Thread by @tribunaltweets

Good afternoon - we expect to resume in the tribunal of Rachel Meade vs Westminster City Council and Social Work England at 1 pm. Previous coverage here.
tribunaltweets.substack.com/p/rm-v-westmin…

P2 - did you use the team meeting to give them the same messages as you gave RM?
HH - in a most general sense.
EJ - did you consider giving a message to the whole team that views on gender identity are highly polarised and should be avoided if possible?

HH - I did not.
EJ - would you do it today?
HH - I might think about it.
NC - it would be difficult to impose a ban on GI discussions in the workplace given WCC trans inclusion policy and that it was a Stonewall champion.

HH - I'm not aware of either of those.
Witness released.

Next witness is Pedro Wrobel, WCC. SC walking through formalities of ID and adopting witness statements.
NC - asking first about your response to appeal of RM. 'The issue at point relates to whether the GC posts relate to your professional conduct, practice as a social worker

and that is much the same as your witness statement.
PW - where in my witness statement. Ref given.
NC - the problem with that is that there was never the slightest shred of evidence that she would not be objective and professional.
PW - what I'm saying is that was the core

question in the FTP process.
NC - the nature of misconduct that she shared posts, that could undermine service users confidence in her, not about Rachel's practice or objectivity or professionalism.
PW - the issue relates to the whether the GC posts indicate that RM would be

able to be objective in her work and conduct.
NC - 'used social media to share posts discriminatory in manner, funded discriminatory groups, etc'. Started out with a complaint of discrimination, then migrated to whether her views would impact the views of service users.

NC - that's quite a drift from the original complaint isn't it?
PW/NC - discussion about using pronoun 'her' for RM
PW - its all really the same thing isn't it. Its whether RM is able to carry out her role in a professional and objective manner.
NC - the drift reflects a

dawning realisation that GC beliefs are protected, playing out through the courts and the Forstater case.
PW - I'm aware of all that but I don't agree that we were shifting. I disagree with it quite strongly. We had an investigation that was carried out. MY role as an appeal

officer to look at the case.
NC - I'm suggesting that it was a slow horrified realisation of the impact of the Forstater decision on the behaviour of WCC.
PW - I do not agree.
NC - 'there were 2 posts that would be considered discriminatory, but none in that last 2 years so

sanction not upheld. Do you see that this would have a chilling effect on RM's freedom of speech and expression.
PW - No, I do not.
NC - so she could deduce from that she was free to revive to her Facebook page and tweet under her own name.
PW - need to remind you of the role

of the appeal officer. I was setting out the facts and the context of the appeal, the evidence etc.
NC - there is nothing in your letter to indicate to her that in posting as she did she had done nothing wrong.
PW - going in she had a finding of gross misconduct, and coming

out I lifted the sanction and the warning. I stated that this was the only time I had overturned an original decision. It shows the seriousness with which I approached this. I stay carefully within my role as appeal officer.
NC - you're giving very long answers

and I don't want to shut you down but could you try and keep your answers succinct and respond to my question.
NC - are you able to spell out on behalf of WCC that RM has done nothing wrong.
PW - my involvement has been as an appeal officer, I can't comment.
EJ - NC

can put any question to you that she wishes.
PW - I can't answer the question, I don't have sufficient expertise in HR.
NC - your letter basically says, you've done something wrong but we're letting you off this time
PW - I reject that as unfair.
NC - your instruction that

she must treat everyone respectfully and fairly, but that everyone else should treat her respectfully and fairly and that everyone not in a restricted post can express those beliefs.
PW - making sure when expressing beliefs in public that there is no impact in how you carry out

your role.
NC - employees entitled to campaign in line with their beliefs.
PW - we need to remember as officers that we need to be perceived as politically neutral,
EJ - the question refers to staff generally
PW - we have HR guidance that ask for discretion
NC - aren't they

entitled to engage in the democratic process including debate?
PW - WCC prides itself on ???, but where the debate is charged, they should be careful not to create conflict.
NC - but if people feel strongly on both sides, any expression of opinion is likely to create conflict

PW - people should be kind
NC - any aspiration to kindness can't trump the right of council staff to express their views
PW - agreed, provided that it doesn't impact their ability to do their role
NC - would an ethical vegan be expected to treat carnivores fairly?

