charges 2(a)-(e) inclusive were sexually motivated. In determining this issue, we have accepted the legal advice that, in order to find that conduct was sexually motivated, we have to be satisfied on the balance of probabilities that the conduct was done either for sexual gratification, or in the pursuit of some future sexual relationship.
In our view, the conduct in Charge 1(a) was sexually motivated, having been done for the Registered Person’s sexual gratification. On the day in question, the Registered Person made a video of Colleague A bending over in front of him, at a distance of some 2 metres. The zooming in to focus exclusively on Colleague A’s bottom, and the addition of the words “cracking view”, spoken by the Registered Person, support our view. We reject the Registered Person’s account given to Witness 3 that the video was “only a bit of fun”.
We are also satisfied that the conduct in Charges 2(a)-(e) inclusive were sexually motivated. In our view, this was done by the Registered Person both for his own sexual gratification and in pursuit of some future sexual relationship. The conduct in Charges 2(a)-(e) are a notable escalation of the conduct in Charge 1, moving from (In June 2018) the videoing of a part of the human body which is frequently sexualised to (in September 2018) unwanted physical contact which had obvious sexual elements. Those actions were accompanied by words which can only have one meaning, which is that the Registered Person wished to have sexual contact or intercourse with Colleague A. There is, in our view, no other plausible explanation for the Registered Person’s conduct.
Decision on impairment
We have again considered the information before us and heard submissions from the Presenting Officer. We have accepted the legal advice provided. We have had regard to the relevant edition of the Code of Professional Practice for Social Care, and Social Care Wales’ Practice Guidance document entitled “The Residential Child Care Worker”
We have concluded that the Registered Person’s fitness to practise is impaired by reason of serious misconduct.
Our reasons are as follows.
We have considered the issue of fitness to practise in two stages. First, we considered the question of whether one (or more) of the six grounds of impairment was present. This is a case where it is alleged that the Registered Person’s fitness to practise is impaired by reason of serious misconduct.
The term “misconduct” is not defined, but we have accepted the legal advice that this term is generally regarded as some act or omission which falls short of what would be proper in the circumstances, and that serious misconduct arises where a falling short is “serious”. We were also told that this can be conduct which may be viewed as “deplorable” (but need not be).
We are satisfied that the conduct that we have found proved in Charges 1 and 2 falls seriously short of what would be proper in the field of professional social care practice. Charges 1(a) and 2(a)-(e) are aggravated by our findings that they were sexually motivated.
Dealing firstly with Charge 1, we bear in mind that Colleague A had not been working at Griffin House for long. This incident occurred within three weeks of her starting there. The Registered Person’s conduct towards her was abusive, derogatory, and demeaning. We also bear in mind the view expressed by Witness 3 that she was “furious” when she saw the video and immediately instructed its removal from the WhatsApp group. She was sufficiently troubled by it to confront the Registered Person upon his return to Griffin House. This, in our judgment, is clear evidence of the deplorability of the Registered Person’s conduct in Charge 1 which, as we say, is aggravated by the sexual motivation we found to exist in relation to Charge 1(a). We therefore find that the Registered Person’s conduct in Charge 1 amounts to serious misconduct.
Insofar as Charge 2 is concerned, we have no hesitation in finding that the Registered Person’s conduct was deplorable. His behaviour towards Colleague A was demeaning, abusive and intimidating. It is significantly aggravated by the sexual motivation that we have found proved. His conduct shocked Colleague A, who was clear in her evidence that she did not give the Registered Person any permission to behave as he did. Additionally, the conduct was, in our judgment, an escalation of the conduct in Charge 1, and for which the Registered Person has shown no regret or remorse. For these reasons, the conduct in Charge 2 clearly crosses the threshold of serious misconduct.
In his submissions to us on the issue of impairment, Mr Miles, on behalf of Social Care Wales, referred to many parts of the Code which had been breached. We agree with Mr. Miles that the factual findings we have made are such that there has been, in our view, a very significant departure from the provisions of the Code, with breaches of Parts 2, 3, 5 and 6. We find that the conduct breaches Parts 2.1, 3.2, 5.1, 6.1 and 6.6 of the Code. We are further satisfied that, because of these breaches, which include fundamental tenets of the profession, the Registered Person’s conduct calls into question his suitability to work in the social care profession (Code 5.8). We are clear that this serious misconduct undermines public confidence in the profession.
