Since the EAT’s landmark decision in Forstater v CGD Europe Ltd [2022] ICR 525, the Employment Tribunal has seen a string of high-profile claims of discrimination and harassment brought by employees holding gender critical beliefs. That line of authorities has continued with the recent victory of social worker Rachel Meade against both Westminster City Council and her regulator, Social Work England.
The facts
Ms Meade is a qualified social worker who has worked for Westminster Council since 2001. She holds gender critical views. As with many of the cases in this area, the difficulties arose not from her conduct within the workplace but in sharing and advocating for her views on social media.
Ms Meade used a Facebook profile that was set to private and posted messages to approximately 40 friends, including a handful of colleagues at Westminster Council. She made a number of posts that expressed her gender critical beliefs. One of Ms Meade’s colleagues (and Facebook friends) complained to the regulator about these posts in June 2020, alleging that they were transphobic and that Ms Meade had deliberately shared posts containing misinformation about the trans community.
Social Work England’s Fitness to Practise Rules prohibit social workers from discriminating against any person and from using social media unlawfully, unethically or in a way that brings the profession into disrepute. Following an investigation into the complaint, Ms Meade was told that there was a reasonable prospect that her Fitness to Practise would be found currently impaired because of her discriminatory activity on Facebook and donations to organisations which appeared to hold discriminatory views. The regulator noted that while there was no evidence that Ms Meade had acted in a transphobic manner at work, the Facebook activity amounted to a pattern of discriminatory behaviour over an extended period.
In June 2021, shortly after the EAT’s decision in Forstater, Ms Meade was told that she could either accept the report and a sanction of a one-year warning or have her case referred to a hearing. She chose the former. Westminster Council was informed of this outcome in July 2021 and Ms Meade’s immediate managers confirmed they had no concerns about her practice. She was nevertheless suspended on charges of gross misconduct the same day.
A disciplinary investigation report concluded in critical terms that there was a case to answer regarding Ms Meade’s discriminatory use of social media and support for organisations that discriminate against specific groups. Westminster Council issued a final written warning in July 2022 and then lifted Ms Meade’s year-long suspension.
In the meantime, Ms Meade challenged the sanction given by Social Work England, who in October 2022 decided that the social media posts were not offensive and that proceedings regarding her Fitness to Practice should be discontinued. Shortly thereafter Westminster Council granted her appeal against the final written warning.
Decision and analysis
Viewed with hindsight, it is perhaps unsurprising that (the majority of) Ms Meade’s claims succeeded. Many of the key facts pre-dated the EAT’s decision in Forstater. The Tribunal found in blunt terms that the Respondents’ contemporaneous state of mind was that Ms Meade’s beliefs were inherently discriminatory and transphobic and therefore unacceptable. She was suspended for over a year and subjected to a number of clear detriments. Various significant factors appeared to be given little or no weight at the material time, such as the very limited audience for Ms Meade’s Facebook activity and the fact that the views were expressed personally and not on behalf of her employer (or indeed in the workplace).
The judgment is a salutary reminder of the importance of proportionality when dealing with cases of religion and belief discrimination. Claims for direct discrimination under section 13 of the Equality Act 2010 cannot (save for cases of direct age discrimination) be defeated by a defence of justification. However, there is a well-established distinction between treatment because of a worker’s belief, and treatment because of an objectionable manifestation of that belief. Subjecting a worker to a detriment because of the latter would not be less favourable treatment because of a protected characteristic but will nevertheless amount to an interference with their rights under Article 9 of the ECHR. The approach taken in case law – including the recent EAT decision in Higgs v Farmor’s School [2023] EAT 89 – is to impose the well-known proportionality test from Bank Mellat v HM Treasury (No 2) [2014] AC 700. In short, if the employer’s acts are not a proportionate response to the objectionable manifestation of the belief, they cannot sensibly be treated as separate from an objection to the belief itself.
In that context, employers will need to carefully weigh up a number of factors when responding to complaints about a worker’s protected beliefs. Per Higgs, these will include (i) the content, tone and extent of the manifestation; (ii) the worker’s understanding of the likely audience; (iii) the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business; (iv) whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer and so present a reputational risk; (v) whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon; (vi) the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and (vii) whether any sanction is the least intrusive measure open to the employer.
This is plainly not a straightforward exercise for employers to undertake, particularly when dealing with workers on both sides of a highly polarised debate. Equally, it is not an issue that is likely to disappear any time soon. A well-advised employer will keep proportionality in mind whenever grappling with it.
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