PW - I would need to understand the context.
NC - the problem with gender identity creed is that it brands all dissent as hateful. The problem is that it doesn't accept everyone rubbing along together.
PW - I don't have sufficient expertise to express a view.

NC - GI says TWAW, TWAM and that is the literal truth
PW - I'm not going to express a view.
SC - are we straying from PW's evidence.
EJ - similar questions have been put to all witnesses.
SC - relevance?
EJ to NC - not going to close your questions down

but bear timing in mind
NC - the problem is that it is impossible to distinguish between someone who is truly trans and someone who is just pretending so as to predate
PW - I'm not going to comment on that
NC - a woman who encounters a naked man in the changing rooms etc

cannot know if they are trans or pretending and is deemed to be hateful and in need of re-education if she protests.
PW - I don't have expertise to comment.
NC - now on trans at work policy.
PW - starts to read out loud...stopped.
NC - says all staff must be respectful of the

choices of facility that a trans person uses. And that they shouldn't be critical or questioning.
PW - I don't read it that way
NC - 'must be respectful...treated under the bullying and harassment policy' says that dissent will be punished.
PW - the key point is about

derogatory language
NC - it is a clear instruction to discriminate against a staff member who expresses her GC belief by objecting to a naked male person
PW - I don't see it that way
NC - it would be a very bad thing for colleagues not being able to to deal objectively with

with colleagues or service users.
(repeated 3 times, with lack of answer)
PW - I'm going to give a long answer. There is a particular duty for SWs to be able to deal with vulnerable people objectively, there is a professional duty to deal with those people.

NC - are you saying there is no duty to deal with colleagues and service users objectively
PW - I'm sorry I want to deal with the evidence.
NC - being concrete - do you not think that RM was treated very badly by a series of people in WCC, because they found her views repugnant

PW - I have no idea what their views were, I was only looking at the evidence, I was only looking at whether she could discharge her duties objectively and professionally
NC - I suggest that all of those people out of fear or conviction punished her for her views. And that you

by way of the letter in which you did not absolve her of misconduct, you continued that punishment.
PW - returning to the duties of the appeal officer. It is not within my remit to reassure the claimants. I looked at the appeal purely on the facts, objectively. My letter

reflects my remit. It's not appropriate to read into what isn't there.
P1 - in disc outcome letter RM was told there was gross misconduct, ref to Sec 15, 'loss of confidence', I'm wondering why in reaching your judgement to overturn, why did you not articulate that charge no

longer applies.
PW - I try and express myself succinctly, by removing the sanction, it was clear that the charge that lead to the finding of gross misconduct was overturned
P1 - but it was lifted
PW - 'final written warning removed, no sanction applied' I felt that was clear

and that was what I intended to convey.
P1 - not sufficient to uphold the sanction, referred to the 2 posts, how significant were they
PW - posts not significant in my broad consideration, not wise perhaps, but not misconduct
P1 - but were the 2 posts pivotal to your findings?

PW - it was SWE that changed their mind.
P1 - you had an appeal decision from Ms B who recommended that you upheld her decision, are you saying that it was SWE that changed their position
PW - timing is very important, appeal hearing conducted shortly after SWE changed their

view and when that changed I had to look again at whether the misconduct was upheld.
P2 - now after decision from SWE, decision taken by Ms B was still promoting their position, q to HB - if you had had the SWE decision, would you have had a different outcome. HB was saying

that she could only decide on the facts in front of her.
PW - I have sympathy for that view.
P2 - but when you were having this convo with HB you had the SWE decision, RM's rep was expressing her view,
EJ - decision followed SWE, they had changed their position

if SWE had not revoked their original decision would you have reached the same conclusion that you did, upholding the appeal.
PW - I'm an economist by profession, not a social worker. I would always have reference to what the professional body had to say, hard to answer

a hypothetical.
EJ - back to the need to be discrete and be kind, if a social work on her private FB page, said reasonable corporal punishment from parents was okay. What if social worker posted that, it is still the law.
PW - I would struggle to answer that. And the point on

on discretion and kindness is to remind us of our obligations. I can't really answer that without complete contest.
(general discussion about timing and witnesses)
Hoping to complete witnesses today.
Afternoon break. Back at 14:40.

