Monday, 23 September 2019

Complaint 6: A discriminatory hearing process


From the minute I set foot in the hearing room, this has been an issue for me.


Don’t think for one minute I’m an inflexible feminist: I simply believe in equality.

Apart from the brief appearance of the two hostile witnesses and a clerk on the second day, I was the sole female at the hearing.

Now given our profession is predominantly female in its composition (approximately 85 per cent) and the SSSC is around 75 per cent female, you would think there would always be some female representation in that mix of pursuer and panel.

Questions to get more information from the SSSC on its panel composition were ruled vexatious and equality organisations, women’s rights groups and even feminist campaigners though sympathetic were not keen on becoming involved.

It was only when the Ombudsman ruled that my complaints were not within her jurisdiction that this took another twist. She suggested the gender balance was an issue that could, perhaps, be directed to an elected representative.

My MSP, Willie Rennie, the leader of the Scottish Lib Dems, did raise it with Maree Todd MSP, Minister for Children and Young People.

Ms Todd was considerably more forthcoming than the SSSC on the panel selection process, pointing out that “there are a number of factors that are taken into account”.

These, she explained, included expertise in the registrant’s area of work, gender balance, conflict of interest etc. Even taking all of these into account, Ms Todd pointed it that it could still be possible to have a same-sex quartet.

That’s fair enough. I fully understand that. It is reasonable and it is fair. However, it actually strengthens the relevance of my asking how often this actually happens? Why is that information so difficult to obtain?

That’s one issue, and while accepting Ms Todd’s explanation it prompted me to get in touch with her for some further clarification.

If there is all this in-depth discussion on ensuring a balance, where possible, on panel and pursuer, then was she endorsing the decision taken that it was deemed appropriate for a male quartet to consider presenting as a parallel to a female’s case that of pages and pages of medical detail on vaginal examinations.

Is the Minister at our Scottish Parliament who represents our profession condoning this? Would she consider it professionally sound? Would she back its use in a case against a male worker?

Ms Todd opened the door to more questions that I hadn’t thought of. I was subsequently referred the the chief social work adviser, Iona Colvin... who referred me to the SSSC.

As for the SSSC response to this part of my complaint? Chief executive Lorraine Gray’s comments are, again, given at the end. It is, once more, a referral to the sheriff court if I'm not happy with the SSSC processes.


Complaint 6: A discriminatory hearing process

The SSSC has commendable material on its website regarding equality and diversity issues.

Considerable resource is given to ensuring equality is a priority in all the SSSC stands for and promotes. I would assume that the values expressed in the 2013 Equality Report ‘Valuing Diversity, Improving Opportunity’ this statement remains valid:

The SSSC is wholly committed to ensuring that equalities are central to everything we do, as required by the new legislation. This is not just a legal obligation, but it also makes good sense. If we as an organisation meet the diverse needs of our stakeholders, we will carry out our work more effectively. It also helps us draw on a broader range of talent and ideas. This is likely to result in better informed decision-making and policy development and more efficient and effective services.

According to the SSSC’s own data contained within its ‘2017 detailed workforce information’, approximately 84 per cent of all staff employed within the country’s social services are female.
Reports, dating back to 2008, analysing just under 200,000 personnel employed within Scottish social services, also provide a breakdown of sectors, age and ethnicity.

The SSSC Equality Mainstreaming Report 2015 also provides a detailed breakdown of those on the SSSC payroll. This shows 77.29 per cent of staff are female. The female/male breakdowns are also provided in areas such as ethnicity, disability, stress, training, mentoring and pay gap, as well as the composition of the council.

While that five-year-old pledge on diversity is well promoted on the SSSC website through this statistical analysis, it did not apply to my hearing nor was the statistical weight of gender taken into consideration, especially in the composition of the panel.

Other than the two hostile witnesses called on the first day of my hearing, and the clerk on the second, I was the sole female in that room.

An FOI request submitted by my husband which stated: “What is the official policy of the Social Services Council on gender balance of case holder, chairman, panel and a worker at a Fitness to Practise Hearing?” was deemed to be vexatious.

However, the General Medical Council, Health and Care Professions Council, Northern Ireland Social Care Council and Social Care Wales all did respond to that question.
The general policy is, perhaps, best encapsulated by Social Care Wales, which stated:

We do not have a formal policy on this however, there is a pool of lay and social care members who are randomly selected to form a panel for an individual hearing. Each panel has three members; a lay member, a social care member and a lay chair. We endeavour to avoid an all-male or all female panel where possible.

