2011 (UK) FTT (HESC) IN THE FIRST TIER TRIBUNAL
[2010] 1810 POVA
[2010] 1811 PC

B E T W E E N

ARKADIUSZ STANCZUK
	Appellant 

-v-

THE SECRETARY OF STATE FOR HEALTH 
Respondent

Before:

Helen Clarke, nominated Tribunal Judge
Geraldine Matthison –Specialist Member
Wendy Stafford – Specialist Member

Heard on 31st January 2011 to February 2nd 2011.
In the  DVLA Building Theale, near Reading RG7 4AQ
For the Appellant  -  the Appellant represented himself
For the Respondent – Ms R Cottage, instructed by Treasury Solicitor .

Witnesses for the Respondent :
AM
FS
JG
JK
JR

Appeal

1.	The Appellant appealed against the decision of the Secretary of State contained  in a letter dated 12th February 2010 (the Decision Letter) :  firstly to confirm the Appellant on the Protection of Vulnerable Adults lists (the PoVA list) and secondly to confirm the Appellant on the Protection of Children Act list (the PoCA list).The Decision Letter also notified the Appellant that the effect of inclusion on the PoCA list also meant the Appellant would not be able to carry out work to which Section 142 of the Education Act 2002 applies, and that his name had been added to the Education Act list.The Decision Letter was not received by the Appellant and a further letter dated April 28th 2010 enclosing a copy of the Decision letter was sent to the Appellant with notification that the right of appeal within a three month period would run from April 28th 2010.

2.	The Appellant appealed against his listing to the Tribunal on July 25th 2010.  A response was received from the Respondent on August 18th 2010.   There was a directions hearing on September 17th 2010 when directions were set down to hear the case by February 4th 2011;these directions were further amended  on November 18th 2010 and the case was set down for a hearing between January 31st and February 2nd  2011.

3.	The Appellant in a letter dated January 6th 2011 requested the Tribunal to make an order under regulation16 1A of the Tribunal Procedure (First Tier Tribunal) (Health Education and Social Care Chamber) Rules 2008 (the Tribunal Rules) to summons JK to  attend  the Tribunal Hearing  as a witness.    The application was granted and a summons was issued to JK and a copy was forwarded to the Appellant.   

4. 	JK then applied to the Tribunal under Rule 5 (1) &(2)  of  the  Tribunal rules to set aside the witness summons to JK .The application  was considered by the Deputy President of the HESC Chamber, Judge Jonathan Aitken who refused to set aside the witness summons, but ordered that facilities would be made available for JK to give evidence via a live TV link  so that she would not need to enter the same room as the Appellant

5.	The Tribunal at the beginning of the proceedings made a Restricted Reporting Order (RRO) under Rule 14(1)(b) of the Tribunal Procedure (First Tier Tribunal)(Health Education and Social Care) Chamber Rules 2008 (the Tribunal Rules) and the Tribunal confirmed that the RRO should  continue following the end of the hearing.  The Tribunal has concluded that the order under Regulation 14(1)(b) should continue indefinitely prohibiting the publication (including by electronic means) in any written publication available to the public or in the inclusion in any written relevant programme for reception in England and Wales of any matter to lead members of the public to identify any resident mentioned in this  decision.

6.	In addition to the Tribunal bundle of papers (the Tribunal Bundle), which was prepared in advance of the hearing, the following additional documents were  included   during  the Tribunal hearing:
(i)	a copy of the six monthly probationary review of the Appellant dated 13th August 2005.
(ii)	a copy of the Commission for Social Care and Inspection (CSCI) inspection report dated August 30th (the CSCI report) for MH a residential home run by a  national charity (  the  organisation) 

7.	The PoVA Appeal was brought under S86 (3) of the Care Standards Act 2000 (CSA 2000) which states:

 “If on an Appeal or determination under this section the Tribunal is not satisfied of either of the following, namely:-

(a)	that the individual was guilty of misconduct (whether or not in the course of his duty) which harmed or placed at risk of harm a vulnerable adult; and

(b)	that the individual is unsuitable to work with vulnerable adults, 

The Tribunal shall allow the Appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the Appeal or direct the individual’s inclusion in the list.

8.	The PoCA Appeal was brought under S4 (3) of the Protection of Children Act 1999 (PoCA 1999) which is in similar terms to the CSA 2000, S86 (3) except that the wording “unsuitability to work with vulnerable adults” is replaced under the terms of S4 (3) of PoCA 1999 “with unsuitability to work with children.”

9.	On 12 October 2009, the relevant provisions of the CSA 2000 and the PoCA 1999 were repealed to allow for the introduction of the new barring regime under the Safeguarding Vulnerable Groups Act 2006. However, savings and transitional provisions as set out in the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings) Order 2009 (S.I. 2009/2611) mean that the Appellant still has available to him the mechanism under the CSA 2000 and the P0CA 1999 for appealing against the PoVA and PoCA listings respectively

10.	The Tribunal Panel needs to consider in relation to both the PoVA and the PoCA Appeals:

	(i)	Whether the Applicant is guilty of misconduct
(ii)	Whether the misconduct harmed or placed at risk of harm a child or a vulnerable adult and
(iii)	Whether the Applicant is unsuitable to work with children or vulnerable adults

11.	The burden of proof regarding misconduct is on the Respondent. Once misconduct is shown, the burden of proof is on the Appellant to   show that he is not unsuitable to work with vulnerable adults: Sini Joyce [2009] UKFPT 4 (HESC), paragraphs 51 and 59. A similar test applies to the Appellant’s inclusion on the PoCA List, save for the fact that the word ‘child’ should be read for ‘vulnerable adult’ and the appeal lies under Section 4 (3) of the PoCA 1999. 
12.	The standard of proof is the civil standard of the balance of probabilities.   We have applied the standard of proof as set out in the speeches of the House of Lords in Re B (Children) [2008], UKHL.   Lord Hoffman“…….There is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not”.

