Yet more battles won - how goes the war?

On April 28th the judgment in Rachel Meade's case was published, showing a decisive victory against her regulator and employer for their discrimination against her gender critical views.

History shows that many battles are won and yet the war is still lost. However, in this current war between ideology and reason, a series of very decisive victories for the side of reason and the rule of law allows a reasonable hope that we have come a long way to restore sanity to public life, law and policy.

Alongside the satisfying good kicking delivered to the Open University by the Employment Tribunal in Jo Phoenix’s case, the judgment of 11th January 2024 regarding Rachel Meade sets out in full the appalling behaviour of both Westminster City Council and Social Work England (SWE). The parties were asked to agree remedies. They could not. Therefore on 28th April 2024 Rachel was awarded a total of £58,000 including ‘exemplary’ damages against SWE. This is a very unusual decision by such a tribunal. The remedy judgment is here.

The Times noted

As well has making the damages award, the tribunal recommended that the council act within six months to ensure “that all of its managers and human resources staff receive training on freedom of expression and protected belief”.

It also recommended that Social Work England should within six months “ensure that all its triage staff, investigation staff and case examiners shall receive training on freedom of expression and protected belief”.

So what does this very decisive and pleasing victory mean for the war?

Background

On 15 June 2020, social worker Rachel was reported to her regulator SWE by a ‘friend’, a trans identifying female with particularly robust views about ‘terfs’, and - horrifyingly - a position at Sports England regarding ‘inclusion’. Her malicious allegations about Rachel’s supposed bigotry were simply taken at face value. It was assumed that any manifestation of a ‘gender critical’ belief was inherently offensive and discriminatory, even long after the June 2021 EAT victory of Maya Forstater which declared belief that sex is real and immutable to be ‘worthy of respect in a democratic society’ and protected from discrimination

I represented Rachel at her fitness to practice hearing in October 2022 and you can see the submissions I made about all that on the EBSWA website - including the regulator’s frankly batshit crazy claim that a Gender Recognition Certificate worked the dark magic of changing a person’s biological sex.

Despite the regulator Social Work England not proceeding against Rachel in October 2022, claiming that ‘new evidence’ had emerged, both SWE and her employer still thought it sensible to continue contest this case at the Employment Tribunal in 2023. They didn’t just lose, they lost so badly that the tribunal awarded exemplary damages.

I think its instructive to examine what the January judgement said and then speculate on how on earth this was allowed to happen, in order to inform some conclusions about whether and how quickly we are going to win this war.

The judgment of 11 January 2024

The case was heard in July and November 2023 before Employment Judge Nicolle. The Tribunal found that Rachel succeeded in her claims for harassment against Social Work England and Westminster City Council on account of her protected gender critical belief. As with the Open University, the respondents put forward a large number of witnesses to try and defend their conduct, 13 in total including additional witness statements.

The Tribunal, from para 18 thought it necessary to set out the relevant case law developments pertaining to the protection of gender critical beliefs under the Equality Act - presumably because the respondents had demonstrated how shockingly ignorant or dismissive they were about this protection. It summarises the impact of Forstater helpfully at para 22.

The EAT was unequivocally of the view that Ms Forstater’s belief fell within s10 of the EQA. It did so on the basis that her belief did not get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism that would warrant the application of Article 17 of the European Convention on Human Rights (the ECHR), which concerns prohibition of abuse of rights. The EAT considered that Ms Forstater’s belief that human beings cannot change sex, whilst also protecting the human rights of people who identify as transgender, is not a belief that seeks to destroy the rights of transpersons. Whilst it is a belief that might in some circumstances cause offence to transpersons, the potential for offence cannot be a reason to exclude a belief from protection altogether. Whilst such beliefs may well be profoundly offensive, and even distressing to many others, they are beliefs that are, and must be, tolerated in a pluralist society. This is particularly the case where a belief, or a major tenet of it, appears to be in accordance with the law of the land

The Tribunal noted that Rachel, in April 2021 initially accepted the charge that her posts on Facebook were unacceptable, saying (para 66) that she felt ‘helpless’ and bullied and simply wanted the process to be over. The Tribunal found that she never believed her individual posts were discriminatory and following the Forstater decision in June 2021 she decided to fight back. In July 2021 she was then suspended by her employer, Westminster City Council, along with her managers for failing to report her transphobia.

The judgment is littered with helpful comments. SWE asserted before the Tribunal that there was no evidence that the complainant Aeden Wolton was a trans rights activist - the Tribunal reject this at para 92, noting a failure by the investigators to undertake ‘an appropriately balanced and objective assessment of the complainant’s motivations’. At para 256 the Tribunal comments:

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”

I am very pleased to see at para 142 explicit agreement with my assertion at the time of the Fitness to Practice hearing, that there was no ‘new evidence’ for SWE to rely on as a reason to discontinue the hearing.

The Tribunal assessment of the respondents’ witnesses is damning. Para 145 notes:

We also consider it surprising that virtually all of the witnesses were reluctant to express any opinions, either personally or in the context of the organisation by which they were employed, regarding the status of gender critical beliefs and whether there was discussion and debate on the issue in their organisation. We consider this surprising given the topicality of the issue and consider that there would be a reasonable expectation that those engaged in social work, or the regulation of social workers, would have a heightened level of awareness on what has been a high profile and ongoing public debate.

The Tribunal then discusses the law from para 162. Under s26, EQA, a person harasses the claimant if he or she engages in unwanted conduct related to age, and the conduct has the purpose or effect of (i) violating the claimant’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In deciding whether conduct has such an effect, each of the following must be taken into account: (a) the claimant’s perception; (b) the other circumstances of the case; and (c) whether it is reasonable for the conduct to have that effect. Harassment and direct discrimination claims are mutually exclusive. The claimant must choose one or run alternative claims.

