Month: July 2020

Meshed Up: The Treatment of Women Following Mesh Surgery

Victoria Phillips, partner and head of employment rights (client relations) at social justice law firm Thompsons Solicitors, discusses how women have been treated following complications from surgical mesh.

Over the years, there has been growing awareness and press coverage surrounding the issues of surgical mesh, particularly following the publication of the Independent Medicines and Medical Devices Safety Review on 8 July 2020, led by Baroness Cumberlege. The First Do No Harm report looked into three medical scandals: primodos, a hormone pregnancy test associated with birth defects that was withdrawn in the 1970s; sodium valproate, an anti-epileptic drug, which can harm children during pregnancy; and vaginal mesh implants, a cause of unbearable pain and life-long complications. 

We represent more than 200 women in vaginal mesh surgery claims so, in terms of the review, our focus has always been on this medical intervention. But the commonalities that bind the three are far more staggering than their differences. The review had many overarching themes but the concerns of female patients being ignored by health professionals was a significant common denominator, which exposed an institutionalised inability for the healthcare system to listen to women.

At Thompsons Solicitors, we’ve witnessed how male surgeons patronise female patients and dismiss legitimate concerns in a way that we’re convinced would never happen if the patient was a man. There has been an overriding  paternalistic approach to female issues and patients have had no choice but to trust their surgeon, despite their body telling them something quite different. 

If mesh was to be inserted anywhere near male sexual organs, I believe there would have been rigorous and comprehensive pre-market testing before it was even hinted at as a potential treatment option. If there was even a slight risk to a man’s ability to function sexually , mesh probably would have been dropped far sooner, or more likely, never considered an option in the first place. 

It begs the question that should a man have been put in the same position, would he have been given all of the necessary information? Would he have been listened to when he voiced concerns about the pain he was feeling after his mesh surgery? Would his medical team have looked into the issue thoroughly and found a suitable alternative? Looking at the findings of the review and speaking to our clients, the answer is a resounding yes. Instead, women were told it was “all in their head”, or part of the menopause, and often referred for counselling in lieu of any effort being made to discover the true cause of their agony. 

Many who had mesh surgery didn’t experience issues until years later, but some reported pain and complications immediately after regaining consciousness from their surgeries with assurances it was completely normal and in time would wane. For thousands of women, it never did. They spoke to their GPs, numerous surgeons and other healthcare professionals but were often dismissed  when they suggested their pain was from mesh. One client recalled her surgeon telling her parents she was inventing her pain because of school-related anxiety. That client has since been told the rectopexy surgery she had at just 15 years old, which has left her self-irrigating every night since, was unnecessary. She must continue to self-irrigate for the foreseeable future, unless she agrees to have a colostomy bag. She is just 22 years old. 

The review team heard hundreds of accounts across the country on all three health scandals and Baroness Cumberlege summed it up by saying she “couldn’t believe that people had gone through so much agony and suffering and had been ignored” and that “much of this suffering was entirely avoidable.” 

The life-changing disabilities our clients have suffered from mesh implants has been heart-breaking to see. There has been a systematic failure with a lack of warning from both the manufacturers and the surgeons and hospitals who carried out the operations, without adequate consent. When they tried to complain, our clients faced rejection and belittlement while being wracked with pain. 

Baroness Cumberlege didn’t pull any punches in her review. The changes she called for are too late for those we represent, but they offer the possibility of real reform. This is not just about the NHS. Her recommendations must equally apply to the private healthcare sector, which is every bit, if not more, complicit. 

An apology to the women and men who have suffered, as well as their families, is as welcome as it is overdue, but it won’t bring back the people our clients once were or the childhoods or relationships they have lost. 

To ensure this is not a further slap in the face for our clients, and others affected, the promised changes must be swift, real and resourced from new money, not recycled funds taken from other parts of the health service.

What those who have suffered for so long deserve is decisive action that leads to real change. And that must start without delay.

My body, my choice: privacy, consent and compulsion in personal care

Fortnum v Suffolk County Council is a first instance decision of an employment tribunal sitting in Bury St Edmunds that is often mentioned⁠1 in support of a claim that trans women trans-identifying males already have a right to be treated in all respects as women, even where that impinges on the privacy and dignity of natal women. So far as I can discover, the decision has so far escaped the attention of legal commentators. That’s not surprising, because decisions of the employment tribunal have no weight as precedents, so commentators rarely bother analysing them.⁠2 This one is being treated in some quarters as if it were binding, though, so let’s take a look at it. 

What did the employment tribunal decide? 

Ms Fortnum was a trans-identifying male woman employed by the Council as an assistant Day Care officer. Among her his duties she he was required to provide intimate personal care to male and female service users. One of those service users was a girl or woman (it’s not clear from the judgment whether she was an adult or not) with learning difficulties, referred to as DL. The judgment records that she he had done so satisfactorily and effectively, and that “Neither DL nor her mother knew that the applicant was a transsexual female.” That is ambiguous, but presumably the tribunal meant that DL and her mother believed Ms Fortnum to be a natal woman. 

On 25 May 1999, about a month before she he underwent gender reassignment surgery, Ms Fortnum was told that she he was no longer to provide intimate personal care for DL, because DL’s mother had expressed a wish that only female members of staff should attend to her daughter’s intimate care.

Ms Fortnum was upset and offended, and sued the Council for discrimination, apparently limiting herself himself to a complaint of discrimination on grounds of gender reassignment.  The Council argued that there was a genuine occupational qualification for the job (a “GOQ”); and also that Ms Fortnum had not suffered any detriment in being directed not to provide intimate personal care for DL. 

The tribunal dealt with the latter point shortly: 

We find that submission too sanguine. The applicant took offence and, rightly, at being treated differently by reason of gender reassignment from a natural born woman; she [sic] was treated differently.

So far as the defence of a GOQ was concerned, the tribunal appears to have thought that the direction to Ms Fortnum to stop providing intimate personal care for DL was direct discrimination on grounds of gender reassignment; and that that discrimination was not excused on the basis of a GOQ, because Ms Fortnum had previously been providing those services satisfactorily.

Did the employment tribunal get it right? 

I don’t think it did. From the point of view of employment law, there were three questions the tribunal needed to address: first,  was the Council’s decision made on the grounds of Ms Fortnum’s sex, or her his gender reassignment?  Secondly, was the Council’s decision to her his detriment? Thirdly, if so, could the Council make out a GOQ defence? But in the background to the employment law questions there were also issues – apparently wholly overlooked by the tribunal – about DL’s right to bodily autonomy, and the serious nature of any decision to override her choices about who should provide her intimate care.

