A council found by an employment tribunal to have racially discriminated against a social worker has lodged a second challenge to the decision after losing its initial appeal.

Leicester City Council has sought permission to appeal to the Court of Appeal after the Employment Appeal Tribunal (EAT) last month rejected its challenge against a ruling that it had discriminated against Bindu Parmar.

In January 2023, an employment tribunal ruled that Parmar, who is of Indian origin, had been racially discriminated against in relation to a disciplinary investigation the authority took against her in January 2021, when it also temporarily suspended her from her head of service role.

This was triggered by a complaint against Parmar by a manager within another service. This included claims that Parmar had victimised an agency worker, who then reported to the other manager, including by suggesting his decision making would be subject to additional oversight.

‘Nothing of substance’ to disciplinary investigation

Though the investigation against Parmar was initiated by her line manager, director of adult social care and safeguarding Ruth Lake, it was subsequently transferred to another director, who found, in May 2021 that Parmar had no case to answer.

The tribunal judged that there was “nothing of substance to start a disciplinary investigation” against Parmar. It said that Lake would have been aware of this “because the wording of the allegations calling Mrs Parmar to an investigation did not set out any identifiable acts of misconduct”.

Also, the agency worker Parmar was accused of victimising was not interviewed as part of the investigation despite his alleged victimisation being the trigger for it.

No action taken against white staff in comparable circumstances

Furthermore, the tribunal found that, in a number of comparable situations, Lake, did not take disciplinary action against white staff. These included:

• Another head of service admitting that she had behaved inappropriately by swearing audibly in an open-plan office at the end of a phone conversation with Lake. Lake subsequently discussed this informally with the head of service and took no further action.
• The same head of service triggering a collective grievance by team leaders in Parmar’s locality west service, by sending an email late on a Friday afternoon saying that her service would be redirecting work to locality west the following week, without her having the authority to do this. No disciplinary action against the head of service resulted from this.
• A team leader accusing a senior social work practitioner of publicly humiliating them in a training session, and in return being told that the tone of her email was unacceptable. Lake decided mediation between the two was the best course of action.

At the time of the tribunal, the only other member of staff of a comparable grade to Parmar whom Lake had taken disciplinary action against was also of Asian origin

Reversing the burden of proof

From these facts, an inference could be drawn that the council had discriminated against Parmar, the tribunal found.

As a result, as provided for by section 136 of the Equality Act 2010, it transferred the burden of proof from the claimant (Parmar) to the respondent (Leicester). This meant the council was required to prove on the balance of probabilities that it had not discriminated against her, which the tribunal concluded it had failed to do in relation to:

• Transferring Parmar from her role as head of service and starting a disciplinary investigation against her in January 2021.
• Causing her to attend two disciplinary meetings only to be told that she had no case to answer.
• Not considering lesser or more proportionate means of addressing alleged work or conduct issues concerning Parmar.

11 grounds of appeal dismissed

In its appeal to the EAT, the council lodged 11 grounds in relation to which it claimed that the tribunal had been wrong to have reversed the burden of proof and found that it had discriminated against Parmar.

This included that the tribunal had wrongly reversed the burden of proof based on a “mere difference” in the way the council had treated Parmar and other, white, staff, respectively.

However, in its judgment last month, the EAT rejected all 11 grounds.

In relation to ground 2, the EAT concluded: “A number of employees of different race to the claimant have not been subject of formal disciplinary proceedings in circumstances similar to those in which the claimant was.

“The similarity of the circumstances, and the fact that a number of employees of different race have been treated more favourably, obviously establishes more than a mere difference of treatment and status.

“If what the employment tribunal found is not evidence that could support a claim of race discrimination it is hard to imagine what is.”

Council ‘disappointed by judgment’

Directly following the judgment, a Leicester City Council spokesperson said: “We are very disappointed and do not agree with the judgment in this case. We are therefore considering an appeal.  In view of this, it would not be appropriate for us to comment further at this time.”

It has now lodged that appeal with the Court of Appeal, which will now decide whether to grant the authority permission to have its case heard.

Parmar worked for Leicestershire County Council from 1989-97, joining Leicester when it took over responsibility for social services in the city from the county authority in 1997 and then working there until 2022, when she was dismissed. She is bringing a claim of unfair dismissal against the authority, which is expected to be heard later this year.

‘It feels like they don’t want to change’

Bindu Parmar

“This has been a very difficult time for both me and my family,” she said. “I loved my job, and I had dedicated a significant portion of my life to the council.

“In return, I was subjected to an investigation that was dragged on and on, despite no evidence to suggest my behaviour had been inappropriate or that I had behaved negatively towards my colleagues.