 Facts 

13.	The Appellant was employed as a  residential support worker by the organisation in  MH, one  of a  number residential houses situated on a large  residential complex  which  provides  support  for  a number  of  vulnerable  adults  including some  with physical and mental  health  needs.
The Appellant  began work with the organisation in January 2005 and  initially worked at another  residential house (RH)  but he  was subsequently transferred  to MH on  July  31st 2007  where  he  worked  until his dismissal for gross misconduct on June 3rd 2008.

14.	On March 26th 2008 KH the manager of another residential house (VH) informed the Appellant’s manager, (AM)   of an informal report by another employee that the Appellant had allegedly physically abused a resident GE.   AM informed the senior management of the organisation who instigated an investigation of the allegations (the investigation).    A number of members of staff were interviewed and as a result the Appellant was suspended and informed that a full investigation of a number of allegations about him was now being undertaken.

15.	The Appellant was suspended from all his duties on April 3rd 2008 pending the investigation, and following a disciplinary hearing was dismissed for gross misconduct with immediate effect from June 3rd 2008, and was subsequently referred to the PoVA authorities on September 4th 2008.

16.	The Appellant appealed to the Employment Tribunal against the organisation’s decision to dismiss him for gross misconduct.   The Employment Tribunal dismissed the claim on April 9th 2009.

Evidence before the Tribunal

17.	The extensive tribunal bundle included witness statements from JG, JK, AM, JR, FS, the Appellant’s observations and responses and the detailed notes taken during the investigation by the organisation. The evidence to the Tribunal from the witnesses, both in written statements and in the oral evidence to the Tribunal included incidents which took place when the Appellant was working in RH The allegations relating to misconduct relate specifically to the period of time when the Appellant was working in MH.   

Evidence to the Tribunal
Witness AM

18.	AM was working as the manager at MH on July 31st 2007 when the Appellant was transferred from RH and was the Appellant’s direct line manager.  AM said that she had been told by the senior management of the organisation that the Appellant needed to work under close supervision and in twos rather than on his own.

19.	AM said that she had been told  by the senior management  that  the  Appellant  should have a personal supervision meeting with the  Appellant  every two weeks   AM in her evidence to the Tribunal referred to the  notes  of  various  supervision meetings with the Appellant  which were  included in the Tribunal Bundle.   

20.	AM said she specifically discussed with the Appellant during the supervision meetings the effect of his loud voice and the impact that raised voices had on the residents well being.” Shouting makes them afraid and not able to trust the staff”. AM said that the residents in MH were very dependent on the staff but not all of them could express their feelings and that if the staff shouted it caused the residents distress. AM said that she had also tried to help the Appellant to appreciate the need to work with the other members of staff and in a team environment. 

21.	AM described a specific incident which occurred on October 9th 2007 (the October incident) when AM had intervened in an argument between the Appellant and another care worker AE concerning the personal care which was being delivered to a resident GW.  The argument had taken place in front of resident GW and AM had  intervened and  told both the  Appellant and AE to stop shouting at each other ,AM had then apologised to GW  for their behaviour.

22.	AM asked both the Appellant and AE to provide written statements and told them that their behaviour had been unacceptable. The October incident was specifically discussed by AM in the Appellant’s supervision meeting on October 15th 2007.

23.	AM told the  Tribunal  that she had spent a great deal of time trying to give the  Appellant support  and help  when he was  transferred MH,  she felt that when the  Appellant  had originally arrived at MH he had been angry about the transfer and had not wanted to stay permanently at MH. “ His  relationship with other  staff  was  difficult ,I  gave him a chance to  behave,  to help  him  get  over  the  transfer “
	
24.	Cross-examined by  the  Appellant  as to why it had taken  three months to report his dismissal to  the PoVA team AM said that she had reported the matter immediately to the Local Authority  Adult Protection Unit on  April 2nd  2008  but that she had found it difficult to  find sufficient  time  to collate  the necessary information together and  report the matter to PoVA.

25.	AM  was cross-examined by the  Appellant  about   one of  two  incidents which occurred  on  November 9th 2007  involving the  Appellant  and another staff worker NT.  The Appellant claimed that he had been assaulted by NT and that the matter had not been properly investigated by AM.   AM said that she had not been on duty when the incident had occurred and that she had relied on her deputy manager SJ, who had been on duty on the occasion to investigate the matter and that she had resolved that it did not require further investigation.

26 	 AM in her  evidence  referred to  the second incident involving NT and CC ( the  shift leader) on November  9th 2007  concerning the  Appellant’s  failure to  use an apron when  delivering personal care  to a  resident. AM said that   she  had raised the  issue   of   the  Appellant’s raised voice and arguments  with other members of staff in  the  Appellant’s  supervision meeting (on November 14th 2007) as  documented  in the supervision record  ( Tribunal Bundle 2 Vol  Page 80).  

27.	AM said that an urgent  telephone call from KH on  March 26th 2007 was unusual and  she  immediately recognised that the matter would have to be fully  investigated and contacted the  senior  management  in  the  organisation .

28. In her  evidence to  the Tribunal AM said that she had spoken to the  Appellant and other staff members about not speaking to  other  staff  in  different  languages in  front  of staff,  or  the  residents as  this was the organisation’s   policy. AM denied  focusing  purely  on  the  Polish  speaking staff, she  said  that  this  was an issue  for  all staff  of  whatever  nationality .

Witness FS

29.	FS is the former finance director for the organisation, he had no direct involvement in the management of MH nor had he had any previous direct involvement with the Appellant prior to the Appellant’s appeal.   FS heard the Appellant’s appeal against the decision by the organisation to dismiss him for gross misconduct on June 27th 2008

30.	Prior to the Appeal hearing FS had read all the papers which had been collated during the investigation and the disciplinary process which he described as “extensive “.  The Appeal had lasted approximately 40 minutes but FS  could not be precise  because he had not recorded the  exact  duration of the  hearing; he had mainly relied on the Appellant  to “do the talking” and  he had asked a few questions.

