How far can poor management amount to misconduct in regulatory proceedings? Increasingly, regulators are faced with referrals from employers because it is alleged that the registrant is responsible for management failings amounting to misconduct.

How far removed from the coalface must a manager be in order to absolve himself from the shortcomings of his subordinates? Indeed, is any distance far enough if his supervision is wholly inadequate? Does that failing, of itself, make the manager unfit to follow his profession thereafter or require an interim suspension order while his conduct is investigated? On the one hand, it appears to be an unattractive proposition that a manager several grades removed from the mischief should be held to account; but it is, perhaps, even less attractive that those who are badly managed and unsupported are left to face the consequences whilst their superiors walk away unscathed.

There is, unfortunately, a dearth of authority and a decision of the Administrative Court would be welcomed. In the meantime, regulators could do worse than rely on dicta from the First Tier Tribunal in Sonia West v General Social Care Council [2009] 1614.SW-SUS.

Sonia West, a social worker, successfully appealed against a decision of the Preliminary Proceedings Committee of the General Social Care Council to impose an interim suspension order for a period of six months. The appeal was determined on procedural grounds, but the Tribunal went on to consider the substantive grounds for the interim suspension order. The registrant claimed the issues raised were purely managerial, that she had gone to her managers with matters she felt she could not resolve on her own, for example, with respect to staffing. She explained the restructuring and changes that had taken place in recent years: two social workers left and all the referrals were coming to her team; she had no extra staff despite the workload referrals increasing. She was coping, in effect, with an increased workload and reduced staff. The registrant acknowledged that the head of social care and her line manager had tried to help but that the stress of the situation was building up and that she became unwell because of stress. She said she was referred to occupational health the day she went sick but the referral took six months to take place. She was trying to oversee everything and while she tried to delegate she was under considerable stress and aware that other staff had a heavy load work on them. By the time she was ready to come back to work there was an investigation into her conduct as a manager and she was placed on garden leave until the disciplinary hearing which she attended without representation.

The registrant worked as a social worker for 14 years, had a blameless employment record and no previous disciplinary proceedings. A reference from a consultant psychiatrist said that she did not have any concerns regarding the registrant’s abilities as a social worker. The employer’s disciplinary hearing found four allegations proved: that her standard of work as a senior social worker was seriously below that required by her manager and the GSCC; she failed to record whether a number of cases for which she had managerial responsibility were concluded and closed; she failed to follow instructions from her line manager to complete initial and core assessments despite being given reasonable timescales; she failed to use the systems and processes in place to record casework and in doing so failed to safeguard vulnerable adults.

The employer’s findings concluded that this would normally warrant a penalty of dismissal but it would be acceptable to demote the registrant from her current role as team manager. The registrant was offered an alternative position as a social worker, declined and was dismissed. It is perhaps not surprising therefore that the Tribunal felt this indicated that the employers did not regard the registrant as a risk to the public and it was in order for her to continue in practice as a social worker. In fact, the letter from the employer confirmed that they had no concerns about her practice as a social worker.

Of course, the Tribunal made no findings of facts (and it has to be remembered that this was an appeal against an interim order only) but the case may well be regarded as a clear indicator of the way this Tribunal will treat pure management failings when professional competence is not established or called into question.