“At no point were the actions of my line manager called into question, and no wider internal investigation took place to respond to my own allegations of racial discrimination.

“Even after an employment tribunal ruled in my favour, Leicester City Council put every effort into appealing the decision.”

She added: “It just feels like they don’t want to change and don’t want to learn any lessons.”

Social Work England carried out a “serious abuse of its power as a regulatory body” in allowing its fitness to practise (FTP) processes to be “subverted to punish and suppress” a practitioner’s protected gender critical beliefs.

That was the damning verdict of an employment tribunal in a judgment issued this week.

The ruling was to determine remedies to compensate social worker Rachel Meade for the harassment she received at the hands of both the regulator and her employer, Westminster City Council, through disciplinary and FTP processes related to her beliefs.

The tribunal ordered the two organisations to jointly pay Meade £40,000 for injury to her feelings, as well as £5,000 in aggravated damages, which are imposed when an act of discrimination has been carried out in a “high-handed, malicious, insulting or oppressive” way, it said.

Exemplary damages imposed on regulator

However, it then took the rare step of imposing exemplary damages of £5,000 on Social Work England. These are designed to “punish conduct that is oppressive, arbitrary or unconstitutional” and are “reserved for the most serious abuses of governmental power”, said the tribunal.

The panel of one judge and two lay members said that in its FTP process, Social Work England had taken “a pre-ordained view” that Meade’s beliefs were “unacceptable” and an “an institutional view to favour one side of the debate” on gender – that which supported gender self-identification.

In response, the regulator said it took the ruling “extremely seriously” and had “already started implementing [its] learning from this case”.

Facebook posts

The case concerned 70 posts that Meade made on her private Facebook account that prompted a complaint to the regulator from a fellow social worker.

They 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 original judgment – conflated transgenderism with paedophilia.

Fitness to practise and disciplinary cases

Following an investigation, Social Work England found there was a realistic prospect that 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.

It then agreed with her that she should receive a one-year warning, though Meade later rescinded her consent to this, meaning the warning was removed.

The regulator later received advice that there was no realistic prospect of a determination of impairment and so applied for Meade’s case to be discontinued. This was then agreed by an FTP panel.

Following Social Work England’s original decision, Westminster suspended Meade on gross misconduct charges in July 2021, pending an investigation under its disciplinary code.

The suspension was not lifted until nearly a year later, and, in the meantime, she received a letter from her employer suggesting that she may pose a risk to vulnerable clients if she returned to work. After she did return, following a disciplinary hearing, Westminster placed Meade on a 24-month final written warning, with the risk of dismissal for similar further actions.

However, after Social Work England ended its fitness to practise case, Westminster removed the written warning from her record.

What the tribunal ruled

In its original judgment, tribunal found that none of the posts could reasonably be regarded as offensive or inciting hatred. All fell within Meade’s protected rights to freedom of thought and expression, under Articles 9 and 10 of the European Convention on Human Rights.

For example, it said the Girl Guides/Boy Scouts 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”.

The tribunal concluded that Westminster’s disciplinary process constituted harassment, on the grounds that the council had taken the view that in the expression of her protected gender critical beliefs, Meade “had behaved in a manner which warranted a suspension and a disciplinary process”.

In relation to Social Work England, the tribunal concluded that its “prolonged investigation” related to Meade’s protected beliefs and “created an intimidating, hostile and offensive environment for her” and, as such, constituted harassment.

Aggravated damages

In its remedy judgment, the tribunal said £40,000 was an appropriate sum for the two organisations to pay Meade in compensation for the injury she had suffered.

In imposing aggravated damages on Westminster, it referred to the council having contended that Meade posed a risk to vulnerable service users as “highly insulting and upsetting to her as a long serving social worker with an impeccable reputation”.

In relation to Social Work England, the tribunal said that its reformatted statement of the case against Meade, in July 2022, had been “insulting and oppressive” and “sought to demonstrate the claimant’s culpability”.

It also found that both organisations “in the conduct of the respective procedures demonstrated considerable animosity against the claimant on account of her gender critical beliefs”.

‘A serious abuse of power’

In imposing exemplary damages on Social Work England alone, the tribunal said that its actions “constituted a serious abuse of its power as a regulatory body”.

It had “allowed its processes to be subverted to punish and suppress the claimant’s lawful political speech, and to do so on grounds of her protected beliefs” and that, furthermore, it had “a pre-ordained view as to the claimant’s beliefs being unacceptable”.

The tribunal also criticised Social Work England for “its failure to offer any form of apology” to Meade following the original judgment, and said it had “demonstrated an unwillingness to accept that its actions were unacceptable and caused [Meade] considerable distress”.

