Thread by @tribunaltweets

We will be live tweeting the remedies (damages) hearing of Rachel Meade (claimant) from the Central London Employment Tribunal this morning. The respondents are Westminster City Council (her employer) and Social Work England (her professional regulator).

A remedies hearing presents the same challenges as submissions; it is barristers presenting arguments, citing case law and having discussions with the judge and panel. It is difficult to live tweet, we do our best in good faith to report on proceedings.

A reminder that 'live tweeting' is not a transcript or a verbatim accounting of proceedings and should not be relied upon as such.

Tribunal Tweets is a collective of volunteer reporters who bring proceedings to the general public in the interest of open justice. Please consider supporting our work - here tribunaltweets.substack.com/p/support-the-…

Abbreviations:
P - member of Panel
RM or C - Rachel Meade, social worker sanctioned by SWE (Claimant)
NC - Naomi Cunningham, Counsel for RM
WCC - Westminster City Council (R1)
SWE - Social Work England (R2)
SC - Simon Cheetham KC, Counsel for R1 & R2

Proceedings are scheduled to begin at 10 am.
We are unlikely to start on time as many main participants have not yet arrived.
Will keep you posted.

Our coverage to date is here:
tribunaltweets.substack.com/p/rm-v-westmin…

The location of the Central London Employment Tribunal. It's looking like a start at 10:15 am.

We are in the hearing room and starting.
J - there are additional authorities from both sides
(papers being passed around)
(additional observers entering the hearing room)

J - Mr C over to you
SC - you've got my written sub on remedies, let me deal in my oral subs with the points discussed yesterday aft.
NC talking about SWE as a paradigm for exemplary damages. I disagree with her. First there must be a threshold.

SC - she says there is scope for malicious damages and C was generous in not seeking it. She can't hand wave it in as part of submissions
J - now discussing -
NC - you said malicious damages you mean exemplary
J, SC - yes that is understood
SC - however case law is in the way

SC - Lord H said that the inescapable conclusion is that only one sum can be awarded for exemplary damages. Undeniably C has elected to sue more than one defendant in the same action. No avoiding that conclusion. C could have avoided that. She could have claimed

exemplary damages against both but changing to that mid submission is not correct. The law stands firmly in the way. C could have brought separate actions and had them heard together, could have sought exemplary damages against each.

SC - referring to Kudis, where joint wrong doers are sued. Refers to vicarious liability, but we're interested in the point of 'joint wrongdoers being sued together'.
On this first point, C chose to sue both, cannot claim exemplary damages against both, its an unattractive

argument they are using to get around the case law.
SC - now on to divisibility. Quoting a case that says the injury needs to be indivisible not the acts. The tribunal does not have the power to apportion the damages, you don't have that statutory power. You can give

two separate awards but you must be able to identify the separate injuries. It's injury to feelings that cannot be a separable injury. C has said 'distress etc' she cannot apportion that between regulator and employer, say half each.

SC (speaking very quickly, doing our best here)
Now referring to schedule of loss in original bundle, single sum for injury to feelings as against both respondents. Up until very recently she was seeking a single sum for injury.

In fact up until the submission of this claim for damages.
SC - yesterday C said acts were 'intertwined' and Miss C used the same language.
Even if the awards can be divided it doesn't follow that the amount for 2 separate awards should be greater than a single award.

SC - we are looking at the indivisible award that cannot be apportioned between the Rs.
SC - we must disregard hyperbole, C said WCC offering to settle was terrifying to her, but we never see this kind of 'without prejudice' correspondence. And a party seeking to settle wants

to settle, not to terrify.
SC - C did not settle because WCC would not accept liability. C has chosen to disclose without prejudice correspondence but it is hyperbole and doesn't take her where she wants to go.

SC - now on to amount. I suggest that the middle band of damages is the appropriate tone. There are aggravating factors; length of time, the hostility, etc. The figure I am suggesting is £20k that feels right to me.
Now on to aggravated damages:

SC - J Underhill said there, many tribunals have adopted, you will be familiar with it
P - what page?
SC - says 'doubtful about tendency to award aggravated damages, and we should follow the Scottish approach of including aggravating factors in determining the single award'

SC - agg damages are not punitive like exemplary (ex) damages. Our position is that there is no basis for aggravated damages, obvs there are aggravating factors and you (tribunal) are going to take them into account.

SC - now on to NC's points on ex damages. With respect this in not a public enquiry, its an employment tribunal. Now rebutting points.
SWE witness not attending - the written evidence was adequate, what benefit would that bring to the tribunal

And the chief ex of SWE not attending - he was not required to attend. You cannot infer from this that SWE is 'not impressed' with the judgment, that they are attempting to minimise the judgment, that they will continue to silence social workers. That is a lot of inference.

