Thread by @tribunaltweets

Final day today in the employment tribunal of Rachel Meade vs Westminster City Council and Social Work England. Submissions (closing arguments) today from Naomi Cunningham for the claimant and Simon Cheetham for the respondents.
Expected to start at 2 pm.

Our previous coverage here: tribunaltweets.substack.com/p/rm-v-westmin…

Submissions are difficult to live tweet as the barristers are speaking from prepared remarks, with frequent references to case law, documents in the evidence bundle and the like. Tweets will be focused on the main thrust of argument.

J - Employment Judge Nicolle
RM or C - Social Worker sanctioned by SWE
NC - Naomi Cunningham, RM Barrister
SWE - Social Work England
SC - Simon Cheetham KC, Counsel for SWE, WCC
WCC - Westminster City Council
JB - Julie Bann, solicitor, WCC
R - SWE & WCC

Revised start time of 2:30 pm.

About to start.

SC - I believe I go first.
(until otherwise is SC speaking)
You have read our material. I'm in the face of no objections, I'm going to fairly short and concise. 5 or 6 points that I wish to emphasise.

Appearing for both Rs. As you will have seen , I have felt it necessary to reflect on their different roles. Not suggesting different tests when considering discrimination. But very different roles. Tribunals very familiar with employers, not so much with regulators.

Regulators have a statutory purpose, they are more concerned with the profession and reputation rather than the individual. They are subject to their statute. One aspect of this is a lack of flexibility - they must follow the statute. The regulator is responsible to its

oversight body. It is seeking to maintain public confidence and therefore it's findings are required to be made public. Relevant also to that - it is valid to say of an employer 'what do you think that employee meant to do', there is no personal relationship. There is no basis

to say to the regulated person - what did you actually mean?

The regulator must rely on what it is told by the regulated person. In relation to C, did they place reasonable reliance on what they were told by C? Should they have tested what they were told by the C?

One cannot ignore the fact that RM accepted almost everything that was put to her at the point. She accepted the outcome and undertook remedial training. Staying with the regulator - the process it followed when RM sought to undo her acceptance, it was no surprise that there

was no straightforward process. It couldn't simply say 'it was a mistake' and set aside the outcome. You might say their process was unwieldy and they had to wait for new evidence for an appeal.
2nd point - how all of the witnesses have given evidence

coming into this case late myself, I was struck by the fact that all witnesses have given evidence in a helpful and open way. Their demeanour was everything the tribunal might have wished for. Including RM in that description.
As an example, on managing RM return to work,

it was treated as a sensitive and difficult matter. They were dealing with a confidential matter and now find themselves criticised for not telling their teams to respect RMs gender critical beliefs. This is not a battleground in the gender debate.

These are not hate filled ideologues, but ordinary people in middle management roles, trying to do what they felt best and obtain the best outcome for RM return to work. It was the ordinariness of this evidence that struck me. The reality is that her GC beliefs weren't an issue

just two junior managers trying to get their teams to work effectively.
3rd moving on to the factual basis - there is very little dispute about what happened to RM - there's a lot of debate about why that happened but now the timeline or not.
4th point - what has been conceded

There was a late concession about RM's gender critical beliefs, I accept that there was a late concession about her gender critical beliefs. It shows where the focus of this case should be - not her gender critical beliefs. She is entitled to hold these beliefs and they are

protected. It was a late concession but it was a proper concession. There was also a question of jurisdiction, and I'm not proceeding with that because there is no realistic prospect of success.
I agree that you will be asking yourself the same questions about direct

discrimination in Higgs v Farmor's School; now on to the manner of expression of beliefs vs the content of the expression. Its an obvious point that those lines have been blurred in this tribunal, both in questions from NC and the Tribunal. And the manner of expression

has been blurred by the witnesses, there was a blurring of lines. Both respondents say, as a whole, it was the manner of expression that lead to the initial investigation by the regulator, the findings of the regulator and actions of the WCC.
There has been a shift in the

arguments over time. Maybe the Tribunal finds that the context has changed over time and you might criticise behaviour of parties.
SC - my oral submission is finished, do you have any questions for me?
EJ - I have a question about comparators;
NC - I'm not relying on him

discrimination cases always end up relying on hypothetical comparators.
(some complicated discussions about comparators, not relevant to case).
EJ - speaking of topical matters, I've counted four separate articles or matters in public discussion on this issue.

P2 - raises a question on statutory appeal jurisdiction, SC says he's not taking it forward.
Now NC.
The overarching point that I want to make is about holes and silences in the evidence and the document. The silence about earlier drafts of the first report. The striking out

of evidence of several witnesses from the record. And it was the more senior managers from WCC that gave evidence. And the reticence of a witness, not telling her line manager about the disciplinary matter. It seems odd that Flaherty did keep notes or notify anyone.