As well as the damages, the tribunal recommended that Westminster, within six months, ensure that all of its managers and human resources staff receive training in freedom of expression and protected beliefs, including the implications of the Forstater judgment (see box above). The details of this should be shared with Meade, it said.

It recommended the same training in respect of Social Work England’s fitness to practise triage, investigation and case examiner staff, adding: “We consider that this is appropriate given the deficiencies in the process, we have found to have existed in the liability judgment.”

‘We take this case extremely seriously’

Colum Conway, chief executive, Social Work England

In its response to the judgment, Social Work England chief executive Colum Conway said: “As the national regulator for the social work profession we take this case extremely seriously. We want to reiterate again how we recognise this has been a particularly difficult case for Rachel Meade and all others involved.

“Gender critical views, namely the belief that sex is immutable, are a philosophical belief protected under the Equality Act 2010. We have already started implementing our learning from this case.”

He added: “We have already developed internal guidance for our fitness to practise team. The guidance considers concerns raised to us on the use of social media by social workers. In addition, we are in the process of updating and delivering training on the drafting of regulatory concerns, have started providing case law updates and implemented amendments to our regulations on the review of case examiner decisions.”

He said that the regulator would deliver training to its triage, investigation and case examiner teams on the Equality Act and the Human Rights Act, their impact on regulatory process and how to appropriately factor this into decision making. This would include training on freedom of expression and protected characteristics and would be delivered by an external legal trainer within two months.

Conway added: “While we remain committed to learning from this case and implementing next steps, we are still considering the remedy judgment and our options.”

The Professional Standards Authority, which oversees Social Work England, said, in a statement: “Through our performance review process, (in which we assess regulators against the Standards of Good Regulation), we will monitor how Social Work England responds to the employment tribunal judgment and its recommendation. Social Work England’s performance review period runs from January to December and we aim to report on this by the end of March each year.”

‘A huge relief that it’s finally over’

Rachel Meade

In response to the remedy judgment, Meade said: “It’s a huge relief that it’s finally over and that the [employment tribunal] awarded significant amount of compensation to reflect the serious nature of the harassment I experienced at the hands of my professional regulator and employer just for expressing legitimate beliefs and concerns.”

A Westminster City Council spokesperson said: “We have received the findings of the remedy hearing and will need to take a little time to digest before responding more fully.

“We have apologised to Rachel Meade and the points which emerged during the tribunal and remedy hearing are an important and helpful guide in clarifying what is acknowledged to be a rapidly evolving area of employment law.”

The equality watchdog is backing a social worker in a discrimination claim against her former employer related to her experience of menopause symptoms.

The Equality and Human Rights Commission (EHRC) is funding Maria Rooney’s legal representation for her claim that Leicester City Council discriminated against, harassed and victimised her on grounds of sex and disability.

The employment tribunal started on Monday (2 October) at Leicester Tribunal Hearing Centre.

‘Forced to resign’

Rooney claims she was forced to resign from her post as a children’s social worker in 2018 because of unfavourable treatment for menopausal symptoms, which had resulted in her taking extended sickness leave from her job in December 2017.

She said this treatment included receiving a formal written warning due to her absences.

In 2019, a tribunal dismissed her claims of harassment and victimisation and said her sex discrimination claim had no reasonable prospect of success. The tribunal judge also struck out her claim of disability discrimination on the grounds that her menopausal symptoms did not amount to a disability for the purposes of the Equality Act 2010.

The act defines a disability as a physical or mental impairment that has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.

However, in 2021, an employment appeal tribunal (EAT) ruled that the original tribunal had mistakenly struck out her sex and disability discrimination claims “without adequately analysing them” and gave “insufficient reasons” for its decision to do so.

The EAT ordered that Rooney’s case be reheard by a fresh employment tribunal.

Menopausal symptoms can be disability

Following a preliminary hearing in February 2022, a tribunal ruled that Rooney was disabled throughout the relevant time due to “a combination of symptoms of the menopause associated
with symptoms of stress and anxiety”.

EHRC chairwoman Baroness Kishwer Falkner said: “Menopause symptoms can significantly affect someone’s ability to work. Employers have a responsibility to support employees going through the menopause – it is to their benefit to do so, and the benefit of the wider workforce. Every employer should take note of this hearing.

“I am pleased we can support Ms Rooney with her case which she has been fighting for several years now.”

Rooney said: “I was a dedicated children’s social worker and I worked at Leicester City Council for 12 years but when I started suffering with work related stress and anxiety and menopausal symptoms nobody listened or helped me.”

She added: “I am very grateful that the EHRC is supporting my case now and hopefully my case will help other people who may be being discriminated against, harassed or victimised in their workplaces.“

Leicester City Council has been approached for comment.