31.	In cross- examination FS said that he had only referred to one of the Appellant’s witnesses (JD) in his written appeal decision letter because he considered that JD was “not a supportive witness” for the Appellant. FS   refuted  the Appellant’s suggestion  that JD’s statement confirmed   that  the  Appellant had  not made  inappropriate  remarks about  residents .FS said  that  JD’s statement  said that  JD  had not  heard  the  Appellant  make such remarks and that was  not  the  same thing. 

32.	FS also stated that any employee of the  organisation who was speaking Polish or any other language in front of the residents should be reprimanded as it was against the organisation’s agreed policy.  

33.	FS in  response  to  a question  from  the Tribunal said that  he had conducted  about  10  appeal hearings  between  2006 – 2010  and that it had taken him a lot  longer to  prepare  for  the  Appellant’s  hearing  because of the  extent of  the  appeal papers  and  he  always  “read everything”  

34.	FS said that the Appellant’s responses to the allegations against him had been poor and that the witness statements had been very damning.

Witness JG

35.	JG is Polish and works for the organisation as a training instructor.  JG said that in 2007 he was asked to translate some specific handwritten Polish words into English.  JG had been uncomfortable about translating them literally because of the nature of the words and had asked to write them in English rather than to speak them. JG at the time of the request did not know who had written the Polish words.

36.	JG was also asked on a separate occasion by CM ( Director  of  Personnel & Training ) to help another Polish employee IC, by explaining to IC in Polish  the  contents  of  a statement written in English  which  had been made following  IC’s interview  on  April  8th  2008  with  CM and AM during the investigation  of the  Appellant . 

37.	JG said that CM wanted IC to be “fully happy” with the written statement before IC signed it. JG said that IC had made a few changes, he could not recall the exact changes, but they were minimal changes. JG said that IC was able to understand English but if she was stressed or anxious it was more difficult.   

38.	Asked why he had said in his witness statement that IC was frightened of the Appellant, JG said that IC had told him that she was frightened of the Appellant and that she was not happy to give evidence in Court. The Appellant questioned how IC could have said this when in April 2008 she could not have known that Appellant would go to a Employment Tribunal or a Court.   JG said he thought that IC suspected it would end up in Court, and that in any event she had been distressed about the Appellant.

JK evidence

 39. 	JK gave evidence via a live TV link and through an interpreter.
JK is Polish and began working as a residential support worker at MH on March 3rd 2008. 

40.	JK said that on March 13th 2008 (the March incident) on her second or third day actually working in MH (following her induction week) a bleeper started to ring and she was told by the deputy manager to go and help resident K and that the Appellant should help her.  JK told the Tribunal that the Appellant had not helped her, but instead threw K’s clothes at her and when she asked for help had rebuked her and said that she “knew nothing”.   JK said that she had felt degraded and upset by the Appellant’s behaviour but did not report the incident immediately because she was new and did not want to cause a problem.
 
41.	JK said that when she had worked with the Appellant he made specific derogatory remarks about different female resident’s bodies including references to the resident’s pubic hair, body hair, the size of a resident’s bottom and a resident’s genitalia. IK said that the Appellant was always fast when he changed the residents and was rather rough with them. 

42.	JK said that the Appellant had laughed and applauded when female resident JL had removed her clothes, “so she would continue to do it”. JK said this was absolutely unacceptable behaviour but she   could not   remember what she did in response  

43.	JK said that she had seen the Appellant whilst walking away from the kitchen area slap resident GE at the back of his head as he passed GE.   IK demonstrated to the Tribunal how she also saw the Appellant put his hands on both sides of GE’s head, and also put his face very close to GE and then shout at GE.  IK said that it had made GE cry and as he was in a wheelchair and had restricted hand movements he could not push the Appellant’s hands away.   JK said that she had told the Appellant   to stop it but that she did not report the incident. Under cross-examination JK said that she could not remember the exact day when she saw the Appellant slap GE and that she had not used the word “assaulted”.

44.	JK said that she had told the Appellant not to use foul language on more than one occasion.  JK said that when she told the Appellant not to do something he would scream at her and tell her not to intervene. JK  said  that  she had asked the deputy manager at MH  if she could avoid working with  the  Appellant .JK said that she did not make a formal complaint because she had only just started to work at MH and she was not sure what to do, or how  to  react  and she was afraid of  the  Appellant .

 45	JK did tell her boyfriend who worked in  VH (another residential  house) about  her difficulties  and the “whole situation” with  the  Appellant;  this  information   came to  the attention   of  the management at VH who  then  telephoned  AM .

46.	JK said she had thought that the statement she made about the Appellant during the investigation would be anonymous and that she would be protected. After her evidence had become known to the Appellant and the other staff at MH she felt she was seen as a whistle blower because she had co-operated in the investigation.     JK said that she had been shocked when in  November 2008 she  became aware  that  the  notes  of  her interview during the  Appellant’s  investigation would be sent to the  Appellant  and would not be anonymised.  Under cross-examination   JK denied having a motive for revenge following the March incident; and that she had only made the allegations on the basis that they would remain anonymous.

JR evidence

 47 	JR is a deputy director  within the  organisation  and on  May 7th 2008  chaired  the Appellant’s disciplinary hearing ( the  disciplinary hearing ) which found him guilty of gross misconduct.   JR said that although she had been provided with  documents relating to  the  Appellant’s employment  in RH, she had relied on  the incidents which had occurred when the  Appellant  was working in MH   to  reach her  decision  to  dismiss the  Appellant .The documents relating to RH had been used to provide background information about the  Appellant; and the context within which the investigation  and the  disciplinary  proceedings had been instigated.