Sex discrimination, or gender reassignment discrimination? 

DL’s mother had said only female members of staff should attend to her daughter, and it was in order to respect that wish that the Council had removed Ms Fortnum from theses duties. The established manner of finding out whether someone has suffered discrimination on the basis of a particular protected characteristic is to ask “What would have happened if she he hadn’t had that protected characteristic?” So to find out whether Ms Fortnum had suffered discrimination on grounds of her his gender reassignment, we ask how the Council would have treated someone the same as her him in every respect, except that they weren’t going through gender reassignment; that is to say, a man without the protected characteristic of gender reassignment.  

But once you identify that as the question, it’s obvious what the answer is: the hypothetical Mr Fortnum would have been stood down from those duties just the same as the real-world “Ms” Fortnum was. So the tribunal was wrong about this: there was no gender reassignment discrimination. The true reason the Council removed these duties from Ms Fortnum was that she he was male:⁠3 it was discrimination on grounds of sex. 

If the same facts occurred now, so that they were governed by the interplay of the Gender Recognition Act 2004 and the Equality Act 2010, the question whether the discrimination was on grounds of sex or gender reassignment would depend on whether the claimant had a gender recognition certificate or not. If not, then the discrimination would be sex discrimination for the reasons given, because she he would still be legally male. If she he did have a GRC, she he would be deemed female for the purposes of the EqA, and the discrimination would be on grounds of gender reassignment.⁠4

Was there a detriment?

There is no finding in the judgment that Ms Fortnum’s hours or pay were reduced as a result of the decision to remove her him from the particular duties in question: her his complaint was founded solely on the affront and upset that she he suffered because of that decision. The tribunal thought it was obvious that there was a detriment. 

This, to my mind, is at the heart of the case. The test for a detriment is stated by the Court of Appeal in Shamoon v Chief Constable of the RUC [2003] ICR 337: 

This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to “detriment”: Barclays Bank pic v Kapur (No z) [1995] IRLR 87.

I think the tribunal was wrong on this question, too, and clearly so. Who provides intimate care is a matter of individual consent to actions that would, in the absence of consent, be criminal assaults. A woman is entitled to withhold consent for intimate care to be provided by male people, however they identify, and for the employer of carers to respect that. It is unreasonable for a man to be offended because a woman declines to receive intimate personal care from him, and it is equally unreasonable for a person with a male body who identifies as a woman to be offended for the same reason. Ms Fortnum’s affront seems to have arisen out of her employer’s refusal to instruct or permit her him to commit a criminal assault on a disabled service-user. An “unjustified sense of grievance” seems a precisely apt description for what she he felt. 

Was there a valid GOQ defence? 

If I am right about detriment, this doesn’t arise: there was no detriment, so no discrimination; so the Council didn’t need to prove a GOQ defence. 

But it doesn’t arise for another reason, too. It appears from the judgment that Ms Fortnum complained of gender reassignment discrimination only, and not sex discrimination. So even if I’m wrong about detriment, her his claim should have been doomed to failure: she he hadn’t suffered gender reassignment discrimination, which she he did complain about; and she he made no complaint of sex discrimination, which (assuming the detriment point in her his favour) she he had suffered.  

But for completeness, let’s suppose both that I’m wrong about detriment, and that Ms Fortnum had complained of sex discrimination, too. Would the Council’s GOQ defence have succeeded?  

On this point, I think the tribunal was right, but for the wrong reason. A GOQ defence was available under the SDA where the job needed to be held by a woman to preserve decency or privacy; but GOQs relate to the whole job, not specific tasks. If the whole job had been caring for DL, the job might have acquired a GOQ when DL, or her mother on her behalf, withdrew consent to have intimate care provided by someone who was biologically male. But given that Ms Fortnum could simply be reassigned to other duties, there could not be said to be a GOQ for her job. So if there had been a real detriment, and if Ms Fortnum had complained of the correct kind of discrimination, I don’t think a GOQ defence would have been available to the Council.

The fact – relied on by the tribunal – that Ms Fortnum had performed these particular tasks satisfactorily for some time had no bearing: consent to intimate care is not irrevocable once given. It was open to DL to withdraw her consent to having the services provided by someone who was biologically male, and she had done so.

Conclusion

Fortnum is a muddled and erroneous first instance decision that was (perhaps surprisingly) not appealed by the Council. It doesn’t really tell us anything useful at all, nor is it legal authority for anything. Specifically, it doesn’t provide authority for the proposition that trans women are entitled to override the demands of natal women for bodily privacy from the opposite sex.

Finally, a practical note. Cases like this are liable to cause women anxiety about the extent to which they are entitled to have their bodily privacy respected, so it is worth spelling this out. A woman is  entitled to insist on any intimate treatment or service – from bra fitting to catheterisation – being provided by another woman, and to decline care (etc.) offered by a trans woman. A woman receiving treatment as a patient or services as a client or consumer is not doing anything that is controlled by the Equality Act 2010, so no question arises whether in insisting on being attended to by a woman she is “discriminating,” or whether there is a valid exemption that excuses her conduct: this is simply a matter of her boundaries, her dignity, her preference, and her consent.⁠5 No means no. 

1 Sometimes under the name “DA v Suffolk County Council”; in any event, case number 2000 ET/1501602/99.

2 There doesn’t even seem to be an official transcript of the judgment in existence: I have been working from a transcript prepared by the claimant and her legal adviser, and published by Press for Change:  http://www.pfc.org.uk/caselaw/DA-v-Suffolk%20County%20Council.pdf

3 The Gender Recognition Act 2004 had not yet been passed, and at the time of the act complained of, Ms Fortnum had not undergone surgical transition, so there was no basis on which she could credibly have argued that as a matter of law she was female.

4 Against this, on parallel facts arising now, Chief Constable of the West Yorkshire Police v A [2005] AC 51 might be relied on for an argument that the trans woman should be treated by the law as female. My view in short is that that argument should fail. The claimant in West Yorkshire Police was a “post-operative transsexual,” and there is significant reliance placed in the House of Lords on how complete her physical transition had been. It is also relevant that West Yorkshire Police was decided before the Gender Recognition Act had come into force: there is now a statutory scheme in place that tells us whether, and for what purposes, a trans woman is to be treated as legally female.

5 Whether if the service provider refuses to provide an alternative, a woman would have a discrimination claim of her own is a question for another day; but what is beyond any possible doubt is that she is entitled to decline.

Pronouns: Compulsion and Controversy

BBC employees are being “encouraged” to put pronouns at the end of their emails and we look at the possible issues here. Is that a kindness that  only a misanthrope could oppose, or is there more to it?   

