SOCIAL WORK ENGLAND
(Registration Number: SW77554)
REGISTRANT’S RESPONSE TO THE SWE STATEMENT OF CASE (DISCONTINUANCE APPLICATION)
1. SWE assert:
Following consideration of the Social Worker’s response, and the new information within it, Social Work England make this application to discontinue the allegations in full, for the reasons set out within this statement of case.
2. SWE relies upon Rule 52 of the Fitness to Practise Rules (as amended) (“FtP Rules”) which provides:
“(1) Where the regulator considers that new information available since the determination of the case examiners means that there is no longer a realistic prospect of a determination of impairment in relation to the case, the regulator may make an application for discontinuance of the case to be considered by the adjudicators.
It is for the Adjudicators to consider the application and determine if this matter should continue to a hearing.
3. The relevant guidance gives three circumstances that support an application for discontinuance and Social Work England rely on all three; that the ‘new information’ indicates the concerns are now less serious, and/or indicates there is no longer a realistic prospect of proving alleged facts and/or there are other evidential concerns. SWE now no longer wishes to call either of its two witnesses.
4. RM agrees that SWE is correct to conclude that there is no realistic prospect of demonstrating her fitness to practice is impaired. However, she does not accept the submissions made by SWE and is concerned that there is no recognition or acceptance by SWE of matters she raises of public interest [please refer to the initial opening submissions and RM’s statement of case contained within the Discontinuance Bundle].
5. SWE make various submissions in support of their application which RM does not accept:
a. It is asserted that the case examiners had not been provided with the full content of the posts and this is new information. This submission is not accepted. The case examiners could easily have found the content of many of the posts, a significant proportion were articles in the mainstream media. That the case examiners were willing to agree a real risk that this material was ‘abhorrent’ and ‘offensive’ was not an error into which they fell by being deprived of the opportunity to analyse the full content of the posts. It is submitted that it was rather a product of a pre-existing position that gender critical belief is necessarily bigoted and transphobic. This submission is supported by July 2022 statement of case from SWE; it considered in detail the content of some of the posts and was clear that it asserted this content supported an assertion that the posts were offensive.
b. SWE concede there was no evidence that any other complaint was made. This is not ‘new’ information, this was known to the case examiners at the outset of their investigation. The complainant was and remains the only person to complain about RM’s posts.
c. SWE appear to assert that it is ‘new’ information that RM’s Facebook profile was private, she did not identify herself as a social worker, and she had only about 40 friends who could access her page. It does appear that the case examiners simply assumed that RM’s Facebook page was open to the public, there is no evidence that they attempted to clarify this with RM.
d. She clarified the position in 2021 [Discontinuance Bundle p103]:
My Facebook account was a private account for ‘friends’ only. I have never publicised on Facebook my background, profession, work, or employer as any posts I shared there were always in a purely personal capacity. However, I did post things which I felt were of interest personally to me and may be to others.
e. However, RM was clear out the outset in her initial response that she did not identify herself as a social worker on her Facebook account; this cannot be therefore ‘new information’ [Discontinuance Bundle p 68] I have always been very careful never to post anything that that mentions my profession or workplace.
f. It is submitted that the case examiners should not have made assumptions about the nature of RM’s Facebook page, nor should SWE have failed to take on board her clarification in 2021. Further, that these assumptions were fuelled by the initial (false) presumption that gender critical belief is necessarily transphobic and bigoted.
g. SWE acknowledge that it is merely a ‘theoretical possibility’ that information posted on a private Facebook account could be circulated more widely. This is not ‘new information’.
h. SWE acknowledge that the posts do not contain slurs, or profane language, they do not target individuals and they do not incite violence, harassment or other concerning or illegal activities.and that a ‘significant proportion’ of the material was reposted from mainstream media sources, such as the Times, the Daily Mail, and the Telegraph. This does not make it impossible that such material could be offensive but – as is conceded – undermines any suggestion that such material is likely to cause offense of the nature and extent required to justify disciplinary proceedings. None of this is ‘new information’ and should have been well in the minds of the case examiners and SWE at all relevant times.
i. SWE now concede that the context in which RM posted much of her material was relevant – during a period of public consultation on reform to the GRA. Again, this is not ‘new’ information and should have been well in the minds of the case examiners and SWE at all relevant times.
j. SWE now assert that positive character references as to RM’s practice are ‘new’ information. The fact that there was and is no evidence to suggest that RM behaved offensively or in a discriminatory way towards anyone was provided by two managers at an early stage [see page 19 Discontinuance Bundle].