48.	JR said that the disciplinary hearing heard evidence from the Appellant   and lasted approximately three and half hours.   JR stated she had considered each of the allegations against the Appellant as set out in a letter   sent to him on April 2nd 2008.

49.       JR had accepted the Appellant’s explanation concerning GE’s problems when sitting in a chair and therefore that specific allegation against   the Appellant was not upheld. 

50.	JR described resident GE as having an abnormally large head and that it would cause him pain to be touched on any part of his head and particularly the sides of his head as there was a shunt behind one of his ears.

51.	JR found that the Appellant had vigorously rubbed GE on the back of his neck and apparently GE on the face but there was no malicious intent.JR described GE as a very disabled gentleman with many physical difficulties including speech and communication problems, despite this JR gave the Appellant the “benefit of the doubt” but stated that it was not acceptable behaviour.

52.	JR under cross-examination acknowledged that there was no written evidence   to verify that the Appellant had been referred to a psychologist whilst in RH   although she maintained that it had happened. JR acknowledged that she had not personally witnessed any of the alleged incidents involving the Appellant  
  
The Appellant’s evidence

 53.	The Appellant   referred to the oral evidence from previous witnesses as well as giving his own account of events.   

54.	The  Appellant said   that FS had spent very little time considering AS’s appeal against the organisation’s disciplinary findings and had not wanted to get to “the bottom of the case”. FS had incorrectly interpreted JD’s statement and in his written findings stated that JD was not a supportive witness of the Appellant.

55.	The Appellant challenged JR’s recollection of events in 2006 and that her answers had been vague. The Appellant specifically refuted JR’s claim that he had attended a meeting with  a psychologist.  The Appellant accepted that he did have a series of supervised meetings with BD whilst   working in RH, but that these had taken place in 2007 rather than 2006.  

56.	The  Appellant said that AM’s  evidence was  also vague and had  contained gaps and discrepancies in  the  dates  including the  claim  that  the Appellant’s action plan  had  been implemented by AM on  October 25th  2007 after two incidents between the  Appellant  and other members of staff.

57.	The Appellant stated that he had made the decision to remain at MH after the disciplinary appeal hearing had not upheld all the allegations against him in relation to an incident in RH.  “I would like to point out it was entirely my decision to stay there.”	 

58.	The Appellant acknowledged that there had been an incident with JK
(the March incident) but questioned the veracity of JK’s statement and claimed that  there were inconsistencies between her written statement, and her oral evidence to the Tribunal. The Appellant refuted JK’s accusation that he had harassed or unfairly discriminated against  residents by his remarks when he had been paired with JK, as  he had never been paired with JK after the  March incident .

59.	The Appellant said that he had asked  JK to help him with resident K on 13th March 2008 on JK’s second or third day at MH. The Appellant said “I was holding him up in the bathroom and asked her to help me put the shoes on him.” The  Appellant  denied throwing clothes at JK or saying to  her  “ you  know nothing” the  Appellant  said  that he had reported the matter to the deputy manager and said not  to send JK to  help him  again as  resident  K needed two males as he was heavy.  The Appellant   denied working directly with JK after the March incident although he accepted that they had worked on the same shift three to four times after the March incident but said that JK did not speak to him or approach him during the shifts.

60.	The Appellant said that a discussion had taken place between the Polish staff in the staff room at MH concerning the personal care of some of the female residents and that he had suggested that the matter should be referred to their supervisors. The Appellant said that JD had witnessed that conversation and that it was referred to in his statement (Tribunal volume 1, page 272).

61.	The Appellant said that he did not understand why the problem with the other staff had arisen as he had “never received any warning signs.”  The Appellant said he was not told he was perceived to be intimidating, nothing had been mentioned during his supervision meetings, and he had never been accused of doing anything that affected the residents.
	
62.	The Appellant said that JK’s shock and reaction when she realised that her comments made during the investigation would not remain anonymous, had led him to the conclusion that JK wanted to retaliate against the Appellant and felt able to do so because she thought the allegations would remain anonymous.    The Appellant also observed that if JK needed an interpreter to give evidence to this Tribunal how did JK manage three years ago to understand all the questions during the investigation in April 2008?

63.	Under cross examination the Appellant agreed that in 2006 and 2007   he had been told that he had a loud voice and accepted that he had raised his voice with other staff when working at MH, including an incident with FH concerning a karaoke machine.    “I felt that she was trying to blame me, it led to raising voices on both sides.”

64.	The Appellant agreed that the October incident had taken place and said that he had asked AM to come and resolve the matter. The Appellant accepted that by October 2007 he had been reminded a few times about his voice, but said that he did improve and that in January 2008 he was appointed as the key worker for GE.

 65.	The Appellant under cross – examination:

(a)	 denied applauding resident J when she attempted to remove her clothes.
(b)	 did not remember that he had ever shouted in IC’s presence 
(c)	denied the alleged incident where it was claimed he was astride GE’s wheelchair and making inappropriate sexual remarks.
(d)	denied that the other Polish staff were frightened or intimidated by him and said that one of the other members of staff had actually bought a car from his girlfriend.  
(e)	claimed  that his relationship with JD was strictly limited  to  work

(f)	denied ever  hitting or slapping GE or using inappropriate language with GE although he might have punched the air with GE’s arm ”maybe as an activity.”  

66	In response to a question by the Tribunal the Appellant said that he had not been welcomed by the other staff at RH because he was initially friendly with one of the managers.  When the Appellant moved to MH it was a different environment as everyone worked in pairs, but he   “didn’t feel supported and that he was constantly getting a telling off and he felt under surveillance.”

67.	The  Appellant   said that  the  statements  from  his  witnesses in the  original disciplinary hearing had  been  disregarded and  that  his witness information had not been taken into account by the authorities when he was referred to the PoVA   list. When asked by the Tribunal about the lack of any witnesses on his behalf the Appellant said that he was not in contact with any of the staff and that he did not know where they were living or working.