Compelled speech

The first issue is that of compelled speech. Pronouns are not neutral. The move towards declaration of pronouns presupposes that everyone “has pronouns”; which is to say that everyone has an inner gender identity, and being described by the pronouns he / him, she / her, they / them, zie / zem, or something else is an expression of that identity. It also suggests that there may  be repercussions for failing to remember a colleague’s preferred pronouns. 

This is a highly political position. At the moment, the law recognises two sexes (male and female) through s.212 Equality Act 2010, and that a person can change their legal sex from one to the other by operation of the GRA 2004. There is also established case law which recognises that a person’s gender can be central to their private life protected by Article 8. The law does not lay down that a) everyone has a gender or b) that gender is innate.

The concept of gender identity entered the legal lexicon with the Yogyakarta Principles. These Principles do not carry legal force, but have often been adopted as a convenient shorthand. They were drafted in response to global discrimination and persecution of LGBT people. The definition given of gender identity is this:

We can see two things from this: first, that it assumes that each person does have a deeply felt internal and individual experience of gender. Secondly, that it rather correlates to the Equality Act definition of gender reassignment, envisaging a process which may include medical modifications, rather than a simple declaration. 

But the more commonly used definition in the UK is that provided by Stonewall through their training. You can see that Stonewall depart from the idea of reassignment altogether (it is described as “a term of contention” in their glossary). Here are their definitions of gender and of gender identity:

What does this mean? Three things: a) that everyone has an “innate” sense of gender; b) that “culturally determined” masculinity and femininity is innate to males and females; and c) that those who reject their culturally determined gender are at odds with their sex, while those who embrace it are aligned with their sex, and are “cis.”

This is a political, and controversial, perspective. There are many people, male and female, across the political spectrum, and across sexual orientations, who regard it as problematic. It is a particular issue for those women who reject culturally determined femininity as oppressive and sexist, and for whom the idea that it is innate to most women – and by extension, that for those to whom it is not innate are not fully women – is nothing more than reinforcement of harmful stereotypes. 

It is from the belief that gender is innate that the drive to announce one’s pronouns stems, because pronouns then become an expression of individual gender rather than a convenient linguistic replacement for a proper noun. 

Insisting that employees put pronouns into their signature therefore leaves women who do not accept innate gender theory in a dilemma. They must either comply,  aligning themselves with a political position they disagree with;  or else reveal their political views in the workplace, which carries  a risk of adverse consequences. We know that the popularity of innate gender theory means that those who take the contrary view may be visited with vile abuse, reported to their regulator, complained about to their employer, or even fired – so a woman who opposes innate gender theory may nevertheless feel obliged to comply through fear of losing her employment or being socially ostracised.

Some will suggest that this is acceptable – that to reject the notion of innate gender is so repugnant that those who do so must expect to face adverse consequences. They may point to EJ Tayler’s judgment in Maya Forstater’s case that gender critical beliefs did not qualify as a protected characteristic under the Equality Act 2010 for that reason.  There are two answers to that. The first is that a first instance employment tribunal judgment has no weight as precedent, and this particular judgment is under appeal, and seems likely to be overturned. The second is that there is a great difference between disciplining an employee or treating them adversely because they voluntarily express opinions that they know to be controversial on the one hand, and forcing employees to sign up in public with a political statement that they may find profoundly objectionable. 

A belief that gender identity is innate may also be quasi-religious; the concept that each of us has an inner being, a soul, which is gendered, contained inside the mortal flesh which has a reproductive sex that may not match that gender. As the MP Layla Moran said, “I believe that women are women…. I see someone in their soul and as a person. I do not really care whether they have a male body.”

It has long been held that the freedom to believe is matched by the freedom to disbelieve, not just for outright atheists but also ‘sceptics and the unconcerned;’ as per §31 of Kokkinakis v Greece (1994) 17 EHRR 397:

“As enshrined in article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

Freedom to disbelieve in the context of political, not just religious, scepticism was considered in RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38. The Court commented that “As regards the point of principle, it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs…. One of the hallmarks of totalitarian regimes is their insistence on controlling people’s thoughts as well as their behaviours.” The Appellants, who were politically indifferent, were protected as they could not be expected to assert loyalty to the Zanu-PF regime in Zimbabwe against their true views.

RT (Zimbabwe) was cited in the more recent case of Lee v Ashers Baking Company Ltd & Ors (Northern Ireland) (Rev 1) [2018] UKSC 49 (often described as “the gay cake case.”) The bakery could not be compelled to ice a message “with which they profoundly disagreed” onto a cake. It is difficult to see how an employee could be compelled to align themselves with a perspective with which they profoundly disagree in their email signature.

Sex Discrimination

The next issue is whether a female employee encouraged or compelled to declare pronouns could legitimately argue that this discriminates against her, directly or indirectly, because of her sex. 

We know that sexism in the workplace is far from over. Conscious or unconscious bias operates against women. This example, from 2017, illustrates the point: when Nicole and Martin swapped email signatures, they learned that “Nicole” would be perceived as far less competent than “Martin” by clients. Without that sexism, if Nicole truly had been less competent, she would still have been regarded as such when signing off as Martin – and yet that is not what happened. 

In 2019, the Royal Society of Chemistry undertook an analysis of gender bias publishing in the chemical sciences. It recognised that biases were “subtle” and could be “inadvertent.” Women were invited to review less often, their work was more harshly received, their initial submissions more frequently rejected. These “small biases” led to a “significant cumulative effect.”

The RSC are not the only organisation to have done such research. Others have found similar results, and of course there are numerous articles spanning the last decade or more which find that CVs with a female name get poorer results than the same CV carrying a male name. CV writing services recommend against including gender on the CV – a practice which used to be common and is now recognised as archaic. Race is also a factor – although for now at least, nobody is suggesting we declare our race at the bottom of email signatures.

And it is not just the recipient of the email who may be unconsciously biased against a female sender. The female sender herself may be subject to ‘stereotype threat.’ This is where a person is reminded of membership of their group and then under-performs; for example, women who were told that women do worse than men in maths tests then really did perform significantly worse in a maths test than women who were told there was no difference in performance (Cordelia Fine, Delusions of Gender, p.32-33). Even being reminded of one’s own sex at the beginning of a test can have the same effect (ibid, p32). 

It would seem that women who are compelled to declare female pronouns in their signatures may be vulnerable to stereotype threat and also to unconscious bias on the part of the recipient of the email, thereby entrenching those biases further. 

