First-tier Tribunal (Health Education and Social Care Chamber)

 

FIRST TIER TRIBUNAL

 

BETWEEN

 

STEVE LLOYD SIMPSON

Appellant

 

AND

 

GENERAL SOCIAL CARE COUNCIL

Respondent

 

[2010] 1815.SW-SUS

 

 

DECISION

 

 

BEFORE

 

MR. STEWART HUNTER (TRIBUNAL JUDGE)

Ms PAT McLOUGHLIN

MR. GRAHAM HARPER

 

 

Heard on the 1^st December, 2010 & 14 ^th January, 2011

Birmingham Magistrates Court

 

 

Representation

 

For The Appellant: Mr. Simpson appeared in person

For The Respondent: Ms. A. Felix (Counsel) – 1^st December, 2010

Mr. J. Lynch (Counsel) – 14^th January, 2011

 

Appeal

 

1. The Appellant appeals pursuant to Section 68 of the Care Standards Act 2000 against the decision of the General Social Care Council (“GSCC”) dated the 26 ^th July, 2010 to suspend him from the Social Care Register for a period of two years.

 

Evidence

 

2. The Appellant was born on the 20^th September, 1965.  He commenced working for Sandwell Metropolitan Borough Council, (“the Council”) on the 21 ^st March 2005, initially as a planning and commissioning officer in the social services department.  A restructuring exercise was carried out by the Council in 2006 and in January, 2007 the Appellant together with two other commissioning officers were given “at risk” status as no alternative posts were designated for them.  The Appellant then undertook a variety of tasks including complaint handling and the accessing of records of young people within the Leaving Care Service; the Appellant’s role being described by the Council as being a quality assurance officer.

 

3. In August, 2008 Ms. Diane McKinley was appointed service manager and her responsibilities included direct management of the quality assurance officers within the quality development unit.  Ms. McKinley was the Appellant’s line manager from November, 2008. 

 

4. In March 2007 the Council introduced a computer system known as the Websense Security Suite which was said to be capable of monitoring individual employee’s internet usage.  On the 21^st November, 2008 a system generated Websense report identified the Appellant as being the most prolific user of the Council’s internet access facility on that particular date.  The matter was reported to the Council’s human resources department and subsequently the Children and Young People’s Service in which the Appellant was employed, commissioned an investigation by the Council’s Corporate Investigation Team, (“CIT”). 

 

5. The investigation was carried out by Mr. Harry Clarke, an Investigation Officer with the CIT. The request from the Children and Young People Services for the carrying out of an investigation having been received by the CIT on the 19^th February, 2009.  It being alleged that the Appellant had used the Council’s internet access facilities to excessively browse non-work related websites and that the Appellant had accessed or attempted to access inappropriate websites.  The Appellant was suspended from duty by the Council on the 11^th February, 2009. 

 

6. A disciplinary investigation report was prepared by Mr. Clarke dated the 6^th April, 2009 to which were attached a number of appendixes setting out the evidence that Mr. Clarke had obtained as part of his investigation. In describing the Websense Security Suite system Mr. Clarke stated as follows in his report:-

 

“The Websense Security Suite, an internationally renowned software programme, was introduced throughout Sandwell MBC IT systems in March, 2007.  The system is capable of monitoring internet usage by each Sandwell MBC employee who has been assigned their own unique log on details and password for access. 

 

Websense allows reports to be produced detailing which websites have been accessed by an individual’s own volition or automatically by the computer.

 

In addition Websense reports detail “pop ups”, “pop unders” and clickers, that an individual may not have accessed directly themselves nor may have any knowledge that these actions are recorded against their user name.  It is therefore not possible to positively identify websites that an individual chooses to access. 

 

Assuming users do not share their log on or password details, all internet activity can be attributed to only one person.

 

Websense will automatically assign each website visited (either by choice or automatically) into a category listing that suggests the content of that site.  These categories are not assigned by Sandwell MBC but instead by the Websense System (and its administrators).  These categories include, amongst others, productivity, business and finance, information technology, adult material and sex. 

 

Dependent on the category of the website as defined by the Websense System, users may be blocked from gaining access to certain websites.  These potentially inappropriate categories include illegal, inappropriate gambling or adult material or sex amongst others.  Access to websites falling into the aforementioned potentially inappropriate categories is restricted.”

