Thread by @tribunaltweets

Good afternoon and welcome back to Day 3 of the Employment tribunal for RM v Westminster City Council and Social Work England. We expect Naomi Cunningham to continue examining Graham Norris' evidence

2pm start

Catch up with this morning & case info here:
tribunaltweets.substack.com/p/rm-v-westmin…

Abbreviations
J - Employment Judge Nicklin
RM - Social Worker sanctioned by SWE
NC - Naomi Cunningham, Barrister for RM

WCC - Westminster City Council
SWE - Social Work England
SC - Simon Cheetham KC, Counsel for Social Work England and Westminster City Council

JB - Julie Bann, solicitor for WCC
LK - Laura Kenney, SWE witness, investigation supervisor
GN - Graham Norris (title unknown as yet)

MM - Mermaids

SFW - Standing for women

FPFW - Fair Play for Women

WPUK - Women's Place UK

Other:
GI - Gender Identity

GC - Gender Critical

BITWB - 'Born In The Wrong Body'

WORIADS - Worthy of respect in a democratic society

[Hearing resumes]

NC: Failure to reconsider is next topic. Decision makers are not lawyers?
GN: we are independent decision makers employed by SWE. Able to seek advice but wasn't in place at time of this examination.

NC: turn to page 634. A letter to you from Aug 2021 from Head of Legal, Polly L (PL).
GN: from time to time we do receive legal guidance such as this in letters to us. But legal advisers don't interfere unless there's a need

NC: independence is a key aspect of ur role?
GN: personally there has to be a line to that as we're employed by SWE
NC: you had freedom about what u did next after Graham Linehan untruths. [Reads] so it would've been open to u to make a different decision of no further action?

GN: yes
NC: and u could have thought a bit harder about RMs freedom of expression and Forstater?
GN: would have been an opportunity for SWE to introduce Forstater but this letter isn't about this
NC: created an opportunity to look again though?

GN: may have been opportunity to review the decision and we do review in unusual circumstances. Substantially reduced weight of the concerns
NC: u must have been aware of Forstater at this point?
GN: we weren't looking at RM beliefs (missed) didn't change outcome of this case

NC: u were confident Forstater was irrelevant?
GN; wasn't confident (missed)
NC: so u understood it without legal advice?

GN: case law is important and if SWE think relevant they'll introduce.they say they value decision makers and their decisions. Made it reasonably clear no need to introduce Forstater in relation to this case.

NC: I will pause and give opportunity to tribunal to read. It's not on reading list.

NC: tell me if a fair paraphrase, in a nutshell the FTP hearing is saying bc u reissued your decision taking out Graham Linehan, bc u weren't aware of appeal or review, that decision has proceeded on statement of fact. Fair?

GN: yes. Want to point out didn't give us broad opportunity...
NC: yes am coming to that. [Reads: 'our view scope to reopen is limited'] You also get a clear steer from SWE lawyers?
GN: binary choice
NC: that's the choice and u get guidance how to go about it [reads]

NC: [reads 'whether public interest in this hearing'] page 2149. Para 91 [reads] so provided RMmaintained her position of consent ur new decision could only go one way to Fitness To Practice hearing?

GN: here at 55 [reads 'RM didn't consent and we had no choice'] there were additional reasons as evidence
NC: what was that?
GN: extra bundle as RM was disputing most alleged facts of case
NC: look at 774. A letter to RM

NC: they'd actually decided or what they told RM was to permit a review
GN: we hadn't seen this letter. No sight or knowledge of it
NC: are u familiar with Schedule 2 to 3018 regs?
GN: not without seeing them

NC: I suggest under para 15 of those u could have revoked ur decision. You had wide power
GN: had I seen this letter
NC: I suggest is that under the para 15 if the regs u could have done much more than revisit
GN: I'd have to look at the regs

NC: if u known u had power to revoke the decision and if you'd realised you discriminated against RM u could have put right what u had done wrong
GN: (missed)
NC: you're a SW yes?
GN: yes
NC: so u have obligation not to discriminate?
GN: generic principle

NC: if in your capacity u were guilty of unlawful discrimination
GN: guilty isn't right
NC: responsible. That binds u in your role at SWE doesn't it?
GN: good question and needs to be answered by SWE. I'd be concerned if I was engaging in 5.1 (missed)

NC: clear difference between you and Miss Martin. U are bound by SWE regs as she is not a SW
GN: useful to hear answers from SWE
NC: this seems to be important point. Are u telling tribunal u are not sure in your function of SWE that u are bound by 5.1 here?