This does not mean that any woman whose workplace initiates a pronoun policy has an automatic, unassailable, claim. An employer might defend the claim by arguing that they are aware of the negative impact on women but that it is justified as a proportionate means of achieving  its legitimate aim of trying to create an inclusive work environment. Argument and evidence would then centre on balancing the potential harms and benefits of the policy. It would be relevant, for example, if the employer was already struggling with recruitment and retention of women, or if there were a male / female disparity in sales commission. The ‘compelled speech’ aspect of the policy would also be relevant to this balancing exercise. 

Summary

It should go without saying that if an employee is beginning gender reassignment and wishes their colleagues to use a different pronoun for them, they should be supported to do so. There are rightly prohibitions on victimisation and harassment on the grounds of gender reassignment. That person may wish to send an email round-robin with their news, or may wish to have their pronouns in their email; an employer should not prevent that. However, when the BBC’s guidance suggested that all employees should put pronouns in their signature, and said “It’s really simple,” that was, we suggest, premature, and may be experienced as coercive. And when they speak of “creating a culture where everyone feels comfortable introducing themselves with pronouns” they should also consider whether they might be inadvertently creating a culture where those with the she/her pronouns experience discrimination as a result of their sex. 

Does the law say that trans women are women?

There’s a comment on Audrey Ludwig’s “Blog about Boxes” that seems to me to need a short post of its own. The full comment is

Can I ask a question about something I’ve seen claimed many times (including by senior politicians) – “the law states that transwomen are women.” Does the law actually say this?

The short answer is no: the law doesn’t define the terms “transwoman” or “trans woman” at all. 

The Gender Recognition Act 2004 does change some people’s legal sex. Obviously the law can’t change anyone’s biological sex. The fact that the law can’t mess with material reality is the point Canute was making when he forbade the tide to come in. But section 9 of the Gender Recognition Act 2004 has the effect that some trans women (i.e. the very small number who hold a GRC – only a few thousand to date) are deemed for most legal purposes to be women, although exceptions apply.

The Equality Act 2010 forbids discrimination (in various different contexts) on grounds of gender reassignment. That means that in those contexts where the Act has effect (employment, provision of public services, education etc.), it’s mostly unlawful to treat a person less favourably than you’d treat other people because they are proposing to undergo, are undergoing or have undergone “a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”  If a person is somewhere on that path, it doesn’t matter whether they’ve got a GRC or not: they’re entitled anyway not to suffer discrimination on grounds of gender reassignment. There are some necessary exceptions, but in general it’s obviously right that there should be a legal prohibition against discrimination on this ground.

But it’s important to note that that doesn’t mean that trans women are entitled to be treated for all purposes as if they were biological women. If a trans woman who doesn’t have a GRC wants to access a female-only space, and is refused access, that’s not discrimination on grounds of gender reassignment, but discrimination on grounds of sex. She’s refused access not because she’s trans, but because she’s both legally and biologically male. That means she can lawfully be refused access any time it’s lawful at all to have a female-only space. In my view, it also means she almost certainly should be refused access in those circumstances. That’s because it’s only lawful at all to provide a single-sex space or service if there’s a good reason for sex segregation; but if trans women are admitted, it will cease to be a single-sex space.

If a trans woman who does have a GRC wants to access a female-only space or service, it’s still likely to be lawful to refuse, because of the exceptions that apply to prohibitions on discrimination on grounds of gender reassignment.

In short, the Equality Act does recognise that although sex is usually a bad and arbitrary reason for treating people differently, there are contexts in which biological sex matters.

Friday Round Up

A busy week in feminist legal news!

In welcome news, the CPS and police have scrapped “digital strip searches” of rape complainants, following a threat of legal action from two survivors and the Centre for Women’s Justice.

Shamima Begum has been successful in her judicial review. She challenged the decision to deprive her of citizenship and the decision to refuse leave to enter the UK. It is likely that this case will now be appealed to the Supreme Court.

Kiera Bell has published her crowdfunder on Crowdjustice to raise funds to bring a legal challenge to gender identity theory in NHS England’s Memorandum of Understanding on Conversion Therapy, arguing that in its present form it prevents clinicians from providing appropriate care.

Permission has been granted for judicial review brought by four “age verification” companies against the Government’s decision to drop the ‘porn block’ planned through age verification to access pornography. The companies, who expected to sell their age verification product, argue that the Government had the power to postpone Part 3 of the Digital Verification Act 2017 but not to drop it altogether. It is unclear whether AgeID, owned by giant Mindgeek which also owns PornHub, Redtube, Youporn, Gaytube and others, is one of the claimants.

The Howard League for Penal Reform has published its paper “Rethinking Remand For Women” arguing that women are too often inappropriately remanded.

On appeal from Scotland’s High Court of Judiciary, the Supreme Court has ruled against Mark Sutherland in a case about the legitimacy of evidence obtained through vigilante groups. Sutherland, convicted after exchanging explicit messages with a decoy he believed to be 13, brought the appeal on the basis that the use of such evidence interfered with his Article 8 rights.

The government has published the Commons Library Briefing on gender recognition and the rights of transgender people. Oddly, this was published, then vanished for a few hours, then returned with two missing sections: specifically, the section on legal gender recognition not being possible for minors and the section on provisions to support transgender children in schools. It may be that these were removed from an earlier draft in view of ongoing legal challenges.

The University of Huddersfield has published its review of the Leeds Holbeck “managed area” on prostitution. FiLiA and Nordic Model Now have reviewed the review.

Internationally, the European Court of Human Rights has ruled in YT v Bulgaria that the Bulgarian government was not permitted to refuse a trans man any legal mechanism to change the legal sex on his documents. This ruling will bring Bulgaria into line with most of the rest of Europe.

Shamima Begum: the Court of Appeal decision

Shamima Begum, the British teenager who left her home at 15 to become an ISIS child bride, has successfully challenged two decisions. She had wanted to return to Britain, her home country.

The government revoked her citizenship, arguing that she would not be made stateless because she would be entitled to apply for Bangladeshi citizenship. She challenged this through an appeal to SIAC. SIAC rejected her appeal, on the basis that

  • her hearing would not be fair, but that was not determinative in her favour;
  • she would be entitled to Bangladeshi citizenship;
  • although she was living in conditions which breach Article 3, she was not entitled to protection under the Convention because she is outside the country as a result of her own action

At the same time, she had applied for leave to enter the UK. A British citizen may enter the UK, but as she had lost her citizenship, she needed to apply for permission to enter (commonly referred to as “a visa” although there are distinctions between different types of entry clearance and leave to enter). The Secretary of State (“SSHD”) refused. She applied for judicial review of this decision. Permission was granted but the substantive JR was refused.