 

7. In relation to the allegation that the Appellant had used the Council’s internet access facility to excessively browse non-work related websites, Mr. Clarke stated that the Websense report had provided details of the browse time of internet activity between August and November 2008 which related to the Appellant’s internet access log on details and passwords. The periods of access were said, during the period in question, to range from 4 minutes to 5 hours 26 minutes. 

 

8. Mr. Clarke had also obtained details of the Appellant’s recorded annual leave during the period April, 2008 to March, 2009.  This had been checked against the alleged periods of internet access in question,  Mr. Clarke stated in his report that there appeared to be no access on dates when the Appellant was on annual leave.

 

9. The second area of investigation by Mr. Clarke was in respect of the allegation that the Appellant had attempted to access inappropriate websites using the Council’s internet access facility.  Attached to Mr. Clarke’s report were details of websites accessed using the Appellant’s internet access log on details and passwords on Tuesday and Thursdays between August and November, 2008.  The same list indicating the website category, the number of overall “hits” received and whether access was permitted or blocked.  A number of websites detailed as having been accessed were said by Mr. Clarke to have been identified as including sexual content.  There was also a website list showing all unsuccessful attempts to access websites deemed as inappropriate that were made using the Appellant’s internet access log on details and passwords during the period in question.  The Appellant’s recorded annual leave was again checked against the alleged periods of access in question and Mr. Clarke stated that there appeared to be no access on dates when the Appellant was on annual leave.

 

10. Mr. Clarke also commented in his report as follows:-

 

“One of the potentially inappropriate websites accessed using Mr. Simpson’s internet access log on details and password (entitled www.hotsexyplumpers.com) appears to have received numerous “hits” on one specific date.  This document details Mr. Simpson’s internet access history for that day and appears to show “hits” at various points throughout the day.”

 

The day in question related to the 28^th October, 2008. 

 

11. On receipt of Mr. Clarke’s report it was determined by the Council that there was a case for the Appellant to answer at a disciplinary hearing.  On the 27 ^th April, 2009 a letter was sent to the Appellant by the human resources advisory services of the Council notifying him that a disciplinary hearing had been arranged for the 27^th May, 2009.  On the 30^th April, 2009 the Appellant wrote to the Council resigning from their employment.  The disciplinary hearing proceeded on the 27^th May, 2009, which the Appellant did not attend.  The Appellant was found by the disciplinary committee to have excessively browsed non-work related websites during the working day and accessed and made attempts to access inappropriate websites containing adult sexual material. The Council wrote to the Appellant on the 28 ^th May, 2009 informing him of the outcome of the disciplinary hearing stating that given that the allegations against him had been found to be proven he was dismissed from his post as a planning and commissioning officer with immediate effect.

 

12. The Appellant’s dismissal for misconduct was referred by the Council to the General Social Care Council, (“GSCC”). 

 

13. On the 16^th September, 2009 the Appellant wrote to the GSCC regarding the matter that had been referred to them.  In that letter the Appellant stated that he had no criminal convictions and had been employed in a number of social care and criminal justice posts since his qualification as a social worker in July, 1994.  He had an exemplary work record and no concerns had been raised about his work ethos or standard of work input. 

 

14. The Appellant went on to explain the re-deployment process which had taken place at Sandwell stating that at the time of the alleged offences were said to have taken place he did not have a job title nor was there a specific role in which he was employed.  The work that he was allocated was said to by the Appellant to have taken him between 1 to 2 hours a day to complete.  He had been unhappy in his role following the re-organisation of the department and he stated that his manager, Ms. McKinley was aware of his unhappiness.  He had not been given the appropriate supervision that he had requested.  He considered that he had been unfairly treated by the Council.  In the penultimate paragraph of his letter the Appellant stated as follows:-

 

“My final comments concern the second point of the complaint made against me in that I “accessed or attempted to access inappropriate websites whilst at work”.  I have been fully aware that when Sandwell MBC “refreshed” its entire computer database, this process (in June/July, 2008) involved the installation of spy software.  With this in mind, it would be a foolhardy act to try and access adult based websites knowing that there was a high risk of being caught and the implications that could follow as a result.”

 

15. An Interim Suspension Order, (“ISO”) was imposed on the Appellant by the GSCC and that Interim Suspension Order was reviewed by their Preliminary Proceedings Committee, (“PPC”) on the 19^th March, 2010.  The Appellant did not attend the meeting which proceeded in his absence.  The PPC decided to revoke the Interim Suspension Order on the Appellant’s registration, the Committee not being satisfied on the balance of probabilities that an ISO was necessary for the protection of members of the public or otherwise in the public interest.