GN: no as a SW I'm bound as is evey other SW
NC: fair to say grounds discrimination of all in EA10?
GN: includes wide range embedded in training
NC: so it goes wider than EA10?
GN: not defined

NC: part of ur job to know what constitutes discrimination
GN: yes but wasn't looking at RM beliefs we were looking at her fb posts
NC: would u accept someone who holds GC beliefs is as worthy as a person who has PC of Gender reassignment?

GN: that's a complex legal argument
NC: it's clear by complaint by Aidan was to punish RM for GC beliefs
GN: SW is entitled to make a complaint

NC: is it evident or not. I'm asking if u agree of disagree that if u read complaint and investigation report, its very obviously Aidan Wolton is using process to punish

RM
GN: we have no background on Aidan Wolton (AW). Most info emerged was not available to us so how could we be aware of that?
NC: if u read his complaint and the info he provides that what he's doing is using SWE process to punish RM belief

GN: those processes are designed when we get to examination stage, we knew nothing of complainant. We knew he was a SW and weren't aware of any adverse history. I don't recall any convos as to any adverse history. SWE would have had separate info as to where he'd worked and CPD.

NC: and Jack Aitkin was willing to cooperate with AW?
GN: AW came with a highly valid complaint.
NC: that's how you characterise it
GN: we thought needed further investigation.

NC: AW is registered SW. Have u taken any steps against his discriminationary behaviour towards RM?
GN: if RM wanted to complain about him she would be welcome to do so

NC: RM has been put through misery for years because of AW and because SWE willingness to cooperate with AW. End of process is RM did nothing wrong. You agree?
GN: I can only speak from examination stage and that was we had far less info.

Examiners acted proportionately and offered minimal sanction possible. 1 year warning is lower end of seriousness. Wasn't 3 year or 5 year, no suspension or removal. It was a warning she needed to be mindful of EA10 & duty to foster relationships between people with PCs & those

who don't.
NC: it's obvious RM accepted those because she didn't want the outcome to be worse?
[GN starts and cut off by NC]
NC: you're not answering question.
GN: outcome could have been less serious but she did neither and accepted the particulars.

NC: so the result of the whole process is that RM has been put thru 2 years of misery and financial hardship as a result of perfectly properly legal rights. RM is here now, anything u want to say to her?

GN: have every empathy however we are confined to procedures we were subject to. Case examiners weren't aware RM didn't give consent
P: whn u applied test in ur decision making did u consider RM wasn't aware her posts were discriminatory,

she'd taken them down and never mentioned she was a SW?
GN: her main posts were RM so if anyone decided to search she'd be found as a SW
P: and she took them down
GN: some difficulty there. If SW says they accept we consider that consent
P: I don't understand that. Can u help me?

P: she says she's unaware of the discriminatory views,
(Missed)
GN: we accepted RM sought out extra training, we did feel there needed to be a message to be sent for standards to be expected for SWs

P: in relation to petitions. U say they weren't part of decision making. Why didn't u state that in ur report?
GN: fully accept parts of decision could be better. We thought parts were misconduct.
P: now looking at 'advice of warnings'

P: under accepted disposals it says [reads]. So where is it RM accepted her FTP was currently impaired?
GN: (pause) ordinarily in acceptance of concerns (looking through files)

P: is there a section about impairment?
GN: it does say do u accept FTP is impaired and she ticked no.
P: so if she's ticked no how does para 90 lie?