Next, we considered whether the Registered Person’s fitness to practise is currently impaired. In this respect, we reminded ourselves that our finding of serious misconduct does not automatically mean that the Registered Person’s fitness to practise is currently impaired. We considered whether the serious misconduct we found proved was an isolated event. We cannot conclude that the matters we have found proved can fairly be described as isolated. Rather, in our judgement, they represent a pattern of improper practice since they relate to conduct towards Colleague A on two separate occasions. On the second occasion, the Registered Person’s conduct was markedly more aggressive, and characterised by unequivocal sexual words and actions.
We then considered whether the conduct that we have found proved was capable of being remediated. Insofar as the conduct in Charges 1 and 2 are concerned, we have some reservations about whether conduct such as that shown towards Colleague A is capable of remediation. The Registered Person sought out Colleague A on two separate occasions and then subjected her to sexually motivated, deplorable misconduct. As we have noted already, the second incident was physically abusive, and when Colleague A made her views plain to the Registered Person, his response was to walk away laughing. Coupled with the Registered Person’s minimisation of his conduct in Charge 1 (describing the video to Witness 3 as “only a bit of fun”), that is evidence of an attitudinal issue, and because the Registered Person has not attended this hearing, we cannot have any confidence that his serious misconduct is capable of remediation. Even if it were, we do not consider that, in the Registered Person’s case, this could be easily achieved.
There is limited evidence of any actual insight before us. Aside from a brief reference to the Registered Person having been “taught…just how careful you have to be when using social media”, the written representations submitted by the Registered Person focus heavily on the consequences that the employer investigation and subsequent fitness to practise proceedings have had on him personally. Those representations offer no apology to Colleague A; rather than recognise the effect that his conduct had on her.
There is no evidence of the Registered Person taking any steps to remedy the actions which led to the breaches of the Code that we have identified. Consequently, we have no evidence before us as to whether he has taken any steps to ensure that this conduct would not be repeated in future. The Registered Person has not attended this hearing, and so we have not heard any direct evidence from this in this respect. Consequently, we are unable to say that circumstances such as these would not arise again in the future.
In our view, the Registered Person’s lack of insight creates a current risk to individuals using services. This, in our judgement, aggravates matters as it demonstrates a lack of insight into the potential effect of his conduct not just on Colleague A, but also on any young people using services who may have witnessed the conduct we have found proved in Charges 1, 2 and 3. Looking forwards, that is a matter of significant concern because the Registered Person does, in our judgement, pose a similar risk to colleagues and vulnerable individuals with whom he might work in the future (and to whom he would have a duty of care).
We consider that in the absence of any real insight or remorse, we cannot conclude that the Registered Person would make different decisions or behave differently in the future. We also consider that public confidence in social care would be undermined if a finding of impairment was not made in this case.
Taking all these matters into account, we have concluded the Registered Person’s fitness to practise is currently impaired by reason of his serious misconduct.
Decision on disposal
We have carefully considered the submissions made on behalf of Social Care Wales and have accepted the legal advice provided. In reaching our decision, we have had regard to the Indicative Disposals Guidance. We have reviewed the range of disposals available to us and exercised our own judgement in this respect.
We have decided that it is necessary and proportionate to impose a Removal Order.
In considering the appropriate disposal, we had regard to the mitigating and aggravating features of this case. In this respect, we readily recognise that we are without any submissions or representations from the Registered Person in relation to this issue. From our consideration of the material before us, and the evidence we have heard, we have identified the following mitigating factor.
We were told that the Registered Person has no previous fitness to practise findings made against him. Whilst we take this into account, we also consider this to be a point of limited force, because the Registered Person only registered with Social Care Wales in May 2016. The circumstances that led to his referral to Social Care Wales took place barely two years after his registration.
As to the aggravating features, there has been, in our judgement, a serious departure from the Code of Professional Practice for Social Care (to which we have already referred). The conduct that we have found proved took place in a work setting and (insofar as Charge 1 is concerned) young people were in the vicinity when the misconduct took place. Insofar as Charge 2 is concerned, young people could have witnessed or overheard the events if they had come out of their bedrooms, since they took place on the landing near those bedrooms.