 

16. The allegations against the Appellant were considered by the GSCC’s Conduct Committee on the 26^th July, 2010.  The Appellant did not attend and was not represented.  The Committee heard evidence from Mr. Clarke and Miss McKinley.  The transcript of the committee hearing indicates that the committee members found that both Mr. Clarke and Miss McKinley were truthful and accurate witnesses.  In determining the facts, the comments of the Chairman of the committee included the following:-

 

“The registrant, whilst choosing not to attend the hearing, did make a number of points in writing which were considered by the Committee. From this, it was apparent that he accepted that he had made excessive use of the SMBC’s computer system to browse non work related websites however, the registrant did not accept that he had either accessed or attempted to access websites containing sexually explicit material. 

 

The Committee was satisfied on a balance of probabilities that the registrant had spent an excessive amount of time browsing non work related websites.  The evidence gathered by Mr. Clarke made it plain that the registrant would not have needed to spend more than perhaps 30 minutes of his working day involved in internet access. The SMBC computer system had monitoring software installed which revealed that between August and November, 2008, the registrant had accessed the internet for varying periods, some very short, but on other occasions for periods as long as 5 hours and 26 minutes in any one day.”

 

17. In relation to the access or attempting access of sexually inappropriate websites, the Chairman of the Committee stated as follows:-

 

“Mr. Clarke explained the log on procedures applicable to the registrant and he also highlighted the fact that when the registrant was on holiday his log in was not used at all.  In addition Mr. Clarke drew attention to the pattern and nature of the sites visited.  The Committee was satisfied, on the balance of probabilities, that in light of this evidence, the attempts (some successful) to access sexually inappropriate websites as set out in the Schedule of Internet Browser Times dated the 14^th April, 2010 were in fact made by the registrant.  The Committee was satisfied on the evidence produced at the hearing that this was the only proper inference to draw.”

 

18. The Committee went on to make a finding of misconduct against the Appellant before going on to consider the appropriate sanction. The Committee was addressed by Ms. Bevin, (the presenting officer for the GSCC) who inviting the Committee to consider the imposition of an Admonishment, which the GSCC regarded as the appropriate sanction to be imposed in the Appellant’s case.

 

19. In the transcript of the hearing the Chairman set out the Committee’s decision on the appropriate sanction for the Appellant namely that he should be suspended for a period of two years.  Included within the Committee’s stated reasons were the following:-

 

“The Committee considered that there were no exceptional circumstances in the case sufficient to justify no sanction at all. 

 

The Committee considered an admonishment, being the least severe sanction available, was not appropriate, primarily the behaviour under consideration was not an isolated incident, but a course of conduct spanning at least three months.

 

The Committee next considered suspension, recognising that this sanction may be used to signal to the social care worker, the profession, and indeed the public that certain behaviour is simply unacceptable.

 

The Committee concluded that the registrant had involved himself over at least a three month in repeated and on occasions, prolonged periods of inappropriate use of his computer.  It is right to note that the GSCC has not been able to establish clearly exactly how much time was spent pursuing this activity but it was plainly excessive and wholly inappropriate. 

 

Throughout the period covered by the allegation the registrant repeatedly sought to access sexually implicit websites and succeeded in viewing on 61 occasions material found at one particular pornographic website and an escort website 101 times.

 

The GSCC has not suggested that any user of social care services was put at risk or that any direct harm was caused by the registrant’s activities.  He must however have not been able to devote proper attention to his workload.  The Committee noted that the registrant asserted in his written submission that his excessive usage of the internet was partly due to his insufficient workload.  However, the Committee did not view this as an acceptable excuse for his conduct.”

 

20. On the 4^th August, 2010 the Appellant appealed to this Tribunal against the decision of the GSCC to suspend him from the register for a period of two years. In setting out the reasons for his appeal the Appellant stated that he believed that the sanction that had been imposed was disproportionate in respect of the matters concerned.  The Appellant stated that he fully admitted using his employer’s internet facility for non-work items but maintained that he had not used the facility to view adult websites.  It was the Appellant’s position that the Conduct Committee had not taken into account his previous exemplary work record and that he was being made an example of to others.

