Unlawful discrimination against a social worker

Social Work England and Westminster City Council chose to learn the hard way about what it means to discriminate against and harass an individual social worker for her protected belief.

Way back in June 2020 a social worker Racheal Mead, had a private Facebook account, with about 40 friends. She used it to post newspaper articles and some cartoons about her ‘gender critical belief’ - concerns that men were being allowed access to women’s sports, prisons and other spaces. One of her Facebook ‘friends’, a trans identifying female, decided that she was ‘disgusted’ by the ‘abhorrent’ and ‘offensive’ posts, even ‘frightened’. Some of the posts were at least two years old, so it took a long time to build up the courage.

You can see examples of the hateful filth Ms Meade chose to publish at my Substack post here, from 18 October 2022, where I wrote about my experiences representing Ms Meade at a Fitness to Practice hearing. Social Work England decided at that hearing, on the basis of ‘new information’ - i.e. information that had been in their possession for 2 years but they hadn’t bothered to investigate properly or at all - they would not proceed with pressing for any sanctions against Ms Mead. One can only assume they had finally woken up to the embarrassment that would follow in attempting to sanction a social worker for sharing articles published in mainstream newspapers. Or the hilarious prospect of trying to justify their stated belief that, for e.g. a Gender Recognition Certificate acted to change a person’s biological sex.

I commented at the time

What does matter, very much, is that the regulator for the social work profession decided to take over 2 years to investigate a social worker for what - I now assume they concede - was the lawful exercise of her protected political speech and manifestation of her protected belief. It is instructive to note that the SW received particular criticism for her concern about the operation of the charity Mermaids - concerns now echoed in the Houses of Parliament and calls for a police investigation.

Social workers have an extremely important role in our society; they are obliged to safeguard vulnerable adults and children. To tell them that any individual, organisation or political ideology is exempt from criticism - and what is worse, that you will risk your job and your professional reputation if you dare - places a wholly unacceptable fetter on a social worker’s safeguarding obligations, a foundation of the profession.

Despite SWE rolling over, Ms Meade remained suspended from work and still under a cloud of accusation as a hateful, transphobic person. So Ms Mead took Social Work England and her employer Westminster City Council to an employment tribunal in July 2023 and we have today, January 9th 2024 received the judgment . It is fair to say it was worth waiting for.

Her solicitors summarised the findings in a press release, calling for apologies and urgent ‘root and branch reform’. Ms Meade succeeded in the majority of her claims relating to discrimination and harassment.

All of the Claimant’s Facebook posts and other communications fell within her protected rights for freedom of thought and freedom to manifest her beliefs as protected under Articles 9 and 10.”

“We do not consider that any of her manifestations of her beliefs were of a nature that they aimed at the destruction of any of the rights and freedoms of others contrary to Article 17.”

“In particular we do not consider that the Respondents struck a fair balance between the Claimant’s right to freedom of expression and the interests of those who they perceived may be offended by her Facebook posts”.

“The continuation of the disciplinary process from 6 November 2021 onwards constituted harassment of the Claimant, given that the overarching view taken by the First Respondent and its representatives, was that the Claimant, in the expression of her gender critical beliefs, had behaved in a manner which warranted a suspension and a disciplinary process.”

“Context is important and merely accepting at face value a complainant’s subjective perception of offence is not the appropriate test, but rather that an objective evaluation should be undertaken.”

From para 18 the Tribunal helpfully considered the developing case law about the protection of ‘gender critical belief’ pursuant to section 10 of the Equality Act 2010, noting the similarities between this case and that of Maya Forstater. From para 54 the Tribunal gave examples of the material posted by Ms Meade which was deemed ‘offensive’.

Manifestation of belief

It is the expression of protected belief that seems to be causing so many so much trouble. Those unhappy with the current trajectory of the law, continue to assert that Forstater and Bailey may have found horrid ‘terf’ belief protected, but you were still not allowed to ‘express’ such a belief - i.e. talk about it or write about it at all. This is of course, a nonsense. A belief that you cannot manifest is worthless.

At para 178 the tribunal consider paragraph 94 of the judgment of the EAT in Higgs v Farmor’s School [2023] EAT 89

First, the foundational nature of the rights must be recognised: the freedom to manifest belief, (religious or otherwise) and to express views relating to that belief are essential rights in a democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend.