We are back.
Next witness, Rachel Soni, RS, WCC.
SC taking her through affirmation and authenticating witness statement.
NC - asking about the suspension.
(finding the relevant page in the bundle)
Have you seen this - short passages only, letter to NHS trusts, sad

occasion when someone found guilty of gross misconduct took own life, a lessons learned letter, additional guidance on oversight & local investigations, do you agree with par 5 that says decisions to suspend or exclude by 1 person alone, anyone with a possible conflict

of interest, suspension is a last resort, only when safety is a concern. Do you agree with that?
RS - yes, it may not be exactly what our policy says.
NC - do you agree that suspension is an incredibly serious matter and will hit an employee very heard.

RS - yes, I can see that
NC - first risk assessment completed, RM suspended before you were involved, this risk assessment was done by you in Feb 2022, you did this and looked at matter afresh?
RS - yes
NC - you ticked 'bullying/harassment' , why was that

RS - I retained the yes to 'bullying/harassment' and I determined that there was a risk of it.
NC - what type of bullying or harassment
RS - not actual but the possibility of it
NC - but specifically, i'm trying to make it very concrete, who might harass whom
RS - its a risk,

not an occurrence, I ticked yes, because I saw the risk that someone might have found out about the disciplinary, etc
NC - but what specifically were you worried about
RS - if the person was in work, they might be subject to being uncomfortable
NC - you also ticked that

the suspended person was at risk of physical harm, what specific harms were you worried about?
RS - it's a risk assessment, and she might be at risk because of the FTP process
NC - you rated the risk as high, who was at risk, and from what
RS - it's the whole range of the person

service users.
NC - you said 'high risk of an incident occurring with the potential for severe consequences' what kind of incident could you have in mind
RS - recurrence of previous behaviour. What was the other question?
NC - you've answered.

NC - but the misconduct was to do with social media, nothing to do with the workplace or conduct with service users.
RS - well it was the fear of a recurrence
NC - so you suspended her, left her with nothing to do all day and thought that would keep her from posting on Facebook

RS - not the point
NC - it says cannot visit workplace or have conduct with colleagues other that through investigating officers.
RS - that's standard
NC - IO did not speak with any colleagues during her investigation seems strange that she couldn't talk with colleagues

NC - referring to another document, instructing RS to read., this doc is the response from WCC to a letter from RM & solicitors about continuing the suspension.
'untenable for your client to continue, given severity of allegations, minimise contact with vulnerable persons'

and not interfere with colleagues involved in the investigation. I'm asking for your view if that was obvious nonsense, that it was important to minimise C's contact with colleagues because none of them were interviewed as part of the investigation.
RS - no, it's not clear how

the investigation was going to proceed.
NC - and also the minimise contact with vulnerable persons, no allegations from her contact with clients.
RS - its about risk assessment, and we need to look after the vulnerable persons
NC - but point of guidance is

that it is very important to get it right with suspensions.
RS - it's important to protect the employee and the vulnerable persons
NC - nowhere have you indicated what the alternative course of action might be, the obvious alternative course of action is to not suspend her.

RS - we did consider if there was a back office role, we did consider all that, but given the severity of the allegations, we decided to proceed with suspension.
NC - the regulator has the right to issue a suspension order while investigation is ongoing, is that right?

RS - yes
NC - the regulator did not suspend her, suggest she be removed from the practice register, you decided to suspend her, why did you feel that you knew better
RS - I didn't suspend her, I continued the suspension
NC -no more question

P2 - did you cause the letter to be written to RM about the suspension
RS - yes, I knew that she would be written to
P2 - 'held unacceptable views' what do you mean by that
RS - we were talking about possible discrimination and how the finding of fact would come out

People in a vulnerable state might become aware of the matter, withdraw from the service, not raise a complaint but not be helped
P2 - but it says 'holding' views, not expressing
RS - holding on its own, not helpful
P1 - the posts had been taken down, there was no way in that

a user could see the posts.
RS - we need to go back to the finding of SWE, that she could be impaired in her professional practice
P1 - so the allegation from SWE, the investigation was sufficient to call for a blanket suspension
RS - the regulator was considering her FTP

we have a duty to our vulnerable persons
P1 - but this is nowhere articulated in anything in front of me,
RS - the risk assessment is standard unfortunately
EJ - was any consideration to given to any individuals in the trans category being reassigned to another SW?