 

21. A response was filed on behalf of the GSCC dated the 2^nd September, 2010.  It was submitted that the Committee’s decision as to sanction was justified and proportionate, given that the misconduct found was serious amounting to inappropriate use of the Appellant’s employer’s computer system.  The Appellant’s actions had been contrary to his employer’s communications policy and had been sexually motivated.

 

22. The Appellant had accessed the internet for varying periods, some very short, but on other occasions for as long as 5 hours and 26 minutes on any one occasion, when he should not have needed to have spent 30 minutes per day accessing the internet for work purposes.  The Committee had been presented with evidence that whilst the Appellant was on leave no access to the internet was made using his unique user name and password.  There was therefore a proper inference to be drawn that the access must have been made by the Appellant so that the accesses or attempted accesses to the sexually explicit material must have been made by the Appellant.

 

23. The conduct of the Appellant in seeking to access sexually explicit websites was not an isolated incident, rather over a three month period it had been persistent and sustained irresponsible misuse. The sanction imposed  of two years suspension was appropriate and proportionate.

 

24. In the proceedings before the GSCC Conduct Committee, two written witness statements were submitted from Mr. Clarke dated the 14^th December, 2009 and the 22^nd July, 2010.  Mr. Clarke also gave oral evidence before both the GSCC Conduct Committee and this Tribunal.  In his oral evidence before this Tribunal Mr. Clarke set out the policy of the Council in relation to electronic communications and stated that on numerous occasions e-mails had been sent out to employees confirming that they were required to abide by the electronic communication policy, a copy of which should have been given to them when they commenced employment. 

 

25. Mr. Clarke also explained how the Websense system, installed by the Council worked. 

 

26. In terms of his investigation of the Appellant, Mr. Clarke stated that he had been given a specific period of time to look at, namely from August to November, 2008 and that two days in every week were selected to look at usage on a random basis, namely Tuesdays and Thursdays.  He then made reference to various schedules that had been produced and which formed part of his investigation, which were said to list all websites accessed using the Appellant’s log in and password, together with a list of websites where access had been attempted but had been blocked during the period in question.  As regards the time spent browsing the internet, Mr. Clarke stated that it was not possible to say how long someone was looking at a particular site, browsed time referred to when an internet site was opened using a particular user name and password.

 

27. Mr. Clarke was asked whether it would have been possible for other people to log on to the internet at the Council using the Appellant’s password and user name.  Mr. Clarke said that it was possible, but the passwords had to be changed every sixty days and any other user would need to be sure that the Appellant was not on the internet at the same time.  If someone else was at the Appellant’s workstation they ran the risk of being discovered.  It was Mr. Clarke’s view that the Appellant was the person who had accessed the internet using his user name and password during the period in question.  It had never been suggested to him by the Appellant that anyone else was using the Appellant’s user name and password, had the Appellant raised this with him then Mr. Clarke stated then he would have made other enquiries.

 

28. Included within the papers before the Tribunal was a statement from Ms. Diane McKinley dated the 17^th March, 2009.  Ms. McKinley submitted a further witness statement dated the 12^th January, 2011 and also gave evidence before the GSCC Conduct Committee and this Tribunal.

 

29. In her evidence to the Conduct Committee, Ms. McKinley stated that she had become the Appellant’s line manager in November, 2008 and that she had understood that he had not had a direct line manager before her since 2007. 

 

30. It was also stated by Ms. McKinley that she had undertaken supervision sessions with the Appellant after her appointment and she was concerned, having looked at his work that he only had about half a days work per day.  Ms. McKinley stated that she would have expected the Appellant, as an experienced social worker, to have come to her to see if there was any other work around.  She herself had arranged for additional work for the Appellant from the Leaving Care Service team. 

 

31. In terms of the Appellant’s workspace, Ms. McKinley stated that the Appellant worked with one other person and they sat opposite each other.  Ms. McKinley went on to state at the Conduct Committee that there was a Council policy that employees could have personal access to the computers at lunch time or before work, but during work time access needed to be work related and it was Ms. McKinley’s view that the Appellant would not have needed for his work to have accessed the internet for more than 30 minutes per day.  She had looked at the internet sites that it was said that the Appellant had accessed and she had indicated which she considered were work related.

 

32. At the Tribunal hearing Ms. McKinley said that she had met with the Appellant and his work colleague in November, 2008/early December 2008 in individual sessions and having looked at the Appellant’s workload concluded that very little work was being done by him.  She had at no stage been approached by the Appellant saying that he had very little work to do.  There had however been no issues with the Appellant other than a lack of work and certainly no issues about the quality of his work.  She believed that the Appellant’s colleagues considered him to be an amiable person.  At no point had she received any complaints about the Appellant from any work colleagues.