I have been [the social worker’s] line manager and supervisor for the past 9 years and I am confident that [the social worker] has never practised in a discriminatory way.” In addition to this positive testimonial a further manager has also provided a positive testimonial they state, “I am confident in her competence and ability to practice as a social worker”.
It is not clear why SWE assert that additional confirmation of this unchallenged position is ‘new information’. Further, JG offered in November 2020 to provide additional testimonials [Discontinuance Bundle p69]. It does not appear that the case workers took up this offer.
If needed, I can provide may examples of Rachel’s exemplary work with minority groups and testimonies from her former line managers and colleagues. Rachel has supported many members of the GBLT community and has always been completely professional and person centred in her practise.
6. Further, SWE fail to address various matters which RM assert are of significant public interest.
a. The case examiners and thereafter SWE proceeded without any or any apparent understanding/application of the relevant law protecting both belief and its manifestation, which is well known.
b. The decision of the EAT in Forstater in June 2021 and confirmation that gender critical belief was worthy of protection in a democratic society, did not prompt any reflection or change of direction from SWE; its statement of case in July 2022 demonstrates the contrary.
c. SWE does not consider the ‘chilling impact’ on the social work profession of proceeding to investigate ‘gender critical views’ as inherently offensive.
d. For example, RM shared material directed to concerns about the operations of the charity Mermaids. It is submitted that recent reported concerns about the failure of safeguarding practices at this charity provide a stark illustration of the dangers of encouraging an environment where any organisation or individual is deemed exempt from challenge. A question was raised in Parliament on 12th October 2022 by MP Miriam Cates about the need now for police investigation into Mermaid’s activities. This concern that certain organisations may prioritise ‘inclusion’ over ‘safeguarding’ is magnified when it applies to the social work profession, which has effective safeguarding as one of its foundational principles.
e. SWE fail to acknowledge that the complainant was clearly not a disinterested member of the public but an active proponent of gender identity ideology who has made over the years numbers of derogatory and accusatory public postings on Twitter, including referring to women as ‘terfs’ or akin to terrorists. There was no curiosity about the complainant or his motivations, his accusations were simply accepted at face value. Again, it is asserted this stems from a pre-existing belief that gender critical belief is necessarily bigoted and discriminatory
f. SWE have asserted in terms in the July 2022 statement of case, that the impact of a GRC is to change the holder’s ‘biological sex’ and implied that people who do not accept this are therefore to be criticised. As a matter of urgency, SWE are asked to explain if it still holds this belief, to set out the reasons for it and to confirm if registered social workers are expected to hold this belief.
7. RM asserts therefore that SWE have not provided adequate or sufficient reasons to support their application to discontinue. These proceedings should indeed be discontinued, but not for the reasons asserted by SWE. It is submitted that RM has provided clear evidence of serious failures on the part of SWE to act lawfully, meet its statutory obligations, or its Corporate Strategy.
8. It is submitted that these failings are largely explained by unlawful discrimination against a protected belief, alongside a failure to understand or apply the relevant law. This risks causing serious reputational harm to the profession as well as directly impeding social workers in the exercise of their safeguarding obligations.
9. RM invites the Adjudicators to consider with care the reasons why these proceedings should be discontinued.
10. RM confirms that she will wish in any event to make further representations to the Professional Standards Authority so that the conduct of SWE may be considered in the performance reviews carried out by the PSA and which inform their report to Parliament. It is submitted that there are a variety of ‘lessons to be learned’ from how this investigation was conducted.
Counsel for the Registrant Rachel Meade
October 12 2022