Not worthy of respect in a democratic society” – that was how an employment tribunal described the claimant’s “gender critical beliefs” in Forstater v CGD Europe in December 2019. The Employment Appeal Tribunal disagreed in June 2021. 
 
A few weeks ago, with the Forstater decision featuring in the background, we find a tribunal press report headlined “Social worker suspended over gender critical views awarded £58,000”. This comprised £40,000 for injured feelings, £5,000 in aggravated damages and £5,000 in exemplary damages, together with interest. Has the pendulum swung that far? 
 
Rachel Meade, the claimant in Meade v Westminster Council and Social Work England, was a social worker of over 20 years’ standing. She was suspended over her belief that “a person cannot change their sex”. She had shared and liked Facebook posts to that effect, via a private setting. One of her Facebook friends complained to Social Work England. An investigation began in November 2020. After eight months, SWE reached a finding of “impaired fitness to practice”. Westminster Council found out, and suspended her on gross misconduct charges in July 2021. The suspension lasted just short of a year. Although she avoided dismissal, she was given a 24 month final written warning. She succeeded in overturning this on appeal, and no sanction was imposed at all. The combined process, and the underlying threats to her career and livelihood, had hung over her for 20 months. She was evidently not prepared to let a line be drawn. 
 
Ms Meade’s claim succeeded on the grounds of harassment: unwanted conduct violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. All because, via her Facebook activity, she had manifested beliefs now attracting Equality Act protection, and her managers, colleagues and regulators were found to have overreacted in a high handed manner that went beyond the pale. 
 
To what extent would the discovery of the Facebook activity have been better addressed via a quiet word along the lines of “hey, tone it down a bit, remember what you do for a living and who you interact with”? Even if Ms Meade had reacted along the lines of “I hear what you say, and will take note, but don’t try to tell me what I’m allowed to think”? In this case, we may never know. But this may be a sensible approach for most employers. Of course, if an employee was manifesting a belief contrary to an employer’s fundamental principles and cornerstone basis of existence, that would be another matter. However, the chance of such an employee staying with such an employer, or being taken on in the first place, would be remote. 
 
We recently advised on a dispute where an employee had turned up at our clients’ workplace, six days after the 7 October 2023 atrocity, deliberately wearing provocative clothing and symbols relating to what had taken place. Having declined to change his clothes and remove the symbols, he was dismissed for gross insubordination and deliberate provocation of conflict and unrest. Lacking two years’ qualifying service, he claimed religious discrimination, despite having never expressed any prior deeply held convictions of that nature before his provocative conduct. In the face of a costs warning, which called him out upon the absence of any such prior expression, he quickly backed down and withdrew his claim. 
 
No workplace is going to be entirely free of offence being given or taken. Well written policies, combined with prompt action when conflict is in danger of breaking out, can help minimise wider fallout. For any help in this area, feel free to contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk . 
 
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