The extreme reticence of how WCC came to know immediately about SWE's decision.
The unavailability of several key witnesses is also strange. Neither R made any attempt to find the original complainant, he has not been here to answer those challenges, and has been subject

of severe criticism for using his regulators disciplinary process to punish RM for her views. And where is Jack Aiken? He seems to have done no investigation, it was woefully inadequate. It was strikingly accepting of the hysterical and hyperbolic claims of AW (complainant)

We had been asking SWE about this witness since well before the November strike out hearing.
Was there a relationship between Jack Aiken and AW? They were known to each other, may have been friends, this was not known to BF at SWE. BF said he was disturbed by this knowledge

EJ - but then he retracted that statement on re-direct.
NC - So we were missing key players. SC said that SWE couldn't just say 'we made a mistake', and their statutory position does make it difficult and they are struggling to get themselves out of this cul de sac.

Ms Rose insisted they needed new evidence to revisit their decision. I submit that's is not the case and they simply could have reopened, submitted no evidence and dismissed.
I think they realised that AW was going to be a real liability as a witness, his social media output

made it clear AW is a committed TRA that used the SWE process to punish RM for her views.
When SWE realised this they screeched into reverse and their 'new evidence' was astonishingly threadbare excuse to discontinue especially when you compare it to the enormous momentum that

build up at SWE, as documented in their 'statement of case', I invite you to study that in some detail. That document does a number of things, it demonstrates that SWE is wholly signed up to gender ideology movement. Frequent reputations of 'this may give offence' is not

designed to refute arguments but rather to make certain things unsayable. Now on to a quote from an authorities. The role of authorities is to ensure that the groups tolerate each other, references to pluralism, fair and equal treatment, etc.

The statement of case does not seek to engage with the issues but simply repeats over and over that things may give offence.
Someone did a lot of work, choosing the 21 posts from the 70 possible, following the links, incorporating the quotes, everything about the document

is seeking to punish RM for saying these things that should not be said.
Once you grasp this momentum, the paper thin new evidence could have never stopped this moving forward. This new evidence was put forward 3 weeks after RM's case was put forward. The graceful thing

for SWE to say to the adjudicators was to say 'we have no case to put forward' The graceful thing for SWE to was withdraw and apologies. The asymmetry here is striking. RM accepts that AW is right to advocate for his point of view on social media and elsewhere. It's the gender

identity creed that is attempting to silence and shut down debate.
(now moving on the responses to SC submission)
1. What SC is setting out in detail, it is not acceptable for public bodies to rely on sensitivities of hypothetical service users to limit their employees free

speech and expression. That does not arise here, there are 120k social workers in the country - their clients will have the full gamut of opinions, beliefs, characteristics, preferences etc.. Social workers clients cannot police the political and democratic engagement of

social workers as clients of any professional cannot police of their service providers.
It can sensibly said that anyone who works with people for whom the question is becoming urgent can't have strong opinions for example on assisted dying.
It's worth noting that the

evidence from a witness
"SC- I'm less clear how this reflects GC beliefs, witness said it's more about predatory males and keeping women and girls safe, RM stated this was from Private Eye again, didn't have anything to do with trans community, more about the lengths to what

predatory men will go to get access to children"
NC - it was about the proposed reforms to the GRA to bring in self-id, it was completely related to the trans debate and trans community. It would create a loophole. The slur repeated against the GC point of view is the GC say all

trans people are pedophiles when it simply is not the point. It is about self-id creating a loophole that predators will exploit.
All of SC's witnesses were convinced that cartoon was about the gender identity debate.
The complaint was obviously ill founded, should have been

struck out, it was intemperate, the posts should have been examined, and seen to be reasonable. Objecting to the idea that women should be consulted about changes to their rights is transphobic and ridiculous is patently ridiculous.
Now on to RM initially accepting the findings

of the regulator, its wrong to say that the terrified social worker, worried about losing her job and livelihood, it is wrong to expect her to assess the claim, defend her free speech, especially at the time when it seemed to be open season on gender critical people.

It was for the regulator to notice that this was a spurious and ill intentioned complaint, it was obvious that RM had been bullied into accepting the findings.
The regulator doesn't need a personal relationship with the social work to understand how terrified and compliant a

person might be when under investigation.
The case examiner removed the reference to Graham Linehan, and shouldn't have known that RM was intending to challenge. But they should have used the opportunity to revisit their original decision and evidence, Forstater decision in

