HARASSMENT, DISCRIMINATION AND SOCIAL WORK ENGLAND
On 4 January 2024, an Employment Tribunal found that Social Work England (‘SWE’) was guilty of harassment and discrimination against Rachel Meade, a social worker regulated by SWE. That finding must be a huge blow to the credibility of the recently created regulator who will have to work very hard to convince those it is required to regulate that they can have confidence in its work, its fairness and its impartiality.
To be fairer to SWE than it was to Ms Meade, the regulator was handed something of a poisoned chalice when it was established by the Department for Education and the Department for Health and Social Care. The previous system for dealing with concerns about a social worker’s fitness to practice had, apparently, been criticised by the Professional Standards Authority for being ‘expensive and overly adversarial’. In response to this, SWE’s fitness to practice framework was built on saving cost and swift disposals rather than too much concern over checks and balances.
When the regulations were still in draft and out for consultation, I published an editor’s blog on the issue on 1 April 2018. One of my concerns was the risk of unfairness to social workers, who may be pressured into accepting an agreed disposal without any hearing before adjudicators. Setting out my worries about this, I said:
‘It puts forward a mechanism whereby the person, who is the subject of the complaint, can accept that their fitness to practice is impaired and accept the sanction proposed. In that case, the agreed outcome will be implemented without any hearing before an adjudicator…
‘…Saving cost is the paramount consideration, it would seem. The proposals fail to acknowledge that the social worker and the regulator are not on a level playing field. There is no equality of arms. All of the resources and the expertise are in the hands of the case examiner who brings the prosecution. The social worker may well be unrepresented. There is huge potential for people to be bullied out of the profession, without any kind of fair assessment of their behaviour and with no proper redress.’
I raised these concerns with SWE when Nagalro went to meet SWE when it was being set up but was told that nothing of that sort would be allowed to happen. The draft regulations became the Social Workers Regulations 2018 on 22 July 2018.
The background to Rachel Meade’s case
Rachel Meade is an experienced social worker who had worked for Westminster Council in Adult Services since 13 August 2001. She had worked both in the community and in a hospital setting as a Care Manager and a Senior Care Manager. Her case arose when she was made the subject of a fitness to practice enquiry by SWE. The concerns were not based on anything she had said or done in the course of her professional practice, nor had she been prosecuted for any criminal offence. Her Team Manager said that she ‘had never practiced in a discriminatory way and that her work with minority groups was exemplary’. Her offence was that in her Facebook account, which is set up as private rather than public and only had around 40 friends or followers, she posted pieces which expressed her gender-critical beliefs.
It is worth saying at this stage that the nature of the beliefs which led Ms Meade into difficulties are of no particular importance to my criticisms of SWE. Apart from understanding the factual background, it does not particularly matter whether Mrs Meade was expressing beliefs on gender, Brexit, the reality of transubstantiation, membership of the Flat Earth Society or the imminent second coming of the Great Prophet Zarquon. My concerns are what the case tells us about SWE regulatory procedures and its ability to harass and punish practitioners without any valid, legal reason.
According to her evidence to the Employment Tribunal, Rachel Meade is a feminist and holds gender-critical views. She has campaigned for many years for women’s rights. Those who hold gender critical views take the view that ‘biological sex is real, important, immutable and not to be conflated with gender identity’. Rachel Meade, and others holding gender-critical views, would say that ‘statements such as “woman means adult human female” or “trans women are male” are statements of neutral fact and not expressions of antipathy towards trans people or “transphobic”’.
On 15 June 2020, another social worker, who was one of Ms Meade’s Facebook friends, made a complaint to SWE concerning what he alleged to be her transphobic comments on her Facebook account. On 9 November 2020, SWE’s investigator wrote to Ms Meade advising her that she may be ‘culpable of misconduct’ and asking her for a response by 23 November 2020. The judgment of the Employment Tribunal notes that the investigation was concluded quicker than usual (four months rather than six) and there was a suggestion in cross-examination, not entirely resolved, that the investigator and the complainant were known to each other ‘and had a shared social history’. Ms Meade responded, as asked, to SWE and also, in January 2021, voluntarily attended additional training on working with transgender people. On 19 April 2021, SWE concluded its investigation.
On 10 June 2021, an Employment Appeal Tribunal, chaired by Mr Justice Choudhury, handed down its decision on a case brought by a lady called Maya Forstater who complained that she had been discriminated against by her employers on account of her gender-critical views. In Maya Forstater v CGD Europe, Center for Global Development and Masood Ahmed the EAT held that gender critical beliefs were a philosophical belief and protected under s10 Equality Act 2010. It was held that to be excluded from such protection, the belief would have to be akin to Nazism or totalitarianism and so liable to be excluded from Articles 9 and 10 of the European Convention on Human Rights. The EAT also illustrated the point by saying:
‘100. Some beliefs, for example, a belief that all non-white people should be forcibly deported for the good of the nation, are such that any manifestation of them would be highly likely to espouse hatred and incitement to violence.’
The distinction was that, in such a case, the rights of others would, inevitably, be destroyed. Ms Forstater’s beliefs (and, by extension, Ms Meade’s) were, the EAT said ‘not comparable’ since they did not seek to destroy the rights of trans persons. The Forstater decision carries with it some important conditions, including that, quite explicitly, the decision does not permit those with gender-critical beliefs to ‘misgender’ trans persons with impunity. Such people will continue to have the same protections against harassment and discrimination conferred upon them under the Equality Act 2010 and those with gender-critical beliefs will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else.