RS - that sounds reasonable, but we wouldn't know what protected characteristics a service user has, it's just not practical
EJ - any idea what percentage of service users are trans
RS - no
RS evidence concludes.
Next witness is Donna Barry (DB), SC taking through formalities.

NC - want to ask you about continuing restraint on C's freedom of expression on return to work, and (missed the second)
It is fair to say that at the point at which she returned to work that RM was shaken, distressed, traumatised by the process on her return to work.

DB - yes it is fair to say that she was very distressed
NC - and you were worried about her ability to work given her emotional state
DB - yes
NC - conversations had about RM's return to work do you know anything about that.
DB some had different views, there might be tension

there could be some conflict, but I wasn't part of those convos.
NC - did you advise the team that her GC views were protected characteristic
DB - no, but I did email the team telling them that I expected them to welcome her back to work.

NC - it was clear on RM return to work, that her GC views were problematic and should be kept as quiet as possible
DB - no, thats not true. She came back on a two year final written warning, I was worried about from her perspectives. I was also worried about the welfare of all

the team.
NC - you say team should not express views that create conflict, but aren't there times in the workplace that people have to say things that may create conflict, to discharge safeguarding or regulatory obligations
DB - may be need to discuss specific situations

with regard to service users.
NC - but she was a whistleblower and whistleblowers are not very welcome in the workplace, it creates conflict
DB - we would deal with that under our bullying and harassment at work polices.
NC - example of whistleblower, expense claims,

would that not create conflict in the workplace
DB - well, we would not shut that down
NC - but isn't conflict in the workplace inherent in frank dialogue
DB - it's all about context
NC - lets go back to the beginning of this story

NC - your email, on investigation, it seems what has happened is that you had a call to understand what had happened,
DB - not exactly, I had an email, then I had a conversation with Chanel after I received the report and was concerned by the contents,

NC - that's not a good fit with what we see here on the page. This wasn't the first time you've heard about this
DB - that's correct
NC - its not very consistent with you thinking it's serious and needs escalation.
DB - I disagree, I was aware that RM was being investigated by

SWE for discrimination and I should have escalated to HR earlier. I realised I made a mistake when I read the report that I should have advised them sooner. I was attempting to mitigate my failure in this email by explaining what actions were taken.

NC - but Chanel was very concerned and believed that it merited immediate suspension of both you for failing to report and RM.
DB - I didn't take that decision, I can't comment on its harshness
NC - I think it's a better fit that Chanel found out about this matter via other

means, and called you.
DB - that's not how it happened.
NC - the question is offering you the proposition that you notified senior manager
DB - I did
NC - it's a leading question, you accept the offer that you took the initiative to report to senior management

DB - I did report it
NC - when you got the report, you realised it was more serious, your account is not consistent with the correspondence and your approach 'nothing to see here'
DB - I don't agree in mitigation of my failings, some actions have been taken,.

NC - the paper trail suggests strongly that someone outside WCC had notified them about the investigation. SC put it to C that SWE had notified the WCC.
DB - I don't know
NC - there are 3 important witnesses that could shed light on this, and we have not been able to hear from

them. (says not a question, I'm finished)
P1 - did you tell the staff in your email that controversial subjects should be avoided,
DB - I don't think so, I used more general language about expecting everyone to behave professionally
P2 - how could her social media impact on

the workplace environment? Again she was expressing her views outside the workplace.
DB - it was more the general point
P2 - your communication with C that behaviour outside the workplace was relevant and any concerning behaviour would be escalated immediately.

What did you mean by that
DB - to protect RM as well, so that if anyone treated her inappropriately we could act on it immediately.
DB finishes.
SC - taking through formalities.
Next witness is Claire Weeks, WCC - CW

NC - its not showing respect for others opinions, its about it characterising GC views as unacceptable isn't it?
CW - it's not saying that, its saying be mindful
NC - but if you discourage the expression of GC beliefs than it is discriminatory
CW - it's not about the expression

its about the manifestation and how that is expressed. Need to be respectful.
NC - 'must be careful about what you say and how it is expressed, race religion, etc'. All part of social media guidance. Applies to everyone from chief executive to catering staff.
CW - yes