She then appealed to the Court of Appeal on both decisions.

The Court has allowed both appeals, although stopped short of allowing the deprivation of citizenship appeal outright. Subject to an appeal to the Supreme Court, this would mean that she would return to the UK in order to have her citizenship appeal reheard. Giving the leading judgment, Flaux LJ (with whom King LJ and Singh LJ agreed) held that

The fact that she left the country of her own free will is premature, and irrelevant to whether she can have a fair hearing.

In my judgment, the circumstances in which Ms Begum left the UK and remained in Syria and whether she did so of her own free will should be irrelevant to the question of the legal and procedural consequences of SIAC’s conclusion that she cannot have a fair and effective appeal. Furthermore, I would be uneasy taking a course which, in effect, involved deciding that Ms Begum had left the UK as a 15 year old schoolgirl of her own free will in circumstances where one of the principal reasons why she cannot have a fair and effective appeal is her inability to give proper instructions or provide evidence. One of the topics that could be explored on her appeal before SIAC is precisely what were the circumstances in which she left the UK in 2015, but that could only properly be determined after a fair and effective appeal. The Secretary of State’s submission risks putting the cart before the horse.

§94

However, that does not mean that her appeal against deprivation of citizenship must just be allowed outright. To do so would mean that any appeal in similar circumstances, however lacking in merit, would also have to be allowed.

In particular, where, as in the present case, the deprivation decision is based on an expert assessment that it is in the interests of national security, simply allowing an appeal would set that assessment at nought, a point which was powerfully made by Sir James Eadie QC. That seems to me to be an extreme position which is wrong in principle and would potentially set a dangerous precedent.

§95

So what were her next options? The court looked at three of them: (i) that she could simply continue with her appeal, fair or otherwise, (ii) that she could apply for a stay of the appeal in the hope that at some point in the future she might be able to take part in it, or (iii) if she did not ask for a stay, she would inevitably fail to comply with a direction, the appeal would be struck out, but she might be able to apply to reinstate it.

Their Lordships appeared underwhelmed by options (i) and (iii).

The first and third of these courses can be swiftly dismissed as failing to answer the issue of unfairness and lack of effectiveness of the appeal. With due respect to SIAC, it is unthinkable that, having concluded that Ms Begum could not take any meaningful part in her appeal so that it could not be fair and effective, she should have to continue with her appeal nonetheless….
It is one thing for an appeal to proceed without the participation of the appellant against an appellant who chooses not to participate. It is quite another to proceed with an appeal without the participation of the appellant because the appellant is unable to participate meaningfully and effectively. Far from remedying the unfairness, this would seem to compound it. As Singh LJ said in the course of argument, it is difficult to conceive of any case where a court or tribunal has said we cannot hold a fair trial, but we are going to go on anyway.

§113 – 114

Option (iii) was considered, but rejected on the basis that it would be an indefinite stay, with the potential risk of execution or mistreatment abroad a “foreseeable risk.”

The Court pointed out that she can be held in custody or made subject to a TPIM, as has happened to others who appear to be far more dangerous and have been involved in actual fighting rather than ancillary support through becoming a wife.

It seems to me that… the national security concerns about her could be addressed and managed if she returns to the United Kingdom. If the Security Service and the Director of Public Prosecutions consider that the evidence and public interest tests for a prosecution for terrorist offences are met, she could be arrested and charged upon her arrival in the United Kingdom and remanded in custody pending trial. If that were not feasible, she could be made the subject of a TPIM.

§120

There seems little reason that Begum could not be prosecuted. s.17 Terrorism Act 2006 allows for prosecution in the UK of a person who commits a terrorism offence abroad. Even allowing that extra territorial jurisdiction was introduced for some of the specified offences (“inviting or expressing support”) only in 2019 and therefore may not apply, membership of a proscribed organisation, aiding, abetting, counselling or procuring the commission of an offence, could apply. This is not one of those cases in which a suspect argues that they were simply attending a distant relative’s wedding and naively wandered through a terrorist zone. She has given an interview expressing support for ISIS. The question is perhaps not whether she could be prosecuted, but why on earth she might not be.

It seems extremely likely that this case will now be appealed to the Supreme Court. An issue which will not trouble the Courts, but may vex the casual reader, is this: why is the Government taking such a hardline approach to an ISIS child bride, when they reportedly allowed back 400 actual fighters, surely far more culpable, to face prosecution and / or a comfortable sojourn at a “leading mental health clinic?”

Operating Hours: Time Does Not Expand

Guest blog:
Georgia Luscombe in our series on extended hours

This morning, Robert Buckland QC MP was interviewed on Radio 4 about possible ways to deal with the backlog of trials waiting to be heard in criminal courts. There are an estimated 500,000 cases in the Magistrates’ Court and over 40,000 in the Crown Court. The first thing to note, however, is that the bulk of this backlog is not due to the coronavirus pandemic grinding trials to a halt. It has long been known that this government and its predecessors were so intent on tightening the purse-strings that they would rather leave functional courtrooms closed and salaried judges at home than properly fund a court estate at full-capacity. So it came as some surprise to hear Buckland say, “the first thing to do is scale up capacity and use time in as expanded a way as possible and let’s see how far we can eat into the case load”. 

There is mounting political pressure on the government to manage ‘law and order’ effectively. For years now, criminal law practitioners have been complaining about delays to justice from the use of ‘release under investigation’, leaving suspects in limbo without charge for years to avoid time restrictions on bail. It is then galling to represent a client at their Plea and Trial Preparation Hearing in the Crown Court, years after an offence took place, and hear that their trial cannot be listed for many more months. Make no mistake, however, this was well before coronavirus. We can trot out the refrain that ‘justice delayed is justice denied’ and have been doing so for as long as I have been at the Bar. The police are underfunded and short on time, the CPS do not have enough staff, legal aid rates have been savaged so far that defence solicitors can barely pay their overheads. There is no reticence from criminal barristers to safely resume jury trials; our income wholly depends on it. The issue is that after years of swingeing cuts to the criminal justice system, there is no goodwill left to eke out of us. We know full well that ‘flexible operating hours’ means forcing practitioners to work longer and under even more pressured conditions to dig this government out of a hole of its own making, that we have been warning them about for years. 

My first year of practice (from the beginning of my second six) was primarily defending in the Magistrates’ Court, conducting trials on legal aid rates (usually £100 per trial). I practised about 50/50 in London and outside but usually with at least an hour’s travelling each way.  This was my working life: 

6 – 7am: Wake up, check e-mails, get ready. 