GN: [reads] sometimes that cases can depart from that guidance. That's not usual, could be about public impairment not private
P: were u moving from guidelines for the public?
GN: can't recall
P: how is disposal communicated to SW?
GN: case operations team

GN: again that's to maintain objectivity
P: is that someone else in SWE who had convo with RM?
GN: case operations team
P: do u know who that was?
GN: can't remember whether Fran who is here today or Ian. Need clarification on that

P: last question. What was it that public impairment and the warning was required in this case?
GN: a message for all SW that they need to abide by section 149. We are SWs as profession and engaged for positive change to bring communities

together and sources together in some of their thinking. Difficult debate at difficult time. I believe that's SWs role
[Panel 2 asks Qs now]

P2: what analysis did you conduct to tick this box?
GN: I'd agree with LK that evidence could have been triangulated. Had RM accepted she made those posts, and compounded by fact RM deleted the posts. Looking back I don't know

how we would have found further evidence
P2: did u need more info about groups referred to?
GN: we had submissions from RM and why they were made
P2: u were satisfied that was enough?
GN: at the time but in hindsight could be revisited.

P2: was there a process of u discussing getting more evidence?
GN: don't remember. But by virtue of the form ticking it probably suggests so

P2: do u recall reading the letter and what did u take from it re RM being discriminatory?
GN: I can't remember
P2: u said u offered lowest warning possible. Why a warning opposed to advice?
GN: because we needed to send a message to social workers

P2: [reads] I wondered if u can explain why advice would not be more appropriate
GN: because offence was caused
P2: doesn't say that here
GN: we weren't party to discontinuance process
P2: why did u think it was widespread
GN: considered to cause considerable distress to TG ppl

P2: did u think lesser sanction might have been appropriate?
GN: difficult for me to judge. Our view from professional perspective at least a number of these posts were offensive and while posts were from mainstream media sources it doesn't

make it any less offensive to TG people who also have protected beliefs in EA10
J: had any member of TG community read them?
GN: firstly the complainant and he laid it out but other than that we don't know as wasn't a private fb page.

A Significant minority population would be distressed to see that posted by a SW
J: if something is on mainstream media, does that in ur view provide some sort of legitimacy. If it was that offensive the broadcaster would be reluctant to broadcast it

Or be sanctioned by relevant media bodies.
GN: SWs are in different position than members of the public and what they tweet is subject to scrutiny. SWs are here to bring communities together.

J: can I just ask ur evidence has been GC beliefs wasn't the issue it was the fb posts. U say discriminatory views, is that a ref to RM?
GN: well I...it's unusual SW have discriminatory views. It was very clear from feedback from managers that it didn't affect her professional

practice. However in component 3 and SW private life, partic the 3 or 4 posts we fettered to. Those posts include behaviour that was consistent over period of time.
J: Re Graham Linehan, u say it was a mistake of fact

GN: mistake of fact was around whether Graham Linehan ...I think GL was not relevant to the case. Those petitions was you know, she she, talked about Linehan, all agreed to (tails off and can't hear)
J: was there any possibility of a more serious sanction being imposed?

GN: we saw that as a fair warning
J: would anyone in that situ think they could get a more serious sanction?
GN: you have opp to give live evidence...
J: would it be possible?
GN: (can't hear, too quiet)

J: was this a collective process? Not sure what Dillans role was
GN: Jonathan Dillon was in communications...(can't hear) And was fully supportive of our processes

J: finally you say it this communication 2022, why do you say a degree if online commentary on the decision. Why would that affect ur objectivity?
GN: as time progresses and opinions are embroiled it begins to get difficult to separate facts from fiction.

GN: this process needed a fresh pair of eyes and there was a number of attempts to try and accommodate RMs requests for reviews despite restrictions we had at the time

P: one question for clarity. Page 545 of bundle. When u said u considered 3 or 4 posts, obviously you mentioned girl guides and Ian Huntley. Can u clarify which ones?
GN: I'd have to go through all of them
P: you can't remember the 3 or 4?
GN: vaguely

P: that's fine. Can you point to them?
[GN going through bundle and gives 4 points]
P: thank you
J: any questions NC?
NC: yes. Starting at the end. U say 3 or 4 posts u considered problematic. It's Hard to square what u say in your decision.

GN: the 3 and 4 were particular concern to service users, members of the TG community.
NC: u were asked about range of possible outcomes. There's a doc at 527 and it says (missed)
GN: yes at that time removal wouldn't have been available to us.