The SSSC policy, given its publicly-declared commitment to equality and diversity. is harder to establish.

FOI requests to determine the composition of panels at hearings over the past 10 years, five years, 12 months and six months, were all deemed vexatious by the SSSC, though chief executive Lorraine Gray, when later challenged, after endorsing that decision to the Council did, on December 6, 2018, personally respond thus:

It is not a requirement for people applying to sit on our Fitness to Practise Committee to specify their gender before they are appointed. We do not therefore hold the information requested in a manner which can be released as part of a Freedom of Information request.

This, I would contend, is an admission from the chief executive that the SSSC is in serious breach of national guidelines.

The SSSC is one of Scotland’s listed public authorities and, as such, has a legal duty to consider equality, including gender specifically, in the development of policy and practice. This duty should, therefore, extend to considering gender in the panel appointment process, and the need for gender representation on panels which make decisions about people’s employment.

I would argue that to dispel any concerns over a discriminatory hearing process within the SSSC these questions are, in fact, vital. While it is commendable that the SSSC views the gender of all its panel members as irrelevant, that does not mean they are gender-neutral or non-binary. Without monitoring and public accountability the perception of cisnormativity will be applied.

Therefore my concern was that the panel structure did not represent the statistical structure of the profession. The fact that the SSSC cannot provide the ‘traditional’ gender breakdown of its panels over the last 10 years, or even one year or six months, contradicts the openness the SSSC advertises on gender balance in the profession and its own staff.

What makes this particularly relevant to my case, and without the given information, perhaps to all cases, is the use of certain documents presented to what I perceived as an all-male panel by a male case holder.

These pertained to precedents (their use and relevance are challenged later within this document).

I was astonished that this all-male quartet accepted and considered the 118-point, 28-page case between the Council for Healthcare Regulatory Excellence and (1) Nursing and Midwifery Council, (2) Paula Grant, of February 11, 2011.

Again through a ‘vexatious’ ruling, I have been unable through FOI requests to determine as to whether this case has been cited regularly by the SSSC – it focuses on alleged professional misconduct through the refusal to perform vaginal examinations.

The SSSC provided the all-male panel with the full report of that hearing, including medical details on the vaginal examination, meconium staining etc. (This was in addition to allegations of bullying, intimidation, contribution to a stillborn, and threatening funeral arrangements).

While, as said above, I challenge the relevance of these to my case, I am embarrassed, distressed and humiliated that these details were presented as a parallel to my conduct as a service manager - no child’s life has ever been put at risk by my actions in my entire career.

Yet, these details were accepted by the panel and its chair, who was legally qualified. The panel stated in its summation that I was not bullied as both the “credible witnesses” had denied this, but the panel members also failed to see aspects of sexual harassment in the use of this case to establish precedent.

This was a graphic and degrading experience, initiated and endorsed by an SSSC male case holder and accepted without question by SSSC-appointed all-male panel.

In 2018 when equality should be a priority in all walks of life, I firmly believe the SSSC needs to re-examine the openness on its gender balance at hearings and the tactics employed when these are single sex dominated.

Perhaps in every other hearing they have a male/female balance, but that raises the question why, when the SSSC had decided to find persuasive precedent through a case involving vaginal examinations, it was not even considered appropriate to have a female panel member, or, indeed, a female case holder presenting that persuasive precedent in my case?

Given the percentage of females employed within the social services profession, registrants and the public have a right to know the percentage of cases where a female worker has had her career decided by an all-male cohort.

The SSSC also advises that panels are chaired by a person with a legal qualification and also consist of a layperson and another who practised social work in a role similar to that of the worker under investigation. For removal of doubt, the chair reminded me that he was a legal professional and I had no legal understanding at every possible opportunity and while patronising, I was clear on that point. However, I am utterly and completely baffled as to who was the social work qualified member. One man said nothing other than ‘I have no questions’ and the other said very little. Perhaps they were more “engaged in the process” in camera?

Response from Lorraine Gray, chief executive SSSC

Under this heading, you raise complaints about the constitution of the Panel, based on gender; with the implication discrimination may have occurred. In effect, this is a challenge to the objectivity of the decision makers. The constitution of our Panels is governed by our Rules. There is a statutory appeal right to the Sheriff Court.

As with a number of the previous parts of your complaint, the issues you have raised under this part of the complaint do not fall within our Complaints Handling Procedure and you should consider appealing the decision to the Sheriff Court.

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