7 – 7.30am: Leave to travel to court.  

9am: Get to court, speak to the prosecutor, get last minute disclosure of key material to digest. 

9.30am: Conference with my client.
10am – whenever (sometimes 3.30pm because court will just list all trials at 10am and try to get through them, with no concern for lawyers’ wasted time): Waiting for trial to be called on. 

4.30pm: Finish in court. 

4.30 – 5pm: Another conference with client. 

5 – 7pm: Travel home. Write up today’s notes. At some point (usually around 5.30pm) receive papers for tomorrow. 

7pm: Eat dinner, try to forget today’s case. 

8 – 10pm: Prepare for tomorrow’s case. 

10pm: Inevitably get last-minute e-mails, maybe get instructed on another short hearing to squeeze in before the main event tomorrow. Struggle to switch off because of the adrenaline burst this late in the evening. 

Then factor in that most pupils and junior barristers are on a Saturday court rota. Mine usually meant making a bail application every other Saturday morning. I know pupils at other Chambers who had to go court every single Saturday. On Sunday you would try to catch up on admin, advices, remembering to renew your professional indemnity insurance, making sure you’re doing some CPD, thinking about topics to do a seminar on so that your practice doesn’t stall. For solicitors, they’ll be on police station duty rota, taking phone calls all night and then starting a day’s work at 9am. What would that schedule look like if a day in the Magistrates’ Court didn’t end until several hours later? Will they change listing practices so that you don’t waste an entire morning at court if your case isn’t heard until 5pm, or will they continue to insist that court time is so precious that yours is wholly insignificant in comparison? 

I truly fear extensions to the working day in the Crown Court. My second Crown Court trial was a late return; I remember coming home from court, spreading papers, Archbold and sticky tabs across my dining table and apologising to my flatmates that I’d be there until late and please could they not watch TV in here this evening? It would be a one-off, I said. It was not a one-off… Every night that week would be spent writing out cross-examination questions, leafing through Archbold, trawling through unused material. And so it has been for several other trials since then. I’m grateful for understanding flatmates who enjoy me practising jury speeches on them, provide snacks,  sometimes take my washing out for me when I’ve run out of black tights. I cannot imagine having to feed children, put them to bed or be woken up by a crying baby during the few hours of sleep I actually manage. The prospect of having any kind of work-life balance at the criminal Bar if I do have children one day seems totally elusive. It is a reality of my job that I have simply put to the back of my mind, in a drawer labelled ‘future problem’. There is no space to consider it now. 

Last year, I was a junior in a seven-week Crown Court trial. It was incredibly fortunate that a family friend lived walking distance from the court and offered me a room, which significantly cut down on my travel time. My leader was travelling to and from London most days and battling with constant train delays. There were a whole host of legal arguments at the outset of the trial, involving near daily skeleton arguments being sent backwards and forwards. There were disclosure issues to sort out and the kind of editing to schedules that can only really be done once the trial is underway and legal issues resolved with the Judge. We would usually still be at court beyond 5pm. I was receiving e-mails from the defence junior most evenings. On some days, somebody had a childcare issue which could not be avoided and so they could not get to court until 10.30 or would have to leave as close to 4pm as possible. The Judge was understanding but everyone wanted to maximise court sitting time to get through the trial. For single parents who needed to pick children up from nursery or after-school club at a certain time every day, I expect this would be impossible. 

When lawyers hear politicians say we need to “use time in as expanded a way as possible”, it strikes fear into us. What does expanding our day actually mean? As I return to court in person post-lockdown, I have begun to say to friends again, “Sorry, I can’t tell you which evening next week we could meet, I don’t know what work will look like”. Ask any criminal barrister how many birthday drinks they’ve missed, how many plans they have cancelled last minute, even pre-paid holidays. We make sacrifices constantly in order not to let clients down when their trials are suddenly listed without warning. We give up evenings and weekends to prepare cases. We accept that this is just how it works, it is unpredictable. It is not ‘flexible’ in any way; that the government are referring to extended operating hours as ‘flexible operating hours’ is nothing short of insulting. I expect the decision has already been made in the higher echelons but we as a profession should not stand for it. I do not want to be another statistic of ‘women who have left the Bar because it is incompatible with having a family’. It is boring and disheartening but, worst of all, it is so preventable. 

Bow Street Night Courts Pilot – My Experience

There is Nothing New Under the Sun…..

I took part in the Night Courts Street Pilot when I was a Second Sixth Pupil, in the summer of 2002. I was, at the time, not someone who had any particular caring responsibilities or other difficulties. I was a 24 year old woman, with no children. For about 6 months, two Magistrates’ Courts were open on Friday and Saturday nights to deal with newly-arrested Defendants, which meant that they didn’t have to be held over to Saturday mornings or Mondays, respectively.

I went to the Bow Street pilot scheme, and I understand that Manchester also had a pilot court running.

It was a nightmare, both personally and professionally.

Those cases which were just a waste of time were the better ones. Some went wrong in ways that were significantly worse.

As a pupil, I was “on call” every other weekend and bank holiday. Other than during the pilot, that meant I could be (and almost always was) instructed to go to a Magistrates’ Court on a Saturday morning and do a “First Appearance”, which means applying for bail, taking basic instructions, receiving the initial prosecution papers, and fixing the next court hearing, usually for plea or committal (at the Mags) or first appearance at the Crown Court (if an indictable-only offence).

The pilot kicked off in July or August 2002. It meant that every other weekend, I was on-call for Bow Street Magistrates Night Court on Friday evening, A N Other Magistrates on Saturday morning, and back to Bow Street on Saturday evening. After a full week as a pupil, rushing around the country, and with a similarly-full week on the horizon, it was tiring and tough.

Several weekends I did indeed do the full monty, with 3 extra Magistrates’ hearings over the weekend.

Reasons Why Many of the Bow Street Hearings were a Waste of Time:

  1. The papers didn’t arrive when the Defendant did, because it was out-of-hours;
  2. The papers arrived and the Defendant didn’t (ditto);
  3. The Def was too drunk/high/ tired/other to be able to take part;

then there were the hearings where the Def was sober enough, present, and the papers were also there:

  1. The case needed the Youth Offending Team. “Sorry, not available, come back on Monday”;
  2. The case needed a new PNC printout. “Sorry, come back on Monday”;
  3. The case needed to hear from probation. “Monday”;
  4. The case needed a check with social services / similar. “Monday”;
  5. The case needed information on drugs / alcohol / community service / etc. “Monday”;
  6. A relevant file was in another court / police station / etc. “Monday”.