June, original decision in July, reopened in August. SWE is imbued with GI, they must have known about the decision. They must have been aware that it was a manifestation of a protected belief. They should have reopened.
GN's personal disdain for C's belief came across with

great clarity when giving his evidence and he found GCs distasteful.
It's very surprising that the case examiners had no legal advice.
It might be unremarkable that a statement of case is prepared and that there were 100 cases going on at the time. But it is a disgraceful

document and it treats any expression or manifestation of gender critical belief with disdain, as that which must not be said.
SC has said can't read too much into membership of Stonewall and references the membership of Stonewall's diversity champions scheme. This is not a

measure of how appropriate Stonewall's advice etc is, but it is a measure of the degree of institutional capture of this ideology.
EJ - it's not just public sector, many private and corporate as well.
NC - yes, please feel free to read the complete list of Stonewall champions

at @SexMattersOrg.
And Stonewall has persuaded WCC to violate workplace health and safety regulations and eliminate single sex toilets. It's a measure of the power of the diversity scheme.
And on the protecting vulnerable people - no one so vulnerable that they should be

@SexMattersOrg protected from beliefs they disagree with.
Now on to the suspension which was formulated to attack her for her GC beliefs. And WCC had plenty of information about her and did not need to suspend her.

@SexMattersOrg Including testimonials from her managers and her 20 years of employment history with WCC.

10 minute break just finishing.

NC continues.
SWE didn't suspend C but then WCC did suspend her. WCC suggesting that she should be suspended so that she couldn't interfere with witnesses. The suspension reviews were wholly tickbox exercise. It doesn't matter why they did this. All of the signs were that

WCC was gearing up to dismiss her. And she wasn't repentant. What they had on her hands was an employee who was fighting back. If you really think she was guilty of gross misconduct you would not give her a written warning but you would dismiss her.

The written warning went out at the end of June. And the Forstater judgement was early July. And Forstater decision had been spun on social media as so toxic but just inside the Grainger criteria within TRA twitter. She could hold them but not express them.

But the actual Forstater judgement made it clear that was not the case. C could hold the beliefs and express them and be a bit rude and use ridicule.
The circumstantial evidence of the dates and the changes in behaviour is very strong.
It's astonishing that WCC chose to

investigate the complaint at all. The framing of the complaint was wholly about holding the views, supporting similar orgs with discriminatory views etc.
The framing of the charge and the statement of case make this clear.

The suspension continued, SC said, because of an ongoing process. It doesn't matter if it was because of the investigation of the views or the views themselves. Its up to you (tribunal) if its discrimination at that point or not.
One para deals with a detriment I haven't

pursued.
In defending proceedings brought by C still in employment there is always going to entanglement between the process and the discriminatory behaviour. It is offensive that WCCs lawyers repeat the allegation that C might be a danger to patients.

On the final written warning -you may think that as Forstater implications became clear it was drawing back from dismissal.
I'm not alleging that the witnesses conspired against RM. Conspiracy is boo word. There is such a thing as an institutional culture and a discriminatory

institutional culture at SWE and WCC.
The return to work evidence make it clear that her ability to express her views was still suppress. The refusal of the witnesses to confirm she had done nothing wrong and to tell others she had done nothing wrong. Instead they insisted

that she had to play Battleships when trying to express her views. They weren't going to tell her what she could and couldn't say and seek to punish her if she got it wrong.
SC seeks to explain that the reticence of the witnesses on apologies or hypotheticals by the fact that

proceedings are being live tweeted. Any employer is subject to open justice in an employment tribunal. And given the nature of the issues in the cases - there is a great deal of public interest in this matter.
EJ - now speaking about whether trans people have surgery

and how women's opinions change if they are aware that the TW have NOT had surgery. Is that relevant?
NC- I couldn't answer that without giving evidence.
But I could say that it's not relevant if TW have surgery, what proportion have had no treatment etc

the point is that must be allowed to be discussed.
EJ - asking about the disconnect between the Stonewall interpretation of the Equality Act and the accurate interpretation of the Equality Act. Is it relevant?
NC - there is a general misunderstanding that failure to treat some

one with the pc of GA as if they were the opposite sex is discriminatory. But we need to be able to discuss these matters in public to arrive at a resolution.
EJ - do we need to comment on the Stonewall interpretation vs the law? Goes on to discuss the GRA and requirements.

SC - several small matters
- I'm not as informed as either of you on the debate and I'm not sure if Stonewall's interpretation of the law is relevant.
And about the witnesses who were not present, one is on honeymoon and we were not obliged to call the original complainant.

Now refuting that no service user is so vulnerable that they should be protected from beliefs that they disagree with. The problems a local authority has to face with service users as vulnerable, needing help, and its a balancing act that needs to take place.

EJ, SC, NC - now discussing various legal matters in the documents that can be struck out. We don't have that document.
EJ - a few final things, also asking about C's solicitors notes, is SC happy for the tribunal to rely on them.
SC agreeing.
EJ - now seeking dates

for the Tribunal to reconvene is 7,8 November. Various conflicts. Promises to get a judgement as soon after that, before the holidays. Now discussing dates for remedy hearing if needed. 1 or 2 days?
NC - prudent to schedule 2 days
EJ - 12 & 13 February for remedy

EJ now thanking the barristers. Wrapping up.
Hearing concludes.