68.	The   Appellant   said that he denied all the allegations that had been made against him and that he could not show remorse for things that he had not done.    

.	Submissions

69	 The Respondent relied on the heads of misconduct  contained in  the Respondent’s response to  the  Appeal  and   stated   that  the allegations against the Appellant  relevant  to  the  issue  of misconduct  were :

(i)	that the Appellant had physically assaulted service user (GE) (without malicious intent).
(ii)	harassment of and unfair discrimination against various service users using foul language.
(iii)	making inappropriate sexual gestures to a female service user (JL)
(iv)	making inappropriate remarks about female service users’ pubic hair.
(v)	failing to provide the necessary help on one occasion to service user (JL).
(vi)	using verbally abusive and intimating behaviour towards colleagues in front of service users
. 
70.	The Respondent submitted that with one exception the allegations if substantiated placed vulnerable adults at risk of harm. It was accepted that making inappropriate remarks about a service user’s pubic hair, did not specifically place the service user at risk of harm but  that it did demonstrate a lack of insight of appropriate behaviour.

71.	The  nature of the Appellant’s misconduct demonstrate a repeated pattern of behaviour and the Appellant neither recognises the inappropriateness of his conduct nor takes responsibility for it and as a result is unsuitable to care for vulnerable adults.

72.	The Respondent cited   the Angella Mairs [2004] 269 PC  decisions  specifically referring to paragraph 111 which makes observations concerning suitability and highlights that past performance and the nature of the misconduct would be relevant.

73.	The Respondent submitted the following issues were relevant to the question of suitability:

(1)	There had been a series of incidents involving the Appellant over a period of time, it was not just the incidents in March 2007.
(2)	Any touching of the head of face of resident  GE  could cause distress to GE, and be intimidating.
(3)	Shouting or abusive behaviour to members of staff could be intimidating or cause distress for vulnerable  residents as well as  the staff .
(4)	Standing astride a wheelchair user and making sexual remarks was unacceptable behaviour by any standards.
(5)	The incidents were relatively recent yet the Appellant had shown no recognition that any of his behaviour was inappropriate.
(6)	The   Appellant had claimed he did not receive proper support in MH but in fact the management spent an extraordinary amount of time trying to support the  Appellant 
(7)	The Appellant  had been given every opportunity to improve his behaviour  and insight  but he failed to do so.
(8)	The conspiracy theory that all the staff had targeted  the  Appellant  because they thought the allegations would remain anonymous should be rejected.
(9)	JK had been scared of the  Appellant  and that was why she did not say anything to her line manager.   It was only because JK had disclosed  her   concerns  to  her boyfriend who had then mentioned the  matter to other staff within the organisation, that the wider  issues with  the  Appellant’s   behaviour   came to light.
(10)	JK was very new to MH and had not yet become entrenched in the culture at MH so when  the  Appellant  was investigated she  had disclosed  information about  the  incidents  that  she  had  witnessed 
(11)	The fact that JK was frightened and intimidated by the  Appellant  did not undermine  her honesty and JK had been a reliable witness and her comments had been supported in her statement by the observations of IC and PP.

74.	The Respondent submitted that the  Appellant  always sought to blame someone else for  his  problems  and the  specific  incidents  but the evidence was cogent and compelling and established both misconduct and unsuitability and for that reason the Appeal should be dismissed.

75.	The Appellant  submitted that his Appeal should be upheld because:

(1)`	He had never before been referred to either the PoCA or the PoVA lists.
(2)	He had never been deemed to pose a risk to vulnerable people.
(3)	His dismissal from  the  organisation  was because of the allegations made  by JK and not because of his overall performance or work at the organisation.
(4)	Aside from JK’s evidence there were no notes, supervision reports or complaints or recorded incidents about his behaviour.
(5)	IC and PP (another member of  staff  at  MH) were experienced members of staff and they could have mentioned any  problems they  had  working  with him in  their supervision meetings, but nothing had been produced to verify this.
(6)	IC and PP had a duty to report the alleged  incidents but had failed to do so.  There was no evidence of him  intimidating  IC and PP apart from their own  interview notes during  the investigation.   
(7)	 PP and IC had been asked to give testimony during the Employment Tribunal proceedings but they had refused to do so after they realised that they would not remain  anonymous .
(8)	IC was  able to understand English sufficiently well enough not to need an interpreter  during the original  investigation meeting in April2008,  why  did she then  need help  with understanding  the  written  statement  for  that  meeting ?

76.	The  Appellant  submitted that  the other staff   should have reacted  and reported  him if they  thought  they  saw  acts  of abuse and that  they  knew that  failure to  report  a suspicion  of  abuse ,was also  punishable.  

77. 	The Appellant   in  his  concluding remarks  agreed   that   he had had  “up  and downs”  in   his  employment , but it was  his  first  job   in  the  care field  and in  the UK  and that  some of  the  difficulties  were  due to  perception  and a different culture .  He  accepted  that he  had  made  some  mistakes and  he would now  approach things  in a different  way. 

Finding of Facts and Conclusion

78.	The Tribunal has adopted the approach of the Employment Tribunal hearing, and the disciplinary hearing, and in reaching its decision has  only considered the allegations of misconduct by the  Appellant  when he was  working  in MH . The Tribunal has taken into account  all the evidence including   the evidence and  documentation  relating  to the Appellant’s employment  in RH when considering the Appellant’s suitability to work with vulnerable adults.

79	In Angella Mairs [2004] 269 PC, a case dealing primarily with an appeal against a PoCA listing, the Tribunal set out a number of principles of what constitutes “misconduct”, including [para 109]:
(1) “Misconduct is not defined in the [PoCA 1999] nor is the term qualified by any adjective such as ‘serious’ or ‘gross’.” 
(2)	 “In principle, a single act of negligence could constitute misconduct (per Webster J in R v. Pharmaceutical Society of Great Britain ex p. Sokoh (1986) The Times, 4 December) but in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling”.