 

33. The Appellant submitted a witness statement in these proceedings dated the 17 ^th December, 2010 and he also gave oral evidence. In his witness statement he gave details of the restructuring that had taken place at the Council and his dissatisfaction with the process.  The Appellant stated that he had begun to look at opportunities for self employment and that was why he had used the Council’s computer system for non-work purposes. The sites that he had accessed were mainly to do with personal business loans, property development, financial laws and bankruptcy laws.  He had reached the conclusion that after having been so long without an official post he needed to take decisive action. 

 

34. In terms of the Council’s internet policy, the Appellant stated that he had never been provided with a copy of that policy, although he was now aware that he was only allowed personal usage during lunch breaks.

 

35. The Appellant also stated in his witness statement that he had no criminal convictions and had no complaints had ever been made against him either from service users, colleagues or any other professionals. 

 

36. There had also been no concerns raised about his conduct at work and the allegation of downloading images had only come about as a result of “a training process” and not as a direct complaint.

 

37. As regards Mr. Clarke’s report, the Appellant stated that he disagreed with Mr. Clarke’s evidence that it would be impossible to guess anyone’s internet password.  The Appellant said that he kept a number of personal details in the desk where he worked and that one of these details was his password.  Further the office where he was based was not in a secure state and different people used the office at different times to carry out their own duties or hold meetings.  On occasions the Appellant stated that he had left his office without logging out of the system. The evidence that had been produced to support his alleged excessive use of the computer system was from the IT Department, there were no witnesses who had stated that they had seen the Appellant on the computer for the long hours that it was suggested by the IT Department had taken place.

 

38. The Appellant also disagreed with the suggestion that he had to be the culprit for the attempted access to the adult websites because when he was on leave the activity was said to have ceased, he stated that other people did things for a variety of motivations.

 

39. It was disputed by the Appellant that he had ever spent as much as 5½ hours on the internet in one sitting, although he now agreed that he had gone on to the internet in excess of the usage time allowed, but at the time he had had no knowledge of what time periods were allowed.

 

40. In his oral evidence the Appellant stated that prior to the redeployment carried out by the Council he had greater responsibilities, these were in relation to foster placements for children who were difficult to place.  After the redeployment the work that he was required to do would take him approximately 1 to 2 hours a day and it was very simple work.  He acknowledged that he had gone onto the internet from time to time when he had been looking at job vacancies, financial sites and bankruptcy laws.  He said that he was going on to the internet two or three times a week for about an hour to 90 minutes.  He disputed accessing sites with adult material. 

 

41. As far as anyone else using his user name and password was concerned, the Appellant stated that his password was written on a piece of notepaper in his desk and was a very straightforward password.  It would be easy for someone else to try and discredit him by using his password.  He had never accessed any inappropriate material and he could see no reason why he would want to ruin his own career by doing so.  The Appellant considered that it could be anyone who had a grievance against him who had used his . user name and password, but gave no evidence about potential grievances he thought might be held against him. He did not recall having seen e-mails on the internet usage, but he did accept that he had seen the warning sign which came up on the computer screen itself. 

 

The Law

 

42. Section 56 of the Care Standards Act 2000 requires the Respondent to maintain a register of social workers and Section 59 allows the Respondent to determine the circumstances by which an individual can be sanctioned and removed from the register.

 

43. The relevant rules are the General Social Care Council (Conduct) Rules 2008.  In relation to allegations of misconduct this is described in Rule 2 as follows:-

 

““Misconduct” means conduct which calls into question the suitability of a registrant to remain on the register.”

 

And at Rule 23 (2) it is stated as follows:-

 

“In deciding upon the issue of misconduct, the Committee shall have regard to the Code of Practice issued by the Council under Section 62 of the Act.”