The Tribunal considered the ‘manifestation’ point at para 176 and examined the decision of Higgs v Famor’s School [2023] EAT 89 which provides guidance on the proportionality of any interference with a ‘manifestation’ of a protected belief. This requires a careful balance of context, tone, extent, the likely audience, power imbalances and impact on vulnerable service users or clients. Decisions to restrict manifestation have to be proportionate to the circumstances.

The Tribunal found at para 193 that ALL Rachel’s Facebook posts fell within her protected rights for freedom of thought and freedom to manifest her beliefs under articles 9 and 10 ECHR. NONE of the posts could reasonably be regarded as ‘offensive’, thereby vitiating the protection provided to the Claimant in manifestation of her protected belief. The Respondents did NOT strike a fair balance between Rachel’s rights and the interests of those they perceived may have been offended by her posts.

At para 205

We find that the Respondents’ contemporaneous state of mind was that the beliefs expressed by the Claimant were inherently discriminatory and transphobic and therefore unacceptable. We find that the Respondents’ attempt to draw a line of demarcation between the Claimant’s protected expression of her beliefs, and those posts which fell outside the protection on the basis that they were offensive, to be artificial and inconsistent with the contemporaneous documentation.

The Tribunal were very clear that Rachel had been harassed by the disciplinary process at work. See para 238

We find that the overall disciplinary process, which was of significant duration, constituted harassment. It is undoubtedly the case that the Claimant subjectively perceived the overall process to constitute harassment and we consider that objectively she was entitled to perceive the process in this light. The overall effect of the disciplinary process was clearly more than minor or trivial. Further, we consider that the element of harassment was exacerbated by pejorative comments made by Ms Farrell which went to the core of the Claimant’s beliefs. For example, her labelling the Claimant’s Facebook posts as being transphobic was clearly something the Claimant found deeply offensive and in itself would be sufficient, in our opinion, to constitute harassment

The overall duration of her suspension from 22 July 2021 to 12 July 2022 was ‘wholly excessive’, disproportionate and unnecessary. The Tribunal accepted that Rachel felt ostracised and stigmatised. The suggestion that Rachel might pose a threat to vulnerable clients was an act of harassment that caused genuine upset.

With regard to the behaviour of SWE, the Tribunal found at para 262 that its treatment of Rachel created an ‘intimidating, hostile and offensive’ environment for her. She felt powerless and uncomfortable.

At para 272 the Tribunal make some ‘overarching observations’ regarding both Respondents. They are very serious.

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.

Para 279 explicitly calls out Stonewall

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.

The parties were then invited to agree a remedy. They could not. The Tribunal therefore awarded Rachel a total of £58,000 including exemplary damages. Neither side have been able to apologise for what they have done.

Commentary

Since about 2018, over £4 million pounds has been raised in crowdfunders to fight unlawful decisions to sack people or deny them goods and services for their ‘inherently’ bigoted gender critical views. The majority achieved decisive victory And yet the cases keep coming. Even after humiliating defeat there seems little ability to recognise the harmful reputational and financial impact of clinging to false belief.

How on earth did this case ever go to a contested Tribunal hearing, after SWE rolled over and offered no evidence in the earlier Fitness to Practice hearing? It seems that its acceptance then that it couldn’t win was not based on any kind of sensible understanding of the law and its application. I would love to know who exactly advised both SWE and Westminster City Council that they had a hope of victory. Or why, if assured that defeat was certain, they ploughed on in any event, at huge cost to the public purse.

That the tribunal commented on the need for revised training for SWE and Westminster City Council is significant, but whether it will be embraced and how enthusiastically remains to be seen.

The difficulties with claiming a victory in the War overall is that those leading their troops to such comprehensive and humiliating defeat are not merely the activist groups such as Stonewall, but those who should definitely know better; those who claim a legal qualifications and specialisms in this field. Trans identifying male barrister Robin White represented SWE in the Fitness to Practice tribunal. I asked him for an explicit withdrawal of SWE’s assertion that a GRC ‘changed’ someone’s biological sex. It was not forthcoming. This was the same Robin White who during a previous remote conference on EDI issues for students, proclaimed that those who thought there was a tension between women’s rights and trans rights were ‘completely mad’.

White and some other lawyers seem incapable of analysis of what is acceptable ‘manifestation’ of a protected gender critical belief, holding fast to the now entirely discredited view that the belief itself is akin to racism and while it may be ‘held’ it may never be ‘manifested’. It is my very firm view that they have allowed their abilities in legal analysis to be disabled by their ideological commitments and they have done considerable damage.

I think we have already won the war. The Cass Review was another very welcome corrective. But the problem runs deeper than that while there remain those with legal qualifications, who appear quite unable to read and digest decisions of the Employment Tribunal and who thus lead their clients on to certain and humiliating defeat.

Unlike elderly Japanese soldiers hiding in forests for decades after the Second World War, these refuseniks continue to operate in plan sight, with apparent credibility. We may be in the bizarre and harmful situation that although the War is over, the battles will continue, until hit after hit to both finances and reputations convince even the most hardline that it’s time to admit defeat. What damage will be done in the meantime to individuals, institutions and the rule of law, is troubling to contemplate.

But I hope the social work profession at least will take on board quickly all the ‘lessons to be learned’. The Evidence Based Social Work Alliance is here to help - please support them. Of all the professions, the continuing capture of social work has particularly serious consequences for vulnerable children.

Now we have won the war, it is time to rebuild. If there are those who want to remain hiding in the undergrowth, fighting a war that they lost decades ago, that will be their choice to make. So long as they stay away from law and policy decisions, I will leave them to it. We all have a right to make unwise choices, just not at public expense.