80	Not all those found guilty of misconduct will be held to be unsuitable to work with adults or children, as stated  in  Angella Mairs, each case must be looked at on its own facts and in context, and the judgment as to unsuitability will involve 
“111. Unsuitability to work with children
Unsuitability must be judged by the Tribunal at the date of the hearing. The judgment will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances. The judgment will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm. The Tribunal may have regard to:
(a) the number of the incidents constituting the misconduct established for the purposes of section 4(3)(a) of the Act;
(b) the gravity of that misconduct;
(c) the time that has elapsed since that misconduct;
(d) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child;
(e) the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and
(f) extenuating circumstances surrounding the misconduct.
This should not be regarded as an exclusive list. The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad.”
81.	The Tribunal found AM to be a credible witness and accepted AM’s account of the October incident when the Appellant   and AE had argued in front of a resident GW .The Appellant in his oral evidence under cross-examination acknowledged that by arguing with a co-worker in front of a resident he was putting the resident at risk of harm.

Allegation 1 Physical assault of service user GE (without malicious intent).

82.	JK gave evidence against her wishes and via a video link, but her account was clear and the Tribunal found her to be a credible witness.  The Appellant in his witness observations to PoVA dated November 29th 2009 stated that this allegation along with others was based on “no evidence, namely dates, places, surroundings and circumstances”.   The Tribunal accepts that no date has been specified as to when the alleged incident involving GE took place but that does not mean that it did not happen.   

83.	JK admitted that she did not report the incident because she was very new and did not wish to cause problems, but she discussed the incident with her boyfriend who worked in VH.

84.	AM in her oral evidence to the Tribunal confirmed that she had received an unexpected telephone call on March 26th 2008 from the manager of VH who told her about the allegations including the allegation that had been made about GE.

85.	During the subsequent investigation of the allegations (the investigation) other care workers at MH were specifically asked whether the Appellant had hit or slapped GE on the head or caused him to cry.   IC and JD both stated that they had not witnessed the Appellant shaking GE on the back of his head.  
JD in the investigation notes stated that the Appellant’s loud voice did upset GE “because it is in his nature to be very loud this could upset GE”.  

86.	 Another support worker PP in her statement during the investigation (Tribunal Bundle page 314) stated that she had “witnessed occasions when GE was screaming and the Appellant would sometimes get close to GE’s face and say shut up in an aggressive way.  Sometimes he would try to get GE to be quiet in a nice way”.   

87	 The evidence to the Tribunal that the Appellant hit GE was conflicting.  JK’s evidence to the Tribunal was clear that the Appellant had touched GE’s head shaking it and caused him distress.  There is however no other account by any other care worker to corroborate JK’s account and JK herself under oath said that she did not consider it to be an assault.  

88.	 The Appellant submitted that JD had denied witnessing the Appellant physically shaking GE on the back of his head but he had acknowledged seeing the Appellant stroking the side of G’s face in a friendly but not malicious manner.   JD did not give evidence on behalf of the Appellant and was not cross-examined on the point, by contrast JK was cross-examined repeatedly by the Appellant and consistently maintained that she had witnessed the Appellant touch GE’s face causing him to become distressed.

89	 JK also described in her oral evidence the Appellant putting his face very close to GE and shouting at him and causing him to cry. This allegation was also mentioned by PP during the investigation. Despite  giving  evidence against  her  wishes  the Tribunal  found  JK  to be a  credible  witness and  accepts   as   plausible   that  she witnessed  the Appellant   touching  GE’s  head in a  way  that   may  have caused  GE  distress . The  fact  that  other members  of staff    never witnessed  that  specific  event  does not  mean that  it  did not  happen . The  allegation  against  the  Appellant  specifically  states  that  there was no  malicious  intent  involved  and  so  with no  other  supporting  evidence   the  Tribunal ,whilst  not  condoning any  behavior  which  may  have caused a  resident  distress,   does not   regard  this  specific  incident as sufficient  in  these  particular circumstances  to  be misconduct .

Allegation 2	Harassment of and unfair discrimination against various service users by using foul language

 90 	During the investigation both JK and IC said that they had heard the Appellant swear in Polish in front of the residents. Other members of staff at MH including JD said that they had not heard the Appellant swear in front of residents.  IC said that she had heard the Appellant teach resident GE Polish swear words.  The Tribunal finds that the Appellant and other Polish workers did speak in Polish when on duty which was against the organisation’s policy.   The Appellant had been specifically reminded not to do so in his supervision meeting on September 29th 2007 (volume 2 Tribunal Bundle page 75.)    

91.	 The allegation by IC and JK concerned the Appellant’s use of obscene language and the   use of specific explicit sexual phrases which neither IC nor JK felt comfortable expressing verbally to third parties.   The statements were written down and translated from Polish into English and included referring to a resident as having a “very hairy c---” and describing resident GE as “you are a f----d up fellow and shut the f--- up.”     JK’s evidence to the Tribunal was plausible and the Tribunal finds that when working with IC and JK the Appellant did on occasions use obscene and sexually explicit language words in Polish to describe residents in MH.

92.	Using  abusive  derogatory and sexually explicit  language in  front  of  residents  was  unprofessional and could cause distress and  harassment  to  other employees . The Polish  employees  understood  what the  Appellant  said and the  Appellant   knew that  it  made  the female Polish  employees   uncomfortable . JK  said  that she  tried to  tell the  Appellant  not  to  swear  on a number of occasions, but  he   had  screamed   at her. IC  in   the  investigation had said “ He  speaks  rudely about  residents  and  she  is  ashamed  to  hear  it “   Asked why  she did not  report  it   she  replied  “ She stated  that she was   scared of AS (  the  Appellant). She is of the  opinion that  he is  aggressive  and she does not  want  to make AS  angry  as   she  remembers  the  argument between  AS and NT “ (   Vol 2 Tribunal Bundle page 308) .