Worse Than a Waste

There were two cases of mine which went beyond “waste of everyone’s time, energy, and money” and were actually a nightmare. One involved an under-18, so there’s not much more I can say about it.

The other involved an adult Defendant, accused of three robberies. Standard steps went ahead with no more than usual Saturday night time wasting – I took instructions in the cells, filled in the legal aid forms, received the initial papers from the CPS, etc. I had arrived at Bow Street at 5.45pm for a 6pm start, the Defendant had been produced by 6.30pm, and the papers had arrived at the same time.

During the Court hearing which started about 8.30pm, the Defendant had some kind of fit. He ended up jumping the dock, sending files flying and Counsel (including me) diving to the side. The general alarm went off, the court was cleared, all hell broke loose.

The custody staff called the only doctor on duty, a standard police doctor. He arrived at 10pm, said, “he needs a psychiatrist, not a GP” and a psychiatrist was called for. There wasn’t one available. After much phoning around, one said he could arrive by 3am, which was going to be too late for the cells, as the court was closing at 2am.

The Defendant was extremely distressed. The custody staff (who were a really nice lot, at Bow Street) were very worried about him. And nobody, nothing relevant was available or on-call.

So as well as all the other difficulties about “flexible” court hours, in my experience, they just don’t work. Unless there is also massive investment in getting all the usual, necessary services on call (a girl can dream, right?)

Personal Difficulties

It was an unpleasant experience. I was over-stretched, lacking time off, and having to get home at late-o-clock (sometimes I’d finished by 9pm. At least 4 times it was after midnight by the time I was going home). No expenses, including travel expenses, are paid for Magistrates’ Court hearings, so I had the choice of walking home free, dressed in a suit and carrying a work bag, or getting a cab, which I couldn’t really afford.

I was lucky – I lived within extended walking distance of Bow Street at the time, and my then-boyfriend walked over to meet me and escort me home. And, on one occasion, to keep me company in the many hours I was at court after my own lay client had such a horrific episode, which was appalling for him (and scared the living daylights out of me).

If I’d had children, or other caring responsibilities, hadn’t lived within walking distance, hadn’t had a boyfriend who was willing and able to support me, what was then difficult would have become impossible.

Now, for example, I couldn’t do it. Then-boyfriend, now Dearly Beloved, couldn’t drop everything and come and meet me, because he’d be at home looking after our sons while I was working.

Extending Court-Hours: Is the Future Female?

For most of us, flexible working means improved work-life balance and the ability to combine caring responsibilities with work; responsibilities which, as much as we may wish otherwise, fall disproportionately on the female sex. For HMCTS, flexible working appears to mean something rather different.


Days ago HMCTS Chief Executive Susan Acland-Hood suggested that the Crown Courts’ backlog should be dealt with by extending court-operating hours. She dismissed solutions such as the reinstatement of previously cut sitting days to address a backlog which now sits at 41,599 outstanding cases. That backlog had already reached some 38,000 by the end of 2019. At that point HMCTS made no indication of an intention to pause the plan to further reduce sitting days and the size of the courts’ estate. It is fair to infer that HMCTS regard the pandemic as another opportunity to seek to introduce a scheme which has previously been met with overwhelming resistance from the legal profession. 

Acland-Hood’s only allusion to impact was barely detectable, and rather coyly expressed: “it takes people out of their accustomed ways of working, around which patterns and plans including things like childcare are built.” (our italics) In reality, it takes women, who bear primary caring responsibilities, out of their already overstretched “ways of working”. It makes no allowance for the fact that many female lawyers have to make plans of almost military efficiency to manage both professional and personal responsibilites. It is noteworthy that Acland-Hood did not acknowledge that the impact will be most acutely felt by the female side of the profession, and exponentially by those who bear sole caring responsibilities. 

Judicially-led working groups have, we are told, been set up to carefully consider what will work best in individual jurisdictions to ensure that changes implemented in a collaborative way. We are told that all key bodies representing legal professionals and others are involved in these groups and that detailed modelling has been shared.

The concept of extended or “flexible” operating hours is not a new one. HMCTS has been toying with the idea for at least 4 years, and the issue of the impact on female lawyers was raised at the earliest meetings with professional representatives. In April 2017, it published its Flexible Operating Hours Equality Statement; this was intended to be a live document and expressly stated that it would consider the sex-based equality impact of extended hours. It noted the concerns about the impact on work-life balance and diversity 

Perhaps surprisingly then, no account was taken of the impact flexible hours would have on maternity and pregnancy or on breastfeeding, an oversight which the HMCTS Judicial working groups could now reasonably be expected to correct. At the time of its writing the authors of the equality statement appeared to envisage monthly reviews and updates throughout the life of the flexible operating hours project. Possibly less surprisingly, neither reviews nor updates have materialised.

 
On 28 June 2019 the Evaluation Plan for Flexible Operating Hours’ Pilots was published; here sex-based “disbenefits” were identified and the potential for long term negative impact was recognised. It was also considered possible that flexible operating hours might lead to an unfair distribution of work such as Chambers allocating work to non-primary carers. In other words, working mothers may miss out on work; the female side of the profession would be disadvantaged.

It was also recognised that there could be a negative impact on professionals’ working lives which may have a longer term impact on recruitment and retention, as well as irreducible working practices such as managing preparation time and conferences out of court. Nonetheless, it was suggested that flexible hours might support a better work-life balance for those with caring responsibilities, particularly if combined with better listing practices. 

Discrimination practitioners will be alert to the obvious limitations of a hypothesis such as this, based upon an assumption that legal professionals with primary care responsibilities (statistically, predominantly female) have a partner with whom to share the load of childcare responsibilities. This assumption is one which puts single mothers in the profession at an acute disadvantage..

We pause at this point to note that listing practices have long been a source of disruption (professional and personal) and financial difficulty to practitioner. Legal professionals would be forgiven, we suggest, for viewing the promise that listing might take proper account of lawyers’ availability and commitments, particularly when those commitments are personal with some scepticism.  

The evaluation planned to interrogate how flexible hours would impact on caring arrangements and adjustments to workloads and responsibilities whilst also taking into account the cost of childcare to legal professionals. It was recognised that, in some instances, the types of impacts which flexible operating hours could have on the profession may take years to show up and that the pilots which were only to run for six months may not uncover. 