Second, those rights are, however, qualified. The manifestation of belief, and free expression, will be protected but not where the law permits the limitation or restriction of such manifestation or expression to the extent necessary for the protection of the rights and freedoms of others. Where such limitational restriction is objectively justified given the manner of the manifestation or expression, that is not, properly understood, action taken because of, or relating to, the exercise of the rights in question but is by reason of the objectionable manner of the manifestation or expression.

What I think is confusing some, is their probably quite genuine belief that they have a fundamental right to be protected against feeling upset or offended. This belief is not surprising, as it has been promoted as a reality since at least 2014 by organisations and individuals who really ought to know better. But it is not real. Any limitation on freedom of speech is a serious thing, and it must be proportionate. The Tribunal set out at para 179 a list of useful questions to ask as a cross check as to the proportionality of any proposed restriction.

The content of the manifestation; (ii) The tone used; (iii) The extent of the manifestation; (iv) The worker’s understanding of the likely audience; (v) The extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business; (vi) Whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk; (vii) Whether there is a potential power imbalance given the nature of the worker’s positional role and that of those who rights are intruded upon; (viii) The nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and (ix) Whether the limitation imposed is the least intrusive measure open to the employer

The Tribunal were clear that none of Ms Meade’s Facebook posts were an unacceptable manifestation of her protected belief.

195. We do not consider that any of the posts can reasonably be regarded as offensive thereby vitiating the protection provided to the Claimant in the manifestation of her protected belief. Whilst some people may have been offended by them, that is not the same as saying that the Claimant’s right to freedom of speech was lost. Freedom of speech inevitably will involve the right, to on occasion, cause offence to some people but it is clear that that does not preclude an individual’s ability to express such views.

It was also apparent that the only person who was apparently offended was the trans identifying female former friend who complained. And no one had been bothered or indeed thought it necessary to investigate this person and their motivations. The Tribunal stated at para 252

The Second Respondent’s failure to check if Mr Woolton’s complaint could be malicious, and not checking his previous social media history, is indicative of a lack of rigour in the investigation, and an apparent willingness to accept a complaint from one side of the gender self-identification/gender critical debate without appropriate objective balance of the potential validity of different views in what is a highly polarised debate. For example, Mr Woolton had described Standing for Women as a known “hate group” and referred to feminists arguing for gender critical views as “terfs”.

Further, allowing the subjective belief of one party to determine where the benchmark for offence should be taken ‘involves a potential abdication of responsibility for assessing whether a social worker has breached applicable guidelines’.

This is a wholly satisfying and clear judgment. I note para 270

In reaching our conclusions we consider it to be self-evident from the contemporaneous documentation, chronology and other evidence that the Respondents considered that the Claimant’s gender critical views were unacceptable, and did not constitute beliefs that she was entitled to manifest whether in the workplace, in respect of which there is no evidence that that she did, or in a personal capacity. We consider that the Respondents very belated acceptance that the Claimant’s gender critical views were protected beliefs, and beliefs she was entitled to manifest, but not in a way which caused an inappropriate level of offence, represented an attempt to circumvent the EAT’s judgment in Forstater

It is particularly satisfying to see Stonewall called out at para 174

We consider it wholly inappropriate that an individual such as the Claimant espousing one side of the debate should be labelled discriminatory, transphobic and to pose a potential risk to vulnerable service users. That in effect equates her views as being equivalent to an employee/social worker espousing racially discriminatory or homophobic views. The opinions expressed by the Claimant could not sensibly be viewed as being transphobic when properly considered in their full context from an objective perspective, but rather her expressing an opinion contrary to the interpretation of legislation, or perhaps more accurately the amendment to existing legislation, advocated for by trans lobbying groups to include, but not limited to, Stonewall.

There will be a remedies hearing in February to determine how much money Ms Meade should get in compensation. Awards in the Employment Tribunal are not huge, but I suspect even a six figure sum would not be adequate compensation for the now almost four years of harassment and discrimination that Ms Meade has faced, for the simple manifestation of her protected belief.

Many organisations seem strangely resistant to facing up to reality; I hope this judgment can help them inch towards acting lawfully. We cannot as a society afford to continue like this. It is embarrassing, expensive, time wasting and takes a terrible toll on those individuals brave enough to stand up to self righteous and witless bullies who believe themselves on the ‘right side of history’.