93	The Tribunal finds that the   Appellant used foul, offensive language as a means of intimidating and harassing   other employees. The staff at MH worked in pairs   to deliver personal care to the residents and needed to feel comfortable and able to work together as a team. The Appellant’s  use  of abusive language  to  IC and JK  was intimidating  upsetting  and totally  inappropriate  and as a consequence  did amount to  misconduct  which  could put a  resident at  risk  of harm . 
  
Allegation 3 Making inappropriate sexual gestures to resident JL

 94.	IC who did not give evidence to the Tribunal during the investigation alleged that the Appellant had sat astride the wheelchair of resident JL and had made inappropriate sexual gestures at her.   JK in her evidence said IC had told her about the incident, but JD had denied witnessing the event.  This allegation has not been verified by direct evidence, and the Tribunal is unable to make a finding of fact on the point.

Allegation 5 Failing to provide the necessary help on an occasion to service user JL

95.	The Appellant is alleged to have laughed and applauded when a female resident JL attempted to remove her clothing during a seizure activity.   The Appellant denied encouraging resident JL but admitted that he might have laughed to cover his embarrassment (Tribunal Bundle, Volume 2, page 390).   JK in her oral evidence said “he was laughing and applauding so she would continue to do it.”  PP during the investigation stated that on several occasions when JL had attempted to take off her clothes the Appellant had laughed at JL and made facial gestures (PG 151 volume 2 Tribunal Bundle).    IC during the investigation said that she did not see the Appellant applauding when JL removed her clothes but she had seen him laugh on several occasions.

96.	The Appellant admitted that he had laughed at JL when she removed her clothing but claimed that this was out of embarrassment. The Tribunal does not find that explanation convincing.   The Appellant by October 2007 had worked as a care worker for over two years and had received regular training and should have realised that such a response was inappropriate and might encourage the resident further. The Appellant admitted that he would laugh at JL and IC stated during the investigation proceedings that the Appellant had laughed on at least 2 – 3 occasions (   Vol Tribunal bundle page 147) 
The  Tribunal  finds  that  the  Appellant responded in a totally inappropriate and insensitive  manner to  a  resident ‘s behaviour  during  her  seizure activity   and  that it  constitutes  misconduct likely  to put a  resident  at  risk of  harm.  

Allegation 6 Using verbally abusive and intimidating behaviour towards colleagues in front of service users

97.	AM was sufficiently concerned about the October incident that she insisted that both the Appellant and AE provide written statements of what had occurred.   AM also made a written record of the incident and she subsequently referred to the incident in the Appellant’s supervision meeting on October 15th 2007 (Tribunal Bundle page 80).   AM highlighted that the safety of the resident in such a situation was paramount.

98.	The Appellant by October 2007 had been working as a support worker for over two years, he had attended a number of training sessions, had regular supervision meetings and must have known it was totally unacceptable for staff to shout and argue in front of residents, and that such behaviour could put a resident at risk of harm, because whilst the staff were shouting at each other they would not be paying sufficient attention to the needs of the resident.

99. 	The Tribunal finds that by shouting and arguing with  another  member of staff  in front of a vulnerable  adult  resident there was a risk that the resident would have  become  distressed and frightened and that  could put  the  resident  at risk of harm. The residents in  MH had complex  physical and mental health needs, and not all residents would have been able to easily communicate their needs or fears except by non-verbal signals which  could easily become  ignored  in  the  midst  of  a  heated  argument.  The Tribunal finds that the Appellant’s behaviour during the October incident was unprofessional and capable of being regarded as misconduct.

100.	The Tribunal accepts as credible JK’s clear account of the March incident when the Appellant and JK went to help a resident K.   JK said that the Appellant had been unhelpful and had thrown the resident’s clothes at her and then verbally abused her.   The Tribunal accepted JK’s explanation that she did not report the incident immediately because it was only her second or third day actively working at MH (after an induction week) and she did not wish to cause trouble. Under cross-examination by the Appellant, JK’s account of the March incident remained consistent.

101	The Appellant denied shouting at JK or verbally abusing her but during his own cross-examination of JK acknowledged that something had occurred when he worked with   JK when he stated; “you were upset with me after March 13th and didn’t want to work with me.”.  The  Appellant  sought  to  deflect  the  blame by  claiming  that  he had  asked JK  to  help  assist resident K and in his  written representations (  Vol 2 Tribunal Bundle  page  381 stated  “she had  panicked and did not offer a lot  of assistance . I believe that JK did not like those comments”.

102	 SJ, the Deputy manager  on  duty on  March 13th 2008   when interviewed during  the  investigation  said that she had seen  JK crying and that  the Appellant  had  told  SJ that  “ in his view , JK  was  not  capable of doing anything”(  Vol 2 Tribunal  Bundle page  294.) SJ subsequently  observed JK  working  and  concluded  that  JK “ was doing very well” 

 103	 The Tribunal finds that on March 13th 2008 the Appellant did verbally harass JK  and behaved in an aggressive and intimidating manner in front of a resident. The Appellant had by March 13th 2008  received  extensive guidance through his supervision meetings and action plan and he knew that it was imperative that he worked in a supportive manner with other staff at MH.   JK was a very new worker, who was still learning how to interact with the other staff and residents and she required and deserved support and help from her work colleagues .

104 	The Appellant’s behaviour was intimidating, degrading and could easily have caused JK to panic and make a mistake when assisting the resident.
The Appellant’s behaviour to JK did put  resident K (who was in the bathroom  and in  the  process of being transferred  to  her  wheelchair)  at risk of harm and does constitute  serious misconduct .   

