By Tim Spencer-Lane
In Rachel Meade v Westminster City Council and Social Work England (2200179/2022 and 2211483/2022), a social worker won multiple claims for harassment, on account of beliefs protected in law, against her employer and the regulator.
The claimant, Rachel Meade, is a qualified social worker in adult services, who started working at Westminster City Council in 2001.
Ms Meade described herself as feminist and holding gender critical views, which included the belief that sex is immutable and not to be confused with gender identity.
The complaint to Social Work England
The case focused on Ms Meade’s Facebook account, which had been set to private and included around 40 friends, including some work colleagues.
A social worker, who was a Facebook friend of the claimant, made a complaint to Social Work England about what was alleged to be the claimant’s transphobic comments on her Facebook account.
He also alleged that she had signed petitions published by organisations known to harass the trans community and donated money to causes which seek to erode the right of trans people.
Regulator begins investigation
Social Work England begun an investigation in November 2020. The case examiners focused on 70 posts, which included links to a petition calling for male athletes not to compete in women’s sports, to a petition calling for female only spaces and to a satirical post which stated:
“Boys that identify as girls to go to Girl Guides. Girls that identify as boys to go to Boy Scouts. Men that identify as paedophile go to either.”
Both Social Work England and Westminster contended this post – referred to as the Girl Guides/Boy Scouts post in the judgment – conflated transgenderism with paedophilia.
Social work’s initial response to complaint
In her response to the complaint, Ms Meade acknowledged that she had been “naively unaware that any posts she had shared or liked, any petitions she had signed, or any organisations to whom she had donated, were discriminatory or offensive. She said that she had not fully read or analysed the content some of the articles or links before posting. She acknowledged showing a lack of judgement in her use of social media.”
She also removed the relevant posts and unfriended any organisations or friends that may be seen as being critical towards minority groups. She then attended training on working with gender diverse and trans people.
Social Work England concluded that there was a realistic prospect that Ms Meade’s fitness to practise was impaired, with its case examiners’ report saying she had engaged in a pattern of discriminatory behaviour over an extended period.
However, it said it would not be in the public interest to proceed to a hearing. Instead, the appropriate sanction was a one-year warning.
In particular it was noted there was no evidence that the claimant had acted in a transphobic manner whilst at work. Ms Meade initially agreed to this disposal.
Suspension from work
Westminster was informed of this outcome and suspended her on gross misconduct charges in July 2021, pending an investigation under its disciplinary code.
The suspension was not lifted until nearly a year later following a disciplinary hearing, after which Westminster placed Ms Meade on a 24-month final written warning, with the risk of dismissal for similar further actions.
Ms Meade appealed the decision, saying the sanction was excessive, oppressive and an act of unlawful discrimination, harassment and victimisation.
Request for regulator to reconsider
In the meantime, she had asked the regulator to reconsider its decision. She stated that there was new evidence to refute the allegations made and which demonstrated that she had not acted in a discriminatory manner.
With Ms Meade having rescinded her consent to the accepted disposal, Social Work England was required to remove the warning from her registration record, in January 2022.
It initially said the matter would be referred to a hearing to determine whether her fitness to practise was impaired.
Fitness to practise case ended
However, it later received advice that there was no realistic prospect of a determination of impairment and so applied for the case to be discontinued.
This was agreed, in October 2022, by a fitness to practise panel, which found that the full content of the posts “did not contain slurs, or profane language, did not target individuals and did not incite violence, harassment or other concerning or illegal activities”.
Further, it found that the fact that much of the material in the posts was reposted from mainstream media sources, which it considered undermined the suggestion that they could cause offence or undermine public confidence in the profession.
Written warning removed
A month later, after hearing her appeal against her written warning, Westminster removed this from Ms Meade’s record.
She then issued claims for harassment and direct discrimination against Social Work England and her employer.
The legal framework and relevant case law
Harassment occurs where an individual engages in unwanted conduct relating to a relevant protected characteristic that has the purpose or effect of violating another individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual (section 26 of the Equality Act 2010).
Direct discrimination takes place where a person treats the claimant less favourably because of the protected characteristic than that person treats or would treat others (section 13 of the Equality Act).
In regards to Ms Meade’s claims for harassment and direct discrimination, the relevant protected characteristic was religion and philosophical belief (section 10 of the Equality Act).
In Maya Forstater v CGD Europe and Others (UKEAT/10/20/JOJ), the employment appeal tribunal ruled that the gender critical beliefs held by the appellant in that case fell within section 10 of the Equality Act.
Article 9 of the European Convention on Human Rights (ECHR) provides for the freedom to manifest belief (religious or otherwise) and Article 10 for the right to freedom of expression. However, these rights are qualified and can be subject to restrictions to the extent necessary for the protection of the rights and freedoms of others.
The employment appeal tribunal, in Higgs v Farmor’s School  EAT 89, provided guidance on justifying interference with a person’s rights under Articles 9 and 10, in the context of an employment relationship.
This set out a number of factors to be taken into account:
- the content of the manifestation of their beliefs;
- the tone used;
- the extent of the manifestation;
- the worker’s understanding of the likely audience;
- the extent and intrusion on the rights of others and the consequential impact on the employer’s ability to run its business;
- whether the worker has made clear whether the words expressed are personal or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk;
- 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;
- The nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and
- Whether the limitation imposed on the worker’s rights is the least intrusive measure open to the employer.
