18 NOV 2010
Mr Andrew Ferrier [ 0053749 ], Vale of Glamorgan, CF64
Wednesday 17 November 2010
RICS, Parliament Square, London, UK
Anne Seifert (Lay)
Hugh Kemsley FRICS
The formal charge is:
You failed to act at all times with integrity and avoid any action or situations that were inconsistent with your professional obligations such that your conduct was the subject of criticism by the Employment Tribunal in the case of L Bibby and Andrew Ferrier (case number 1605945/2009) and in which you were found liable for unfair dismissal and harassment Contrary to Rule 3 of the Rules of Conduct for Members 2007.
Findings of Fact
The Panel has had the benefit of representations from Mrs Buckley on behalf of the Institution and from Ms Crasnow, of Counsel, on behalf of Mr Ferrier. We have also had the benefit of hearing from Mr Ferrier.
Mr Ferrier has admitted the charge and the Panel has determined that he is liable to disciplinary action.
The facts which bring Mr Ferrier before this Panel are well-rehearsed in the judgement of the Employment Tribunal which heard a complaint against Mr Ferrier and his then firm made by a former member of staff. At the conclusion of that hearing, the Employment Tribunal found that Mr Ferrier had sexually harassed the former member of staff. The finding was based on several incidents taking place over a lengthy period. Mr Ferrier contested the facts; the hearing took place over two days; the complainant gave evidence and was cross-examined; Mr Ferrier gave evidence; there was a direct clash in regard to all salient points; and the Tribunal found against the evidence of Mr Ferrier in all material respects.
Mr Ferrier has now accepted the Tribunal’s decision and, to his credit, settled the matter out of court without the need for a compensation hearing.
It suffices to say at this stage that each member of this Panel regards the behaviour about which complaint was made as entirely inappropriate. The Panel accepts entirely that Mr Ferrier’s conduct did not have the purpose of causing sexual harassment, but it re-iterates that it occurred over an extended period.
Mr Ferrier has told the Panel that the conduct of this matter before the Tribunal would have been very different if he had been given competent legal advice prior to the Tribunal hearing. Overtures of settlement were rejected. Following the hearing, he instructed new solicitors and their advice was instrumental in finalising the matter by way of settlement.
The Panel believes that there is a limit to the extent to which Mr Ferrier can put blame on his former solicitors. He is a business man of many years experience. He is used, or should be used, to questioning advice and to having advice questioned. At the end of the day, he knew whether or not the allegations were true or not in substance – he now accepts they were – and the Panel has difficulty in understanding how it could have been appropriate to contest the matter in the way that – as is evident from the papers – it was.
Mrs Buckley has advanced this case as a case of gravity because the misconduct took place in the workplace; it amounted to a beach of trust; there was public and judicial criticism; and that the misconduct undermined the Institution and caused damage to the surveying profession.
In Mr Ferrier’s favour, he has admitted the charge in full. He has co-operated fully with the Institution. He has practised as a chartered surveyor since 1979 and has never been the subject of any complaints either in relation to the performance of his profession or otherwise. His misconduct did not amount to deliberate harassment. He has paid compensation to the complainant and has borne a substantial amount of legal costs. He has taken remedial action both as regards his attitude and his business. He has had to endure publicity.
In determining the proper course in this matter, the Panel has had regard to the Institution’s Sanction Policy. The Panel has also considered all the mitigation advanced on Mr Ferrier’s behalf.
It has been represented to the Panel that a caution with suitable undertakings would be an appropriate disposal. The Sanctions Policy contemplates a caution as being suitable in cases where the misconduct is occasioned through inexperience, the breach is minor and is unlikely to recur. The Panel does not believe that this case meets those characteristics. Nor does it believe that the case can be sufficiently dealt with through the imposition of undertakings.
The Panel has considered the suitability of a reprimand or of a fine.
But the fact remains that the Panel is faced with a case of a serious lack of integrity both as regards the initial misconduct and the way in which it was managed. This was indeed conduct in breach of trust and entirely unacceptable in any context, and especially in the workplace. It struck at the Institution’s Core Values (and especially Treating others with respect and Setting a good example). The Panel does not believe the alleged erroneous professional advice he received is a material exoneration of how he then managed the matter. The publicity adhering to the manner in which it was handled exacerbated the exposure of the Institution to criticism.
The Sanctions Policy contemplates expulsion as the appropriate sanction in cases of lack of integrity unless there are extenuating circumstances. The Panel does not believe the matters advanced in Mr Ferrier’s case, nor any others that the Panel can think of, lead it to the conclusion that such extenuating circumstances exist. The Panel has concluded that Mr Ferrier should be expelled from the Institution.
Determination on Publication and Costs
The Panel notes the points made on behalf of Mr Ferrier in regard to publicity, but it is frequently the case that matters coming before it have occasioned publicity and the Panel sees no good reason to distinguish this case.
The decision will be published in Modus (previously RICS Business News), on the Institution’s website and locally in accordance with the Institution’s policy on publication.
The Panel orders that Mr Ferrier pay the costs of the RICS in this case of £4054.50
Mr Ferrier may appeal this decision, which appeal must be lodged within 28 days of today.
Mr Andrew Ferrier has lodged an appeal against the decision of the Disciplinary Panel.