 

44. In relation to sanctions on a finding of misconduct, these are dealt with at Rule 25 with the GSCC’s Conduct Committees powers being set out as follows:-

 

“25 (1) Upon a finding of misconduct, the Committee may –

 

(a)            admonish the registrant and direct that a record of the admonishment be placed on the register as an entry on the register, for a period of up to 5 years; or

(b)            make an order suspending the registrants registration for a period not exceeding 2 years (“a Suspension Order”); or

(c)            make an order for the removal of the registrants registration from the register (“a Removal Order”)

(d)            revoke any interim suspension order imposed by the Preliminary Proceedings Committee

(2) In deciding what sanction is to be imposed, the Committee shall take into account -

 

(a)            the seriousness of the registrant’s misconduct

(b)            the protection of the public

(c)            the public interest in maintaining confidence in social care services; and

(d)            the issue of proportionality”

 

45. Section 68 of the Care Standards Act 2000 provides that an appeal shall lie to this Tribunal against a decision of the Council and that on appeal the Tribunal may confirm the decision or direct that it shall not have effect.

 

Burden and Standard of Proof

 

46. The burden and standard of proof in relation to misconduct rests upon the Respondent in accordance with paragraph 12(1) and (2) of Schedule 2 of the General Social Care Council (Conduct) Rules 2008.

 

Conclusions

 

47. There were two allegations made against the Appellant when he appeared before the GSCC Conduct Committee, namely that between the 31^st July, 2008 to the 1^st December, 2008 he repeatedly used the Sandwell MBC’s computer system to browse websites not required for work purposes, in excess of the limited and responsible personal usage allowed by the Council’s electronic communication policy and secondly repeatedly using Sandwell MBC’s computer system to access, or attempt to access, websites containing sexually explicit material and images.  It was also stated in respect of the second allegation that accessing or attempting to access was contrary to the Sandwell MBC’s electronic communication policy and was sexually motivated.  As a result of these actions on behalf of the Appellant he had committed misconduct.

 

48. Included within the documents produced by Mr. Clarke was an electronic communications policy for the Council which indicated that it had been revised in December, 2004.  Section 4 of that policy deals with the use of the internet and intranet, Clause 4.1 reads as follows:-

 

“We trust you to use the internet sensibly.  Bearing in mind at all times, when visiting the internet site, information identifying your PC may be logged.  Therefore any activity you engage in via the internet may affect Sandwell MBC.”

 

And at paragraph 4.3:-

 

“We recognise the need for individuals to have to carry out some personal tasks during working hours, e.g. for internet banking or online shopping, and this is permitted subject to the same rules as set out for personal email use in item 3.3.4 of this policy.  If these activities require additional software to be installed on to your PC then this will not be permitted.”

 

49. In relation to the downloading of certain items paragraphs 4.5 and 4.5.1 state as follows:-

 

“4.5 The downloading of certain items is strictly forbidden and any employee or user of the internet facility will be subjected to disciplinary action.  These items include;

 

4.5.1.   Any material of a pornographic nature.”

 

50. The Appellant in his evidence was not able to recall whether or not he had received a copy of this policy, however we accept Mr. Clarke’s evidence that numerous e-mails were sent to employees at the Council reminding staff that they had to abide by the electronic communications policy.  Examples of such e-mails were exhibited to Mr. Clarke’s original report.  Also the Appellant when he gave evidence accepted that a warning came up on the screen if a user tried to access a site that was blocked by the Websense software.  We therefore accept on the balance of probabilities that the Appellant knew of his employer’s policy in relation to the use of the internet.

 

51. The investigation carried out by Mr. Clarke covered a four month period from August, 2008 to November, 2008, in particular the usage attributed to the Appellant’s user name and password on Tuesdays and Thursday during that period.  The investigation having been triggered by the Council’s CIT unit who had carried out an exercise using the Websense software to look at the most prolific users of the internet and during that exercise the Appellant’s user name and password was shown as having accessed a large number of internet sites.  We take into account the submission made by the Appellant that there was no evidence that any service user or employee or indeed anyone at all having made any complaints in relation to the Appellant’s internet use. 

 

52. Mr. Clarke provided details of his background and training and acknowledged that he had no formal qualifications in relation to analysing computer data, but he relied on his experience of having carried out a number of similar investigations.  The report produced by Mr. Clarke is based almost entirely on information that has been obtained through the Council’s Security Suite software. The report included schedules showing browsed times in relation to the Appellant’s internet name and password, the access history for the Appellant’s log in code for the 28^th October, 2008, as well as web lists showing websites accessed or attempted to be accessed by the Appellant’s log in code.  The browsed time schedule varies from short periods up to a period of 5 hours and 26 minutes on the 25^th November, 2008.  We accept Ms. McKinley’s evidence that although there were some legitimate reasons why the Appellant might need to access material on the internet, for work purposes that ought not to have exceeded more than 30 minutes on any working day.  We also take account of the Council’s policy that a certain amount of personal usage of the internet was permitted.

