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A tribunal decision that merits careful study by charities, unions, policy-makers and wider society

In light of Edinburgh Rape Crisis Centre being found to have constructively dismissed a worker who held that service users should be able to know the sex of the staff they were seeing, ANN HENDERSON argues that lessons need to be learned in order to uphold women’s rights

THE delivery of services that women need, services that treat women with respect, dignity and privacy, recognising that sex matters, is the focus of another landmark employment tribunal decision.

Roz Adams, a support worker at Edinburgh Rape Crisis Centre (ERCC), took her employer to tribunal on two counts, and the tribunal unanimously reached the decision that, firstly, the respondents unlawfully discriminated against the claimant on the grounds of religion or belief and, secondly, the respondents unfairly constructively dismissed the claimant. A remedy hearing date will be set in due course.

Adams was represented at the tribunal by Naomi Cunningham (Legal Feminist, Outer Temple Chambers) and Katy Wedderburn of Gunnercooke solicitors. In Adams’s statement, in response to the tribunal decision, she credits this legal team, friends and family, Nonviolent Communication and work colleagues, Unite the Union (including Alice Bowman, Unite’s appointed solicitor at Allan McDougall), and all supporters. The process has taken three years. The full decision is published and requires careful study.

It should have an impact on policy and funding decisions at Scottish government level, on the Office of the Scottish Charity Regulator (OSCR), on Rape Crisis Scotland and, as Adams says, it “is a victory for all those who have been subjected to sexual violence who need a choice of worker, and group support, on the basis of sex in order to feel safe.”

The tribunal decision is clear that it is entirely reasonable for a service user to be able to get an honest and accurate answer when seeking assurance that they will see a female worker, or a male worker, and that the sex of that worker is the relevant fact. 

The successful six-word amendment to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill in December 2020, from Johann Lamont MSP, similarly established that “victims of sexual offences must be given the opportunity to request that the person who is to carry out a forensic medical examination be of a specified sex.” (The amendment had replaced the word “gender” with “sex.”)

These decisions are of particular importance to women, and in Scotland there is considerable work to do to look again at the political culture, funding criteria, the training and how to deliver the services which women of Scotland require. With the knowledge that the vast majority of those experiencing sexual violence are women, and that this violence has been perpetrated by a man, we are again reminded that sex matters.

At the end of last week, the Scottish Green Party, which operates separately to the Green Party in England and Wales, hit the headlines as it expelled 13 members for having signed up to the Scottish Greens Declaration for Women’s Sex Based Rights. The declaration recognises sex is a biological reality, supports the sex-based protections of the Equality Act, and argues that women and girls have the right to discuss policies which affect them without being harassed or bullied.

These entirely straightforward points were deemed to reflect “trans exclusionary views” and to be hostile to trans and non-binary members of the party.  

This is the same Green Party that was recently in the Bute House Agreement with the SNP, working together to govern Scotland, not displaying much tolerance or serious attention as to how to deliver vital services for those subjected to sexual violence, when those individuals require care and support in an environment that acknowledges that sex matters.

The details of the Adams v ERCC employment tribunal decision is being examined carefully. This is about far more than any one individual. The ERCC board, as with any board of a voluntary sector organisation, has an obligation to ensure good governance. The ERCC is a member organisation of Scottish Council of Voluntary Organisations (SCVO) which provides guidance on the role of boards and trustees: “Trustees … need to … act in the best interests of the organisation and its beneficiaries, following all requirements of law and regulation. This is sometimes referred to as the need for ‘due diligence’.”

ERCC is a charity registered with the OSCR, which brings certain legal and financial responsibilities for the board and trustees. OSCR also provides guidance for trustees as board members, including emphasising responsibility “to act with care and diligence,” and to have due regard to equality law.

The findings of the employment tribunal in relation to the role of the ERCC board members deserves closer inspection, but also will throw up questions for all those charities working in this sector.

There are important lessons too, with regard to the establishment of clear and fair disciplinary processes in a workplace. The Scottish government purports to adhere to Fair Work Framework, as outlined through the Fair Work Commission in which the Scottish TUC participates. 

The principles of Effective Voice, Respect, Opportunities, Fulfilment, and Security seem sadly lacking in the ERCC workplace, according to the tribunal’s account of the practices that led to the constructive dismissal claim being upheld. 

If Scottish government is serious about holding those it funds to account on the Fair Work principles, then far more attention needs to be paid to what is actually happening in the organisations working in the violence against women and girls sector. 

From the tribunal decision: “…it would appear that the respondent’s CEO had formed the view that the claimant was transphobic. This led to a completely spurious and mishandled disciplinary process. The investigation was deeply flawed…

“The investigation should not have been launched in the first place and was clearly motivated by a strong belief amongst the senior management and some of the claimant’s colleagues that the claimant’s views were inherently hateful. The disciplinary process itself was deeply flawed.”

The representative from Unite the Union picked this up repeatedly, and was also, according to the tribunal report, effective in securing a short extension to the claimant’s sick pay. Unite legal representation took the case through the initial Acas process. While the case was then taken to the employment tribunal with other legal representation, there should be a recognition that the trade union did highlight the complete disregard for any sort of fair or reasonable grievance or disciplinary process and supported the member accordingly. 

Going forward, the trade union movement, Scottish government, public policy-makers, funders and wider Scottish society must take the time to draw lessons from this tribunal decision. 

Change has to come, if we are to really make progress in supporting women and girls who have experienced sexual violence, and to invest in, support and represent, those who are working in these essential services.

Ann Henderson is former assistant secretary of the STUC and a former Labour NEC member.


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