NC: u said SWs are held to higher standard but they're not judges. They are allowed to campaign vigorously that gender doesn't trump sex isn't she?
GN: she's entitled to but that increases risk for minority groups. Would expose ourselves to higher risk of complaints

NC: what ur suggesting is if she campaigns on this issue she will be at high risk of complaints
GN: no the polarity of the opinions are just that, polarities and were supposed to look at things with more perspective.

NC: I'll try again. We know RM has GC beliefs and we know she manifested them on her fb. That caused a Co plaint so we know that's likely. Notwithstanding liklihood of complaints do u agree she is allowed to publicly campaign her GC beliefs
GN: she is

NC: do u think using the process to frighten SWs into silence is (missed)
GN: no
NC: u said u need to send a message
(missed)
[SC interjects]
SC: can u clarify how u knew Aitkin knew Mr Wolton?
GN: I'd like to correct that, I had no knowledge of that.
J: that ends ur evidence GN

[short break, we will return with a new witness]

[For clarification, the previous witness was called Graham Noyce and not Graham Norris.

Another witness is sworn in. Can't hear full name other than Eleanor]

SC: all SW seem to have quiet voices (laughs) please speak up.
NC: starting at para 5 of ur WS, you say u need decent understanding of EA10?
Eleanor (E): yes.
NC: your voice has already gone down again, please help those at the back hear

NC: u think its important to understand GC belief?
E: yes
NC: there will be beliefs that SWs will dislike?
(Can't hear E)
NC: not true with all beliefs that we will get on, sometimes we will take exception
E: yes
NC: some ppl get very cross
E: agree

NC: if a public statement of GC belief crosses the line that its extreme and offensive you can assume that any opposite belief would also be
E: agree
NC: would u agree that if there was one case that SWs should know is the case if the SW who said homosexuality was wrong?

(can't hear E)
NC: you said was no legislative power of Examiner decision. Turn to page 767. May be that you'll say you're not a lawyer but will put questions to you

[I'm missing this line of questioning as far too fast and I can't hear the witness.]

NC: now if u look at page 693 we see that on 6th Sept RM requested a review and attached evidence which we can see at 670. That was within 28 days
E: slight complications...irrelevant.. some question as to whether time scale (can't hear)

NC: I'm suggesting letter in response could have just said we will review and review would be corrected to put right.
E: early review process wouldn't be able to...we were looking for other avenue...(can't hear)

E: to me there was a mistake of fact.. (can't hear)
NC: whatever the mechanism we're probably agreed RM asked fir a review and SWE chose to reopen
E: RM was seeking (can't hear)
NC: you didn't have to do either did u?
E: rephrase

NC: it was about discretion on your part?
E: no mechanism at time. Only option was a review (can't hear) Only mechanism was to send back to case examiners
NC: u had the grounds to do that. U were keen to look for them?
E: (can't hear)

NC: this wasn't about being fair to RM, it was about SWE making an example
E: disagree
NC: page 933

NC: what this shows is a complicated route. Gives examiners only one exit which is FTP.
(E is responding but can only hear random parts]

NC: no more questions
P2: did you ever consider asking RM her views?
E: process is fixed. (Can't hear)
P2: was she given the choice?
E: (can't hear)

[Couldn't hear line of questioning from P2 and E]
P1: in your experience do people move outside that guidance at that stage?
E: FTP is very complicated.. very literal...FTP is different...level of discretion

P: when the accepted disposal was made and made public, would the whole judgment go on website?
E: yes
P: is it member of ur team regarding FTP versus disposal
E: (can't hear)

J: one question from me. You said not about views but how they're expressed. Are there any views SWE have issue to?
E: ....it's not views but way they're shared...shared in different forums?
J: hypothetical question, what if a SW posted a holocaust denial?
E: (can't hear)

J: any questions SC
SC: the last sentence here [reads] what did u understand RM was seeking?
E: (can't hear)
J: end of evidence. We'll conclude there

SC: tomorrow Francis Whittaker, then longer lunch. I need to leave at 13.10. Whittaker then Rose.
J: broadly on target for subs on Friday. Tomorrow morning at 10.

[HEARING ENDS]

[Apologies for the terrible sound and missed responses, it was out of our control]

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