 

53. The Appellant himself accepted his usage in the period in question was excessive and was in breach of the Council’s policy to use the internet sensibly. 

 

54. Mr. Clarke accepted that it was not possible by reference to the browse times to ascertain precisely how long a person was looking at the internet, in that the browser time simply indicated the length of time web pages were opened, rather than being actively looked at.  Nevertheless and taking account of the Appellant’s own admission, we consider that on the balance of probabilities the Appellant did use the internet excessively for non work purposes and that this in the context of the Council’s policy on internet usage does constitute misconduct. 

 

55. In respect of the second allegation the Respondent again relies on the evidence of Mr. Clarke which in turn relates back to the information produced by Mr. Clarke from Websense, which is said to show sites accessed or attempted to be accessed by the Appellant’s user name and password, of which a number of such sites were said to be pornographic.  The list attached to Mr. Clarke’s report identified a number of web addresses whose names suggest that they contain adult material.  A number of images from those websites were attached to Mr. Clarke’s report, including a site entitled hotsexyplumpers.com.  It was not disputed by the Appellant that those images were of a pornographic nature and we accept that to be the case.  We also accept, from the information produced by Mr. Clarke that the Appellant’s user name and password were used to access or attempt to access a considerable number of web addresses whose titles suggested that they were of a pornographic nature.

 

56. The Appellant has denied accessing or attempting to access such sites.  He has not denied that the user name and password, against which the material produced by Mr. Clarke has been accessed, was his user name and password.  It has not been suggested by the Appellant at any time that the information produced by Mr. Clarke is in any way inaccurate in terms of access or attempted access to particular websites, although as we have indicated there is an issue in relation to browse times.

 

57.  In giving evidence before the Tribunal the Appellant suggested that someone else could have been using his user name and password and indicated that his password was kept in his office desk drawer. We take into account that the Appellant was not physically seen accessing adult material on the internet at work, also that the burden of proof in terms of establishing misconduct is on the Respondent.  However there is no evidence of anyone having had a grudge against the Appellant having had access to the Appellant’s internet user name and password, and moreover and perhaps most significantly, during the period when the Appellant was on annual leave there was no access to the internet using the Appellant’s user name and password.  Therefore on the balance of probabilities and in the absence of any other plausible explanation, we accept that the Appellant’ used the internet to access adult material and that this was done by him on a regular basis, this behaviour in our view clearly constitutes misconduct. 

 

58. We then turn to the issue of sanctions. In considering what is an appropriate sanction in this case in the context of the General Social Care Council (Conduct) Rules 2008, we have taken into account the Code of Practice for Social Care Workers and the GSCC’s, Indicative Sanctions for Conduct Committees 2008.

 

59. In setting out some general principles regarding sanctions the Indicative Sanctions document includes the following:

 

“In deciding what sanction to impose, the Conduct Committee should apply the principal of proportionality, weighing the interests of user of services and public with those of the registrant. The Committee should consider the options available starting with the least severe and moving to the next, only if satisfied that the sanction is not sufficient to protect users of services and the wider public interest.

 

The General Social Care Council exists to protect the public and to promote the public and to promote high standards of practice. The Conduct Committee should use its powers where necessary to protect the public:

·       By protecting people who use services and colleagues from the risk of harm

·       By safeguarding public trust and confidence in social care services generally

·       By upholding high standards of conduct among social care workers.”

 

60. Later in the same section of the Indicative Sanctions document it is also stated as follows:

 

“The Committee will ensure that any sanction imposed is proportionate, in all the circumstances of the case. This will involve a consideration of:

·       Any mitigating or aggravating features of the misconduct in question

·       The personal circumstances of the registrant and any mitigation advanced

·       Any testimonials and character references adduced in support of the registrant

·       Whether there is any evidence of a pattern or trend in behaviour”

 

61. In relation to the imposition of a period of suspension, the length of such suspension can be for a period not exceeding two years, (section 25 (1) (b) of the General Social Care Council (Conduct) Rules 2008. The Indicative Sanctions document suggests a number of factors which it may be appropriate to take into account when considering a suspension, emphasising that the list is not exhaustive; the list reading as follows:

 

·       “ a serious incident of misconduct where a lesser a sanction is not sufficient

·       behaviour is not fundamentally incompatible with continuing to be a registered social care worker

·       no evidence of harmful deep-seated personality or attitudinal problems

·       no evidence of repetition of behaviour since incident

·       the Committee is satisfied that the care worker has insight and does not pose a significant risk of repeating behaviour

·       The interests of people who use services are sufficiently respected

·       Conduct that impairs suitability but that is not so serious and chronic that removal is required

·       Causing avoidable harm to people who use services

·       Other failure to uphold the principles in the Code of Practice for Social Care Workers

·       Where suspension may stop a pattern of behaviour.”

