A manager whose #MeToo tweet went viral was victimised by her employer after she gave an interview to a major newspaper, the London Central Employment Tribunal has ruled.
The court held that the conduct of a senior leader at the National Lottery Community Fund was “unacceptable” after a meeting left his employee “crying and tearful.”
This was compounded by a subsequent email received by the employee, which the court decided constituted a second detriment as a direct consequence of her protected acts – posting the tweet and giving an interview.
The claimant, Ms Gutfreund-Walmsley, began her employment at the fund – formerly known as the Big Lottery Fund – as public affairs manager in January 2017. On 23 January 2018, she watched Newsnight on BBC2, which included a report about undercover journalists who had exposed harassment of hostesses working at the notorious men-only Presidents Club black tie charity dinner.
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The item discussed the treatment of hostesses at the club and the use of non-disclosure agreements in the context of allegations of sexual harassment. While the programme was on air, Gutfreund-Walmsley posted on Twitter: “Having been a hostess, I can confirm you don’t have to sign a non-disclosure contract unless there’s something an employer wants to hide. 33 years this event has been happening. They knew. #Times Up #PresidentsClub #MeToo #newsnight”.
Under the organisation’s code of ethics, her act of tweeting was classed as a “political activity”. Employment Judge Mason held it was “important for the respondent that it remain[ed] an apolitical organisation.”
At the tribunal hearing, Gutfreund-Walmsley accepted in oral evidence that her social media presence was potentially of concern to her employer, despite a disclaimer in her Twitter bio that stated her views were personal.
The tweet received significant media attention and she was asked to give various television and newspaper interviews.
The next day, the public affairs manager told her line manager, Ciaran Osborne-Coulson, about the tweet. She added she had received several media requests. She asked him what she should do and he replied: “It is up to you”.
She then asked Grant Baskerville, senior head of policy and public affairs, “whether it would be okay if she did some interviews with journalists”. Baskerville said words to the effect of “I wouldn’t do it if I were you”, the tribunal heard.
Shortly after this brief conversation between Gutfreund-Walmsley and Baskerville, he left the office to attend a meeting.
Following a request later that day from TheTimes newspaper, Gutfreund-Walmsley sought the advice of Riz Issa, senior head of strategic communications, and Jenny Olsen, senior head of communications. Issa advised her that as long as the interview was not connected to the fund, it was up to her. Olsen told the claimant she “needed to think really carefully about doing an interview and that there was no guarantee she would remain anonymous.”
Later that day, the claimant conducted an interview with The Times on an anonymous basis.
That evening, Baskerville received an email from Issa forwarding him copies of the email chain between her, the claimant and Olsen. He stated he was “not particularly happy” that Gutfreund-Walmsley had not informed Issa of his conversation with her earlier that morning; he felt he had given her “a strong view not to [give interviews] and it was inappropriate for her to not even mention this to [Issa and Olsen] during their discussion.”
He called a meeting the following day, 25 January 2018, and told the public affairs manager she had “acted in a risky way.” He chided her “failure” to mention to Issa or Olsen that he had recommended she not do any interviews. He told her she should have known better and had demonstrated poor judgement.
Osborne-Coulson, who was in attendance, said both were “visibly angry throughout the meeting” and although Baskerville did not raise his voice, his tone was “strong”. The court held Baskerville did not fully appreciate the “human element” of the case.
Gutfreund-Walmsley was “distressed and at one point started crying in the meeting and remained tearful until the end of the meeting”.
She told the court: “During the initial meeting, I felt intimidated, humiliated and threatened. The meeting left me feeling under attack and anxious to the point where I could not sleep or eat and was more anxious and teary.”
The judge said: “Baskerville paused briefly, but it is not in dispute that he did not suggest adjourning the meeting and we do not accept that he otherwise expressed or showed concern for her welfare.”
Gutfreund-Walmsley said she felt like she was “being scolded” and that she was angry for being reprimanded in circumstances where she had sought advice in the correct way.
The next day, Baskerville emailed her outlining his interpretation of what had been said in the meeting. Gutfreund-Walmsley was upset by this email. She responded on 29 January to say that his overview of the meeting did not reflect how she interpreted the situation and that, having consulted with her union, she had lodged a formal grievance.
She had started looking for another job prior to the incident and on 5 February was offered a new role. She tendered her resignation on 6 February to Osborne-Coulson.
Employment Judge Mason ruled: “The respondent subjected the claimant to a detriment because she had done protected acts. The detriments were because of the protected acts; there is a clear causative link, as the meeting only took place and the email [was] only sent because of the claimant’s tweet and the interview.”
The court awarded Gutfreund-Walmsley £6,000 compensation for injury to feelings. Additional claims for harassment and discrimination were dismissed. She told the court that throughout the process her “professional and personal integrity” was brought into question: “Speaking out about historic sexual harassment was met by my managers with disdain and criticism.”
A spokesperson from the National Lottery Community Fund said: “We are delighted that the tribunal agreed with us that sex discrimination and harassment did not take place. We are, however, disappointed that it accepted there was some ‘victimisation’ at an internal meeting – we believe the tribunal got this wrong and are considering whether or not to appeal."
Croner associate director Paul Holcroft said the case highlighted the breadth of a “protected act” for the purposes of victimisation. “When taking action against matters such as inappropriate emails, tweets or other forms of communication, employers will need to assess the true meaning behind the communication,” he said.
“Taking a common sense approach, is the employee doing something in connection with discrimination laws? If they are, the employee will be protected against being subjected to less favourable treatment.”
He added employers must ensure that taking action for a breach of the workplace rules focused on the way in which the employee broke the rules.