105	The Tribunal Bundle contains evidence through the supervision notes that the Appellant was reminded on several occasions of the importance of not arguing with other members of staff and of the need to have a team ethos.    The interpreter (JG) said that when he had spoken with IC she had told JG that she was afraid of the Appellant.   The Tribunal found JG to be a credible witness and did not doubt the veracity of his observation.

106	The Tribunal rejects the Appellant’s claim that he did not receive support in MH and that he was always being “told off”. The Tribunal finds that the Appellant received extensive supervision and support  from  AM  when he was transferred to MH as documented in the supervision reports of AM and the action plan included in the Tribunal Bundle.    The Tribunal finds that AM had repeatedly tried  to  help the Appellant recognise that his voice, manner and approach to other staff was inappropriate and had to be modified during the Appellant’s supervision meetings in the autumn of 2007 

107	The Tribunal Bundle  contains several references in the investigation proceedings to other  members of  MH staff  having difficulty  working with  the Appellant including JD  who  the  Appellant  regarded  as a supportive witness , who said “ AS has a behavioural problem , he has a bad  temper , is  selfish and does not  often listen to anyone else “ (  Vol 2 Tribunal Bundle page 302) . The Appellant in his appeal response said that the allegations made by JK and IC were suspect, and not to be trusted, because they had been made when they originally thought that the allegations would remain anonymous.   The Tribunal accepts that JK was a reluctant witness and possibly did originally believe that her comments would remain anonymous;   however that strengthens her claim that she was intimidated by the Appellant and reinforces why she failed to report the incident immediately.  

 108	The Appellant’s appeal response also contains criticisms and observations about the investigation process undertaken by the Independent Safeguarding  Authority ( ISA) when deciding to place the Appellant on the PoVA and PoCA list. The Tribunal’s role is to  consider  and evaluate evidence presented  in  the  Tribunal  bundle and  during the hearing and makes no  comment on the investigative  processes carried out by ISA when investigating the Appellant’s  referral .   

109 	The Appellant also challenged the decision because of the lack of written documentation and verification of the alleged incidents. The  Tribunal rejects  this  argument because  the  October incident was recorded  and the Tribunal Bundle includes a considerable amount of documentation including the supervision meeting  notes whilst  the Appellant worked at MH  and the detailed statements during the investigation proceedings relating to the alleged incidents.

 110	The Appellant is correct in stating that if JK  or  IC had  concerns  about   his   behaviour  towards residents  they  should have reported   them immediately. However the Tribunal finds that because of the level of intimidation and fear that the Appellant had invoked in JK and IC they were not prepared to report incidents because of their fear of the Appellant.     The Tribunal asked the Appellant as to why no witnesses had appeared to support his appeal, in particular JD or other members of staff who had made favourable comments about the Appellant.   The Appellant said he had lost contact with all his co-workers and did not know where they were living or working. 

111	The Appellant said his referral to  PoVA did not occur until September 15th 2008 and that that referral was only instigated because the Appellant had submitted an Employment Tribunal  claim against  his  former employer .    The Tribunal does not condone the delay in referring the matter to  PoVA  but  AM did contact the Local Authority  Social Services Department and the matter was investigated.   The organisation had a duty to refer the matter to PoVA as the Appellant was dismissed for gross misconduct which placed at  risk of  harm a vulnerable adult and the timing of the Appellant’s Employment Tribunal application  is not relevant.
 
Unsuitability

112.	The Tribunal has established that misconduct did occur which placed a vulnerable adult at risk of harm, it therefore has to also consider  whether the Appellant  is  unsuitable to work with  vulnerable  adults or  children. 

113.	The Tribunal does not consider the Appellant suitable to continue to work with vulnerable adults because despite regular support and supervision over a number of years, the Appellant has continued to have  repeated incidents and problems  with other  staff .and his behaviour in front of residents has continued to place residents at  risk of  harm. The evidence demonstrates  the  Appellant had repeated   arguments and behaved inappropriately  with other members of staff at  MH and the Appellant  failed or  refused to  recognise how  his behaviour   affected the  other staff  and residents at  MH. 

114	The  Appellant  in  his  oral evidence  to  the Tribunal said he  did  not  understand why  the problem had  arisen he “ never received any  warning  signs” This  lack of  insight  leads the Tribunal to the conclusion that the Appellant has been unable to demonstrate that he has  learnt  from  his mistakes  and  is capable of working in a team environment and displaying the sensitivity and insight that is necessary when working with vulnerable adults.  

115 	 The Appellant in his appeal response and his oral evidence said that it was hard for him to show remorse and understanding for something that he did not do.  The  Appellant  did  in  his closing  submission  to   the Tribunal acknowledge  that  he did make some  mistakes but the Tribunal  remains unconvinced  that  the  Appellant  has   the  insight  to  recognise how much  his  intimidating  and argumentative  behaviour  affected  and  impacted upon   both  residents  and  other  staff. 

116	Having considered all the written and oral evidence the Tribunal considers   the Appellant is unsuitable to work with vulnerable adults. The Tribunal has concluded that the Appeal under S 86 of the CSA 2000 in respect of the PoVA Appeal must be dismissed

117.	The Appellant has also been placed on the PoCA list therefore the Tribunal needs to consider whether or not the Appellant is also unsuitable to work with vulnerable children.    The Tribunal finds that the Appellant’s behaviour which led to the finding of misconduct is sufficiently serious that it would not be appropriate to separate out the PoCA Appeal and treat it differently.  
The Tribunal confirms that the POCA 1999 S4 Appeal must also be dismissed. 

 DECISION

The Tribunal confirms that both the Appeals are dismissed .

Helen Clarke, Tribunal Judge 
Geraldine Matthison, Specialist Member 
Wendy Stafford, Specialist Member 

March 3rd  2011