This decision should have prompted an urgent review of how SWE dealt with fitness to practice complaints against those with gender-critical views. This did not take place. On 28 June 2021, SWE wrote to Ms Meade informing her that the Case Examiners had decided that there was a realistic prospect that her fitness to practice would be found to be impaired. The letter went on to say that it had been decided that it was not in the public interest for the case to proceed to a hearing and that, if Ms Meade agreed, a one-year warning would be an appropriate sanction. As to Ms Meade’s thoughts about this, she told the Employment Tribunal that:
‘… she felt helpless, it was lock down, she was working in a busy hospital and there was lots going on in her family life. She had encountered difficulties in getting support from her union. The Claimant said that she just wanted to carry on with her job. She felt under duress from the Second Respondent, as they as her Regulator were saying that the posts were discriminatory, and that was a position she was reluctant to challenge at the time and simply wanted the process to be over. She said that soon afterwards she regretted her decision.
‘67. In her evidence she described feeling bullied by the whole process. She felt that something worse could happen if she did not accept the sanctions. She was concerned that this could include losing her registration and job.’
The Tribunal accepted her evidence on this and found that ‘she was subject to an intimidating and hostile environment and this impacted on her decision making.
Ms Meade agreed the proposed disposal and on 8 July 2021 SWE made a final decision. Here we see the dangerous flaw within the accepted disposal process whereby SWE is both judge and prosecutor and there is no outside scrutiny of the appropriateness of the proposed outcome. If any proposed outcome had required the approval of an adjudication panel, such a hearing would have inevitably begun by the adjudicators referring SWE to the decision in Forstater and asking how could Ms Meade’s case be distinguished from that? A careful and conscientious adjudication panel might well have offered to adjourn matters so that Ms Meade could seek advice and legal representation on the impact of this new decision on her case. Because the system was deliberately set up to avoid costs, none of these things happened and inevitable consequences followed.
Westminster Council quickly became aware of the sanction and carried out its own risk assessment. This included asking SWE the following questions which were all answered in the affirmative:
- ‘As result of the nature and seriousness of the offence does it breach the Code of Conduct?
- ‘If substantiated could the allegation be gross misconduct?
- ‘Is there an element of bullying or harassment?
- ‘Is the employee at risk of harm from others?
- ‘Is there continued risk to children or adults?’
Westminster Council told Ms Meade, on 22 July 2022, that she was suspended with immediate effect. Her suspension was to last for almost 12 months.
Ms Meade contacted SWE on 6 August 2022 to ask if she could appeal against the regulator’s previously agreed decision. She was told that there was no provision for an appeal against an agreed disposal. Eventually, by 14 December 2021, SWE accepted that Ms Meade was no longer consenting to an agreed disposal and so, on 28 January 2022, SWE decided to refer the case for a final hearing before an adjudication panel and told Ms Meade that the reference to the warning would be removed from her registration entry. In fact, it was not removed from the register until 1 July 2022. Even in January 2022, SWE had not taken on board the Forstater decision and the fact that Ms Meade’s beliefs and her Facebook posts may have been a legitimate manifestation of her protected belief.
It was not until the autumn of 2022 that SWE seems to have become aware of the implications of the EAT’s decision. On 7 October 2022, the solicitors instructed to represent SWE in Ms Meade’s forthcoming final hearing wrote to her to advise her that SWE will apply to discontinue the proceedings against her as there was no realistic prospect of a finding of impairment being found. At the subsequent hearing on 17 and 18 October the adjudicators found that Ms Meade’s practice was not impaired and it was appropriate for SWE to offer no evidence against her.
In the light of her experiences, Ms Meade brought claims against Westminster Council and SWE for harassment and discrimination. The claim was heard by an Employment Tribunal on 5 to 14 July 2023 and a judgment handed down on 4 January 2024. Both claims succeeded against both Respondents. The level of damages remains (at the time of writing) to be assessed.
The decision is highly damaging to SWE’s standing as a fair, informed and balanced regulator. Paragraphs 252 and 253 of the decision say, under the side heading ‘General observations’:
‘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”.
‘253. 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, as to whether a social worker’s social media posts had over stepped the line in terms of their content and potentially offensive nature’.
The approach of SWE was found to be based on a view 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.’ It was only very late in the proceedings that SWE accepted that Ms Meade’s gender-critical beliefs were protected beliefs that she was entitled to manifest, subject only to the points made in Forstater. The Tribunal was clear that, had it not been for Ms Meade’s protected belief, and the manifestation thereof, the overall process against her would either not have taken place at all or would have been discontinued after an initial investigation.
A finding of harassment and discrimination against a professional regulator is a very serious matter; even more so when it is based on an inadequate and unbalanced investigation. Social workers are entitled to know what their regulator intends to do in order to make sure that such cases can never be repeated. Social workers are, rightly, held to the highest professional standards. They should accept nothing less from their regulator.
A promising start would be an overhaul of the accepted disposal procedure by seeking an amendment to the rules so that any proposed accepted disposal must be referred for approval to adjudicators to ensure independent oversight and to protect professionals against being bullied and harassed to agree to unwarranted sanctions.