SC - C, her lawyers, her supporters find this judgment hugely significant. But SWE is still considering their response. They respect the tribunals decision but they can and do disagree with portions of it. I do not see how you can draw those inferences.

SC - now on to RMW's social media and the rather badly written article in a journal I'd never heard of.
RMW has nothing to do with either respondent in this matter. How does his social media activity impact us.
The tribunal is being asked to make this case 'seismic' for SWE

I know this case is being live tweeted, I know there is a gallery out there but this is not relevant to the tribunal. Your job is to conclude on the matter of employment.
Now on to costs.
SC - you are invited to be the first employment tribunal to award costs.

and why might that be? Because the law stands in your way. The amount is limited to the amount a county court might award as tort. In a tort, legal costs can only be recovered in limited cases. This is clarified by Macgregor. And I've referred you to a learned article

by Professor Merit (sp?) that gives 2 exceptions to this rule; where a third party is involved (professional negligence) and (missed it).
SC - you were taken to Willers which is a malicious prosecution. And it is very very narrow that the excessive costs in defending a

malicious prosecution can be recovered. We are know where near that at all. It deals with something completely different, malicious prosecution often results in criminal proceedings - we are no where near that.
Dismisses another authority with the same authority. In tort

costs cannot be recovered as damages. I'm not suggesting that every item should be struck out. The tribunals discretion in respect to the ambit of costs is wide, some if not all of those costs would come with the scope of damages. Not only could she include those costs in her

claim but she must do so.
SC - in employment law, matters are encouraged to be dealt with without the presence of lawyers, it doesn't prohibit it but does not require it. So if someone choses to involve lawyers early on, those costs will not be recovered. C faces an

insurmountable burden here. The law is against her.
SC - there is no guidance on how to treat crowdfunding. I've scoured the authorities, it is not there. We are talking about damages here. And C's losses. If the fees go from the crowd funder

to the lawyers, there is no loss. What is her loss.
There has to be a difference between insuring for legal fees and crowdfunding - insurance needs premiums and is a risk based activity. There are all sorts of issues on crowdfunding therefore.

The fact that C's claim has to do with gender critical beliefs means it has media attention but does not change the tribunal's task.

Now on to recommendations sought (segue into and out of the law) now back to specifics.
Firstly with WCC, there is a recommendation for training. There is no resistance from WCC, no issue, the wording is a matter of view for you. The second that WCC should apologise to 2

fellow employees, they have both left WCC, that is not a matter that reduces C's distress, it has to do with those employees. So I disagree with that.
Push back against - shall publish on its website the judgment and state that all soc workers are free to engage in debate,

and discussion.
And that the triage processes are subject to internal review and take account of the above. I don't know what that means or how they can be implemented.
SC - that's my submissions, I said I was doing to take an hour and it took 55 minutes.

J - now asking about ex damages against both parties, the tribunal has the power to introduce those, this isn't an application to re-plead an existing case. Are you saying we don't have the power
SC - I'm not saying you don't have the power because you do. I'm just saying

that its a way of circumventing the law.
J - now on to RW tweets, it potentially negates that former counsel had skin in the game, we haven't been invited to consider that counsel was selected because of a commonality of view.

SC - I'm aware of a number of people typing what i'm about to say ........I cannot see the gain of any lawyer commenting on a case in which they have been instructed and I cannot see its relevance to you (the tribunal).

J - now on to the crowd funding,
SC - I think it's relevant to costs as damages because there is no damage, but not costs as costs per se. I'm trained to assess costs one of the most boring weeks of my life - I simply don't know how judges have been instructed to deal

with crowdfunding. It would be going too far to 'cut off' the bill if there is funds available. We are in a rather difficult position on to how to deal with crowdfunding. There will need to be guidance on this. I've found 2 cases to do with crowdfunding - neither helps us.

SC - you are in difficult territory, if you make a definitive ruling - on what authority? On costs as damages, I'm clear. I'm not clear on costs qua costs.
J - yes, now comparing to litigation funded by friends, dismisses champetry as not relevant.
J - any reply NC?

NC - on ex damages, SC said she could have brought separate actions and had them heard together and refers to consolidation. Well, these claims were heard together for proportionality and fairness.
Case law - on the ex damages in vicarious liability cases introduced in joint

wrongdoing. These are not joint wrongdoers. They are separate orgs, acting separately. It's not like an ET where another employee aids and is involved in the wrongdoing of the employer.
These are distinct orgs, acting separately. Each of them committed its own wrongs.