 

62. The misconduct we have found proven against the Appellant falls into two categories, although both relate to the same facts. Firstly excessive use of the internet, that was in breach of his employers Electronic Communications Policy and the Appellant accepts it was excessive, it occurred largely at a time when the Appellant was employed to carry out work related tasks, hence our finding of misconduct. We do however take into account the circumstances in which the Appellant found himself when this was happening. He had been part of a redeployment exercise carried out by the Council in 2007, which left him in a situation where he was given “at risk” status. Although we were told that he was later designated as a Quality Assurance Officer, it is not clear to us that sufficient consideration was ever given by Council as to what this job entailed or how the Appellant would be managed.

 

63. Ms McKinley’s evidence was that it was her understanding that before she became the Appellant’s line manager in November 2008; the Appellant had been without a line manager since 2007. When she went through the Appellant’s workload it was her view that he only had about half a days work to do per day. The Appellant himself gave evidence that the work he was required to do could be completed within 1 to 2 hours a day.

 

64. Whilst Ms McKinley said that she would have expected someone of the Appellant’s experience and standing to have complained about how little work he had, she also confirmed that there were no issues about the quality of the Appellant’s work. In the context of the Appellant’s situation, whilst not condoning a situation where the Appellant was using the internet excessively for non-work purposes, we do not regard the Appellant’s misconduct in relation purely to the amount of time spent on the internet as being of the most serious.

 

65. We then turn to the second finding of misconduct against the Appellant namely that he accessed or attempted to access (inappropriate) pornographic websites. Mr Clarke in giving evidence to the Committee confirmed that these websites did not contain inappropriate images of children, but that there were a large number of websites that were accessed or attempted to be accessed  that were of a pornographic nature. We regard this behaviour on the part of the Appellant to be serious misconduct for which his lack of appropriate work tasks cannot be considered mitigation.

 

66. We are not able to say that the Appellant has shown insight into his failings in this regard, as he has continued to deny having accessed or attempting such websites and for the same reason has not expressed any regret or offered any apology. Whilst we note the Appellant’s previous good history and that there is no evidence that the Appellant’s behaviour caused direct or indirect harm to service users, we do not consider that this is a case where an admonishment would be appropriate. It is important that high standards of conduct among social care workers should be upheld and an admonishment would not in our view send the correct message to the Appellant, service users, the public and the social care profession.  

 

67. We agree that a period of suspension is the appropriate sanction in this case. In considering the length of such a suspension we take the view that obtaining sexual gratification from repeatedly viewing or attempting to view pornographic websites at work over a significant period of time is serious misconduct and undermines public confidence in the social care profession.

 

68. The Appellant in continuing to deny having behaved in this way means that we are unable to conclude that he has shown insight into his actions, although we would add that there was no evidence before us to suggest that since leaving the Council the Appellant has repeated this behaviour.

 

69. In determining the type and length sanction to be imposed, a range of factors needed to be taken into account, we have already stated that we regard the Appellant’s conduct in respect of the inappropriate websites as serious and that a suspension is necessary to maintain public confidence in social care services, there is however also the issue of public protection. The Conduct Committee noted in its deliberations that no service users were put at risk or any direct harm was caused by the Appellant’s activities. It is not however clear to us that in considering the proportionality of the appropriate sanction that sufficient weight was given to this particular factor. Taking into account all the circumstances of the Appellant’s misconduct, including the interests of service users, the profession and the public, we conclude that the suspension should have been for one year.

 

70. We do not have the power to substitute a different decision for that of the GSCC and accordingly the Appellant succeeds in his appeal.

 

 

 

 

 

 

 

 

 

ORDER

 

71. The decision of the GSCC Conduct Committee dated the 26^th July 2010 is set aside.

 

 

Mr Stewart Hunter

Ms Pat McLoughlin

Mr Graham Harper

Dated  24 March 2011