There was an adverse impact on Colleague A, who was described as being shocked after the incident on the landing. There is also the attempt at concealment of wrongdoing in the sense that the Registered Person put forward an implausible account for the conduct in Charge 1, maintaining that he had been videoing the young people and stopped as soon as Colleague A walked into the shot.
Additionally, as we referred to earlier, there is a lack of insight displayed by the Registered Person, which has prevented him from expressing any regret or remorse in relation to his misconduct. His misconduct has, in our view, undermined public confidence in the social care profession. We also bear in mind that the Registered Person did not attend this hearing.
In determining the appropriate disposal, we first considered whether to close the matter without taking any action. In view of the seriousness of the findings we have made, and the risk of harm we feel to be present in the Registered Person’s case, we did not consider that this was appropriate. This would be a wholly insufficient response to the matters we have found proved, in particular the conduct that we found to be sexually motivated.
Next, we considered whether to impose a Warning. We had regard to the Indicative Disposals Guidance, which provides that a Warning may be appropriate where a Registered Person has admitted the facts and impairment, there is evidence of insight and remorse, and where evidence has been provided of remedial action taken by a Registered Person. The Guidance also suggests that a warning may be an appropriate disposal where there is evidence that the impairment found is capable of being remedied and where it has been shown that the Registered Person is keen to improve and avoid such action or behaviour in the future. None of these features are present in the Registered Person’s case. Additionally, such a disposal would not, in our view, adequately reflect the seriousness of the matters we have found proved. We therefore concluded that a Warning is not an appropriate disposal in this case.
We then considered whether a Conditional Registration Order was appropriate. The Indicative Disposals Guidance provides that this might be an appropriate disposal if the Registered Person had demonstrated insight, and where there was potential for him to respond positively to remediation or retraining. These are not features of this case. There is no evidence before us that the Registered Person is currently seeking employment in the social care sector, and there is no evidence of any employer being prepared to engage him subject to conditions. Even if this was the case, we bear in mind our finding that the Registered Person poses a risk to colleagues and individuals using services. We cannot formulate a set of conditions that would adequately address the level of risk that we have found to be present in this case. Quite apart from this, a Conditional Registration Order would not be an adequate disposal in this case; we feel that the public interest requires a more significant disposal.
We then considered whether to impose a Suspension Order. The Indicative Disposals Guidance provides that this may be an appropriate disposal where there has been an acknowledgment of failings, or there is evidence before us of insight. Neither features in this case. We also recognise that a Suspension Order is appropriate where a panel is satisfied that the behaviour found proved is unlikely to be repeated. In our judgment, we cannot be confident on the evidence before us that this applies in the Registered Person’s case. This is because there is no evidence of reflection or insight before us, and the Registered Person has not attended this hearing to assist our consideration of his case. We are therefore without any information about how he would behave differently in future, or what measures he has, or will, put in place to ensure that matters such as those found proved would not re-occur. Whilst suspension would remove the Registered Person from the register for an initial period of up to 12 months, we must ask ourselves what such a disposal would achieve in the Registered Person’s case. We are doubtful that, during the suspension period, the Registered Person would undertake any reflection or be able to demonstrate any insight, particularly given his indication that he has sought employment outside the social care sector. We have therefore concluded that a Suspension Order would not be appropriate.
We have therefore decided that, on the evidence before us, only a Removal Order will be adequate. This is because, in our judgement, there has been a serious departure from the relevant standards set out in the Code. We do not consider that any lesser disposal would protect the public, given the lack of both insight and remediation to which we have already referred, and the finding of sexually motivated conduct we have made. We consider that public confidence in social care regulation would be undermined if the Registered Person remained on the Register. We therefore make a Removal Order.
We have been informed that the Registered Person was subject to an Interim Suspension Order, but that Order lapsed in July of this year. In the ordinary course of events, the Removal Order that we have made today will not come into effect for a period of 28 days. In view of the seriousness of the matters we have found proved, and our findings in relation to lack of insight, and risk of harm to colleagues and young people through repetition, we are of the view that we should make an Immediate Order to suspend the Registered Person’s registration because it is necessary to protect the public and is otherwise in the public interest.
This Immediate Order will have effect from the date on which the Registered Person is notified of it, and will remain in force either until the date on which the Removal Order takes effect, or until any appeal against our decision is upheld.