An employment tribunal has recently awarded an employee over £58,000 in compensation for discrimination she suffered because of to her protected gender critical beliefs. This included an exceptionally rare award of exemplary damages, which the regulator alone has been ordered to pay, for the part it played in her discriminatory treatment.
M, a social worker, had posted some gender critical social media posts which a colleague complained were transphobic. As a social worker, M is regulated by Social Work England (SWE). In June 2021, SWE concluded that: (a) M’s social media posts were discriminatory; and (b) that there was a realistic prospect that M’s fitness to practise as a social worker was impaired. As a result, SWE issued M with a warning, details of which were published on its website. Although M felt pressure to initially accept this regulatory outcome, she later decided to challenge it.
The imposition of the warning by SWE led to M’s employer suspending her for 12 months. In July 2022, the employer determined that M was guilty of misconduct and issued her with a written warning for 24 months. M’s suspension was lifted, but she was warned not to discuss her gender critical views with colleagues.
In October 2022, SWE upheld M’s appeal in the regulatory process; it overturned its decision that M’s social media posts were discriminatory and discontinued its regulatory concerns against her. The following month, M’s employer revoked the written warning she’s been given, although it did not explicitly revoke its finding that M had committed an act of misconduct.
M successfully brought various claims for religion or belief discrimination against both her employer and SWE. The employment tribunal held that both respondents had considered M’s gender critical beliefs to be unacceptable, and they had only belatedly (following the EAT’s decision in Forstater; see our summary here) realised that gender critical beliefs were capable of being a protected philosophical belief. M’s beliefs had been wrongly labelled discriminatory, transphobic and a potential risk to vulnerable service users. When, in reality, M’s views were not extreme – they simply represented one side of an ongoing hotly contested public debate.
The tribunal has recently made its remedy decision and has awarded M over £58,000 in compensation. This compensation package includes the following elements which the respondents are jointly and severally liable for:
- £40,000 compensation for injury to feelings (upper band Vento); and
- £5,000 aggravated damages – the tribunal held that both respondents had acted in high-handed, malicious, insulting or oppressive manner towards M in various ways in the way they had handled the initial complaint and M’s subsequent appeals.
Further, the tribunal took the exceptionally rare decision to order SWE alone to pay M £5,000 in exemplary damages (ED). ED are designed to punish conduct that is oppressive, arbitrary or unconstitutional and are reserved for the most serious abuses of governmental power. The tribunal held that SWE’s conduct had constituted ‘a serious abuse’ of its regulatory power. SWE had ‘allowed its processes to be subverted to punish and supress [M’s] lawful political speech, and to do so on grounds of her protected beliefs’. In doing so, SWE had ‘violated [M’s] Convention rights to freedom of belief and expression and combined that violation with unlawful discrimination’. SWE ‘had a pre-ordained view as to [M’s] beliefs being unacceptable’ and SWE had ‘an institutional view to favour one side of the debate i.e. that gender self-identification was a legitimate expression of belief whilst gender critical beliefs were unacceptable’.
Meade -v- Westminster City Council and Social Work England [2024] ET 2200179/2022; 2211483/2022
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Emma Ahmed, Hill Dickinson
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