Article 17 of the convention sets out that nothing in the ECHR provide any right to engage in any activity or acts which are aimed at the destruction of ECHR rights.
Decision of the employment tribunal
In Ms Meade’s case, the tribunal found that none of the posts could reasonably be regarded as offensive or inciting hatred.
All fell within her protected rights to freedom of thought and expression, under Articles 9 and 10, and none aimed at the destruction of any rights or freedoms, and so were not covered by Article 17.
Whilst some people may be offended, the tribunal noted that freedom of speech does involve the right to cause offence. It also considered it significant that many of the posts did not constitute the claimant articulating her own views, but rather forwarding links to articles or comments on television programmes pertaining to the gender critical debate.
The tribunal also felt that the posts were not outside the reasonable bounds of the legitimate manifestation of the claimant’s beliefs.
For example, it rejected the claim that the Girl Guides/Boy Scouts post had the effect of equating transgenderism with paedophilia. It concluded this constituted “a reasonable satire” and addressed a “legitimate safeguarding concern that some transwomen, retaining male bodies, could exploit their position to have access to young and vulnerable girls”.
Balance between free expression and interests of offended
The tribunal concluded that Social Work England and Westminster had not struck a fair balance between Ms Meade’s right to freedom of expression and the interests of those offended by her Facebook posts.
The tribunal felt it was significant that it was only one person – the fellow social worker who made the complaint to Social Work England – who had been offended, and there was no evidence that Ms Meade’s views were expressed in the context of her professional duties.
The tribunal found that most of her claims for harassment against the two organisations succeeded, and would have amounted to direct discrimination.
Successful claims against employer
In relation to Westminster, it found that the basis for the disciplinary process was Ms Meade’s protected belief. For example, in its investigation, the authority did not identify posts that went beyond a manifestation of Ms Meade’s protected belief and constituted unacceptable conduct.
It concluded that the disciplinary process, which was of significant duration, constituted harassment, on the grounds that the council had taken the view that in the expression of her protected believes, Ms Meade “had behaved in a manner which warranted a suspension and a disciplinary process”.
Successful claims against Social Work England
In relation to Social Work England, the tribunal concluded that its “prolonged investigation” was unwanted, related to Ms Meade’s protected belief and “created an intimidating, hostile and offensive environment for her”. As such, this constituted harassment.
It also found that Ms Meade felt under “significant duress” when she agreed to accept a sanction from Social Work England in July 2021 and feared that if she did not, a fitness to practise hearing would follow, which could lead to a more serious outcome. It concluded that she felt subject to an intimidating and hostile environment, which was also sufficient to constitute harassment.
Whilst the tribunal acknowledged that there are limitations on the right to freedom of speech, and the manifestation of protected beliefs, it did not consider that the threshold was reached in this case.
Social worker’s beliefs ‘considered inherently discriminatory’
The state of mind of both Social Work England and the local authority had been that the beliefs expressed were inherently discriminatory and transphobic and therefore unacceptable.
The approach should have been to accept that the claimant was entitled to her beliefs and the manifestation of them, but that certain posts were unacceptable with the reasons why being clearly and consistently set out. This did not happen.
Focus on wider gender identity debate
At the conclusion of its decision, the tribunal felt it was important to recognise the “high-profile public debate” between those supporting gender self-identification and those with gender critical views, including within and between political parties.
It was described as “self-evident” that there was no settled societal, political or legislative position regarding the rights of those seeking gender self-identification.
The tribunal went on to say that the views of the claimant were “not extreme” but rather “represented her expressing her opinion in an ongoing public debate.”
The fact that the debate was often vociferous, and on occasion toxic, did not mean that the right to freedom of expression in a democratic society should be restricted. The analogy was given of the Brexit debates.
Social worker’s views ‘could not be viewed as transphobic’
The tribunal also disagreed that the claimant’s views were the equivalent to an employee/social worker espousing racially discriminatory or homophobic views.
It stated that the claimant’s opinions could not “sensibly” be viewed as being transphobic, 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”.
In terms of a remedy, the judge invited the parties to resolve this issue between them but if not, a further hearing would take place in February 2024.
Tim Spencer-Lane is a lawyer specialising in social care, mental health and mental capacity law. He is also legal editor of Community Care Inform.
Responses to the judgment
Rachel Meade: “It’s a huge relief to be so completely vindicated after all this time. It has been a horrendous experience. This ruling makes it clear that I was entitled to contribute to the important public debate on sex and gender. I hope it will make it easier for other regulated professionals to speak up without threats to their career and reputation.”
Westminster City Council: “We apologise to Rachel Meade for the way she has been treated and the upset that has been caused. We acknowledge and accept the findings of the tribunal.
“As recent landmark cases have shown and the tribunal noted, the issues and policy making involving gender recognition and rights is a fast-evolving area. We will be carefully studying the points made in the judgement and considering what changes we need to make at Westminster City Council to ensure the best balance we can to support our staff, service users and our partners.”
Social Work England’s chief executive, Colum Conway: “The tribunal made findings in respect of Ms Meade’s claims against Social Work England. Following the judgment, all parties have the opportunity to consider the decision and their options. As such, we do not intend to provide further comment at this time. Any further updates will be published on our website.”