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.”

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.

Regulator’s sanction

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.

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 beliefs, 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”.

Remedy

At a separate remedy hearing, Ms Meade was awarded over £58,000 in damages from Westminster City Council and Social Work England  for discrimination relating to her gender critical beliefs.

This was the first time a regulator has been ordered to pay exemplary damages because of the manner in which it has carried out its regulatory function.

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

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.”