And they could not contribute to each other; SWE was her regulator and not her employer. WCC was her employer and not her regulator. They are indeed intertwined but not merged. They are distinct. SC is wrong in that whether these were heard together or separately

does not, cannot make a difference in how damages are awarded.
NC - on witnesses attending - because apology was genuine and accepted as genuine, there was noting Mr. B had to say to the tribunal, is completely wrong. The apology was inadequate on its face. It doesn't show any

real engagement with the issues, any desire to understand the gravity of the problem or find remedies.
NC - I wished to x examine Mr B, when it was suggested he give evidence and in any event he did not give evidence. The fact that they did not provide any senior employee

to rebut the allegations and the culture of silencing. They have silenced 120,000 social workers.
No witness from the liability phase was prepared to say that C did nothing wrong with her facebook page. And I repeatedly invited them to do so. Without any of those confirmation

confirmations, without those clear statements that RM did nothing wrong and indeed it is important for social workers to speak about this matter. The chilling effect on free speech and expression remain without those confirmations.
Now on to AW's own social media engagement

openly as a social worker has been vigorous, intemperate and inappropriate. No sanctions and no complaints have been made. Thus the chilling effect continues.
J - we are precluded from making instructions that do not obviate the direct harm to C
NC - C feels guilty about

the harm her actions did to her managers (2 employees who have left WCC), and it's for C's feelings that we seek these apologies.
J - what about the review of the disc and triage processes
NC - well she hopes not to be in this position again, but it's not beyond possibility

that she will be. The chilling effect continues because C is likely to steer well clear of the 'boundary' of what is and is permissible to say? She needs to know where the boundary is. The refusal of witnesses to accept that she had done nothing wrong makes it clear that

they want to boundary to be 'fuzzy' and thus expand the chilling effect.
NC - now on to financial loss (everyone reading financial schedules)
Once something is shown to be litigation costs, it cannot be part of damages, the tribunal has limited jurisdiction to award costs.

Precisely because the tribunal has no jurisdiction over the earlier costs because they are not litigation costs, they are part of the injury. (now reading out rapidly from a section costs, not following).
It is self evident that the same applies in employment tribunal

a digression from my main point - this is a completely different case from that malicious prosecution. I disagree with that. It is exactly analogous. She was subjected to discrimination by the proceedings. The claim is you did something bad to me in the past and I now want

damages for it. It's is on a par with malicious prosecution and the proceedings from SWE were only undertaken because of a hostility to her GC beliefs.
Now back to recommendations: announcement requested on SWE website and social media on freedom of speech for social workers,

, Mr C said that was so broad and could not be drafted. I say we have drafted it for them - or the tribunal could find it's own form of words. It is that social workers can engage in this debate, provided not intemporate or abusive, we are asking them to say there is a level

playing field and both sides are allowed to comment on this with risk of regulatory investigation.
NC - a request that the training should be provided by a trainer chosen from a list provided by the C. That is necessary because so many practicing in this field do

not accept, downplay or resist the decision in EAT on Forstater. The 2 data points we put before you on RMW's social media output and the New European article written by a barrister, (now taken down) shockingly illiterate on the law. So if they requested training from

the author of the article
SC - no one has suggested they would chose that person
NC - I'm just saying that so many in this sector such as Stonewall that would not give appropriate training.
J - a couple of questions. Are you asking us to give effect to the wider situation

to give cognizance to the wider environment, to give a seismic award to recognise the restrictions on freedom of speech.
NC - I'm not saying that the award needs to seismic in size, it needs to be seismic for SWE is because all the indications are that they have no inclination

to release social workers from the chilling impact of this matter. There was every indication from the witnesses you heard of an intransigence to understanding that they wronged RM and that they had done anything wrong. There is nothing in front of us to rebut that because

SWE chose not to send a witness to explain their position. And the views of their former barrister 'move along, nothing to see here'. The words exemplary damages are necessary to have that seismic effect. The purpose of every other award is to compensate C.

The purpose of exemplary damages are punitive and as in the words 'an example' of what should not be done.
J - do you invite us to see any distinction between R1 & R2, costs before the tribunal case commenced.
NC - I don't. The fact that normally employees don't consult

lawyers, does mean they cannot. And those are genuine costs. Its' only if R can attack that her recourse to lawyers was unreasonable. She was facing the loss of her job as the primary bread winner, it should not surprising that she consulted lawyers. She was suspended for

nearly a year. It is not surprising whatsoever.
J - we will take a short break now and hear submissions on costs. How long do you think that will take?
NC - about 30 minutes
SC - I've covered much of mine this morning.
NC - how about 12 as that leaves time for coffee?

J - so 12 o'clock then.
Court rises.

First morning session ends.

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