It is interesting to note that, despite the equality statement’s earlier clarity that those legal professionals most likely to be disadvantaged would be women, there is a marked disinclination throughout the evaluation to refer to this fact in unambiguous terms. Its language is oddly sexless; given the prominence of sex discrimination as a potential obstacle to the lawfulness of the scheme, the refusal to name it might be seen as a form of neuro-linguistic programming, one which is assiduously adopted by Acland-Hood in her blogpost. 

The flexible hearing pilots were concluded in May this year and we find it, yet again, surprising that no mention has been made of their evaluation. The Flexible Operating Hours report must be in train; the raw data having already been collected. In light of the justification now advanced for pursuing Flexible Operating Hours, it would be a startling oversight on the part of HMCTS to fail to update the Equality Statement to take account of the sexed impact of Covid 19. Research from the Fawcett Society and Maternity Action would be an excellent place to start.

Flexible Operating Hours could be workable, and even welcome, for those who are realistically able to reconfigure their childcare responsibilities and share the load with partners or family. But it must not work to disadvantage women who do not have such flexible personal circumstances. The retention of women in the legal profession is a matter of abiding concern. 

In terms of the rate at which the backlog of cases has grown, the public health crisis has made little significant difference. Covid-19 has not created a crisis in the justice system, although it has exposed the pre-existing crisis in those jurisdictions most heavily reliant on publicly-funded work. A ‘solution’ which was devised before the existence of the pandemic, and was designed primarily to cut costs, will do little or nothing to address the consequences of Covid-19 for the justice system, but will almost certainly exacerbate the consequences for the women upon whom it depends. 








“Cancel culture” – how should an organisation respond to a baying mob?

Image result for pitchfork mob

The scenario is now familiar: your organisation’s social media team is tagged into a Tweet that looks something like this –

Hey @yourorganisation, what do you think of your [employee / supplier’s] comments about [racism, feminism, social distancing, other wrongthink]?  Is @yourorganisation [racist, transphobic, NHS-hating] or will you [sack/cancel/condemn] your employee/supplier by the end of the day?

It is tempting for an organisation in this situation to hastily distance itself from the “offensive” statement and its maker (called the “Individual” in this article) in an attempt to call off the mob and protect the organisation’s brand.  Responses have ranged from terminating contracts[1], sacking Individuals[2] and explicitly or implicitly condemning Individuals[3].  But haste can lead to misjudgements, potentially resulting in an embarrassing climb-down or even legal action[4].  That makes choosing the right response to a “cancel call” important , particularly as the range of subjects which can trigger an outcry has expanded to include areas where nuanced disagreement is not only justified but also essential. To help organisations to keep their heads when all around them are losing theirs, we suggest a response protocol.  As ever, this article should not be considered legal advice – the needs of every organisation will vary.

  • Have a clear escalation policy.  It is too easy for a junior member of the weekend shift to be panicked into a crowd-pleasing response from which the organisation might have to embarrassingly row back.  The escalation policy should put a moratorium on any public statement being made by the organisation until staff with appropriate seniority (which may be the CEO or Chairwoman) have been consulted.
  • Remember that any public response must take account of legal responsibilities, for example under employment law or the Equality Act.  It must also avoid anything which is likely to be defamatory or any person or organisation. This is a very complicated area of law but as a starting point, if you write something which refers to a living individual and would tend to lower their reputation in the eyes of a reasonable reader, give strong consideration to alternative wording. However, the legal niceties of when something is and is not likely to be libellous (in the sense that it would give rise to a viable legal claim) are extremely complex and beyond the scope of this article. If you are in any doubt, it is worth seeking some professional advice before you respond. 
  • Put in place a draft holding statement like the one below.  This can be quickly adapted for publication once the escalation policy has been followed:
[Organisation] notes the allegations/complaints being made about [Name].  [Organisation] takes its values very seriously and these values include fair treatment of its [customers/employees/agents].  [Organisation] will look into the circumstances in more detail before taking any further action.  No further public statement will be made on this matter [until the circumstances have been investigated].
  • All team members should understand the need to refrain from further public engagement, even if customers, clients, advertisers, funders and industry bodies are tagged into the “debate”.  In rare cases it may be appropriate to make pre-emptive contact with key stakeholders to ask that they respect your position and not make any public comment on the matter.  If done at a senior level, most will understand the need to follow due process.
  • Make contact with the Individual, particularly if an employee, to tell them that no precipitate action will be taken and that any further investigation or process will allow them to be heard.  Depending on the circumstances, you might ask them to withdraw or edit their statement, at least pending further discussions.  However, we suggest you should avoid compelling or pressuring them to do so.
  • Ensure that any follow up investigation or action is conducted in accordance with internal policies and applicable law and regulation, such as the Employment Rights Act, the ACAS Code of Practice on Disciplinary and Grievance Procedures, and  the ACAS Guide: Discipline and Grievances at Work.  It is surprising how often organisations are panicked into ignoring their own policies, leaving an open goal for further action.
  • Line managers and department heads should be briefed on how to respond if employees complain, as when  a group of employees at Hachette UK objected to being asked to work on JK Rowling’s new children’s story, The Ickabog, because they disagreed with her views on transgender issues.  We suggest that the holding statement above can be adapted for this purpose. 
  • Any investigation or disciplinary process is likely to involve consideration of internal policies (particularly D&I and respectful working environment policies).  You should seek as far as possible to have tailored, rather than template, policies and ensure that they correctly reflect the law (for example in correctly reproducing the nine protected characteristics under the Equality Act). 
  • We also suggest that policies be drafted with an eye on the values of freedom of speech and diversity of thought and the potential for conflict of rights, such as employees’ rights to express and campaign for their political opinions.  An organisation’s policies and values should neither require Groupthink nor rule out the possibility of respectful disagreement.

Finally, social media pile-ons are unpleasant and often aggressive.  Remember if your agent, client or employee is being targeted, that this is an Individual with whom you chose to work.  Your response to a pile-on should always keep in mind the possibility that the mob may be mistaken.

[1] See the case of Maya Forstater v CGD Europe and others: 2200909/2019

[2] Gillian Phillip, a bestselling children’s author, was  sacked from the team writing under the “Erin Hunter” name after expressing support for fellow writer J. K. Rowling

[3] Actor, Laurence Fox was called a “disgrace” by Equity after expressing views about racism (or the absence thereof) in this country on Question Time .  Allison Bailey, an English barrister, was the subject of complaints after co-founding the LGB Alliance.  Without first discussing it with her, her chambers, Garden Court, tweeted that they were investigating Ms Bailey, implying that her behaviour warranted investigation .

[4] Forstater is in proceedings against her former employer, Fox won an apology from Equity, Bailey raised over £60,000 in under 24 hours to fund a claim against Garden Court and Stonewall