NC - it can't mean that they don't have the right to express their beliefs in a robust manner and argue for their beliefs.
CW - its not about the beliefs its about how the expression might be manifested
NC - the guidance on suggested privacy settings, isn't to say that

employees cannot publicly express views.
CW - its to remind them that they are public employees, and they need to be mindful
NC - 3 examples of what is not acceptable on social media. What is the point of these
CW - we had no GC cases at this point, these relate to 3 very

different protected characteristics
NC - says 'everyone deserves respect at work' - hard to argue with
CW - yes
NC - how many of your staff are trans?
CW - we don't record that data
NC - but you're a Stonewall champion
CW - I don't think we ask that question

NC - so, census is less than one percent trans, so probably that's the proportion
CW - yes
NC - the belief that people can't change sex and women deserve single sex spaces is a mainstream view
(back and forth, accepted by CW as mainstream)

NC do you agree that you are likely to have a much higher proportion of staff that have GC views than otherwise
CW - yes, I would accept that
NC - it's important to make your GC staff feel safe at work.
CW - we pride ourselves on being a diverse employer

NC - given what has happened with RM, do you think your GC employees feel safe at work
CW - I don't think that RM's case is well known outside her immediate circle
NC - you were members of Stonewall scheme
CW - we left in July 2021.

NC - but your trans inclusion policy clearly shows the hallmarks of Stonewall
CW - it was developed through our staff networks, LGBTQIA+ I don't know if it's consistent with Stonewall views
NC - trans inclusion polices, must respect staff choices on use of facilities, any man

can use the women's facilities.
CW - yes
NC - that is fundamentally unlawful isn't it, you're required to provide separate single sex facilities.
CW - many facilities are separate cubicles etc but yes not lawful.
NC - on to RM case. Did you regard this as an usually difficult

case?
CW - yes, I was mindful of my role in supporting PW to hear this appeal, and I did brief him on the case and his role in taking it forward
NC - no minutes of that meeting
CW - I didn't take any minutes
NC - none have been disclosed

NC - and there was no written preparation or notes for that meeting despite the complexity.
CW - no
NC - you provided PW with HR advice in this matter
CW - yes, I was careful not to influence his decision, I reviewed his decision once it was documented
NC - was there a written

draft?
CW - no I don't recollect one.
NC - was there a policy not to create a paper trail on this matter?
CW - no there was not
NC - was this not the outcome of a dawning realisation that Forstater left WCC in an untenable position

CW - no I disagree. The appeal shows that our processes work and we review evidence and relevant case law.
NC - did you brief him on Forstater?
CW - no, it had happened much earlier and I think he was aware of it
NC - the letter has a continued chilling effect on RM's

free speech rights? and that she was let off because it happened a long time ago and it was private anyway.
CW - In hindsight we could have gone further in the letter.
NC - can you go further now and confirm that what she posted wasn't misconduct and would not have been

even if she had posted it publicly.
CW - Its not appropriate for a council on an inclusion journey to give our employees the right to say anything at any time.
NC - but I'm not asking you to do that, I'm asking you to comment on RMs post at this time
CW - we respect RMs

GCs views.
NC - now going on to staff networks. Are these networks enthusiastic supporters of management and HR.
CW - we work with them, we are on a EDI journey. We give them a small budget,
NC - if your GC staff set up a network would it get the same facilities?

CW - each request considered on its merits.
P1 - is this the first case of a SW being referred to their regulator?
CW - I think there was one earlier, but I don't have the details
P1 - is this suspension exceptional in your experience in length?

CW - yes, there are complicating factors here.
P1 - did you look at the letter before it was issued and discuss the issue of misconduct and the original finding
CW - I did and in hindsight he could have addressed this.
P1 - he didn't address the individual grounds of appeal

in the letter, should he have
CW - in hindsight, it would have been clearer.
EJ - you said that GC beliefs are mainstream but not within WCC, is that correct
CW - I was not aware of this as an issue a belief or that anyone held these views in WCC

EJ - you did not respond to NC's question about the outcome of the appeal, had it been posted openly on social media, would that be acceptable or not?
CW - I don't know we'd have to consider that case on its merits, its very difficult to comment on that.
EJ - no more questions

EJ - evidence is concluded, well done.
Now discussing arrangements for submissions. Please email submissions when ready (hopefully by 12 pm) and we will convene at 2 pm unless otherwise agreed.
Ends for today.

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