Thread by @tribunaltweets2

Good afternoon. This is the final session of Toshack vs GeoAmey. We expect to resume at 3pm. For Women Scotland vs Scottish Ministers continues on
@tribunaltweets

Mr Toshack (DT) asserts that he was dismissed because of his gender critical beliefs. His appeal against his dismissal was subsequently upheld. He is claiming harassment, discrimination and indirect discrimination on the grounds of his gender critical beliefs.

Our Substack with background on the case, and reporting threads from earlier days of the tribunal can be found here: tribunaltweets.substack.com/p/toshack-vs-g…

The usual disclaimer about our reporting:

Abbreviations:
DT/C - David Toshack, claimant
DH - David Hay, KC, for claimant
MG - Margaret Gribbon, solicitor for claimant
GA/R - GeoAmey Ltd, respondent, a British company specialising in prisoner transport
MM - Michael McLauglin, advocate for Rs.

J - Employment Judge Amanda Jones, sitting alone
ITC - initial training course
CH - Chris Hutton, course trainer
SH - Sarah Harvey, course trainer
SW - Stephan Weir, trainee with DT
FSU - Free speech union
PP - preferred pronouns
PER - Person escort record

SOP - Standards of practice
PCO - Prison custody officer
BITWB - born in the wrong body
GRC - Gender recognition certificate
GC - Gender critical or sex realist beliefs
GI - Gender identity
TW - Transwoman, a male who identifies as a woman
TG - Transgender

TM- Transman, a female who identifies as a man
TP - Trans identifying people
DEI - Diversity, equity and inclusion
SPS - Scottish Prison Service
ITC - Introductory Training Course
AGP - Autogynephilia/ Autogynephile
UB - Unconscious Bias

J Thank you both for submissions. Have read once fairly thoroughly and then again, and will have to give it thought. I don't have questions for either of you at the minute though may have some later.
MM If need, we can...??

J Yes, I can do that.
MM/DH [sound?]

DH Will endeavour to give comprehensive subs to issues you raised. You may think I have said enough already! Suggest we adopt them and would like to emphasise certain points re MM...
J I was looking for any particular comment c any particular authorities

J That you wish to comment on. Would be useful.
DH First area - places a lot of emphasis on scrutiny of DT belief. and of DT cross examination. I have mentioned in my subs that's something of a trap
J You said red herring?
DH. Yes. [p9 of my subs and bullet points]

J Need to split my screen...
DH my sub - cardinal sin of R subs re belief [sorry- sound bad]. My subs - what R is seeking to do is to seek re way manifestation is unacceptable and therefore GC argument falls foul of Grainger 5 etc.

DH [re Chief Constable Norfolk.] If R correct - if that is the belief.. Social media content was not before the decision maker at the time. Someone accessed sm around Jan and Feb, but decision maker not aware at the time. So a q as to whether there was a perceived

DH belief by CH as to DT belief. Also re what SH said c DT's comments. But if there was a perception re DT belief, then what belief was CH thinking of. Can't be a belief based on events that came to light after the proceedings. Therefore was it disapproval of belief that DT

held or closer to For stater belief.
J You are saying need to distinguish between belief and manifestation of belief. R approach can't take that into account cos info not available at time of decision
DH And not in R mind at the time. Q of what R understood belief to be at time

of making decision. [Asks J to take into consdieration]
DH Also emphasis placed on [sound]
DH [ref to previous case - sound] [An EAT conclusion re Mr Thomas] Need to be careful as to how this reads across.
DH The Thomas case concerned extreme English nationalism

DH Considered the anti -Islamic view. He decided no place for individuals in society - in cross exam [quotes Mr Thomas c not being terribly upset c some kinds of violence]. This was v extreme case and therefore no general application

J Do you say anything about Mackereth - the doctor one.
DHYou asked was it a belief case. DT sees beliefs as being consistent with his religion, but not axiomatic with his Christianity. This is a For stater belief so not necessarily, but if you are not satisfied with that,

then yes, can refer to this.
DH To proportionality re manifestation. There is dispute c what DT said in meeting. I say on balance DT position was to offer to use preferred name and non-gendered pronouns which was the sticking ;point. If you accept that, then proportionality

is engaged. You don't tend to use pronouns other than you when in presence of someone, and could use non-gendered if necessary. It's for the R to establish proportionality of its response. If DT said won't use..
J That was a q I thought about. Whether or not what CH thought DT

was saying - that he would use Susan or Shirley - wasn't CH evidence. If CH didn't understand he would use name are you saying R has to justify..
DH In a meeting like this needing to find solution employer finds acceptable. [sound gone]
DH ...misunderstanding of SH c why DT did

what he did ....
DH If the manifestation is distinct... [ sorry, sound]
DH Points I need to respond to in R subs...[sound]
J Thank you. MM
MM Factual point of view - on the evidence DT view c m is m and w is w was known since start of ICT and no problems noted. His belief caused

MM no concern, inc with CH. We've had discussions c Tiffany Scott - DT's views are writ large. It's only 5 weeks later when it becomes consistent and we say heated discussion. DT refusal to follow instructions. Clear blue water between persistent refusal.

It may be DT was saying will use preferred name and CH thought he said would only use legal name. But we are left with situation where DT is saying I don't believe it, it's a lie, and I won't treat them as the person they want to be treated as.

J But doesn't For stater say doesn't believe but will treat the people with respect etc
MM Yes. She was measured etc. But here is different - passioned position in seeing T as a lie and won't use pronouns. And then he says he'll search anyone and will still call them Susan.

MM That's a world away from For stater measured and polite approach. DT contradicts himself in the mtg and CH tells him so. DH is doing damage to his PC case with his comments re the form. With the case I saw danger arising from FStater re philosophical belief and

... You need to say m is a m and w is a w and it can't change. You have to look at evidence. GC means something v different to MForstater than it does to DT
J Do you say m is m etc doesn't reach protection of protected belief.
MM Yes. It means more than that.

MM And DH saying it's no more complicated than a m is a m etc.
The Thomas case of English nationalism - the EAT judgment - lists structure of Thomas' views. J noted if that was it, the extent of his belief, the issues in case wouldn't have likely arisen.

MM But then J records the anti -Islamic stuff which wasn't in the pleadings and witness statement. Had there been no scrutiny of his position he would have been over the line on basis of his philosophical belief. But one aspect brought in was what was found in his sm posts.

MM That's like this case. Just a man is a man etc. You then delve a bit further, with sm and cross exam ... [goes to Thomas EAT decision, re getting manifestation of beliefs from sm etc and considering the sm elements as well] Thomas's sm was brought in to show true level of

his beliefs and that's what R has done here. Other views anti-t, anti-pride, anti-edi and expresses himself in perjorative ways. That's the source of evidence for his beliefs. He comes unstuck on 4 - coherence and cogency. DT falls on at least 3 or 4 of the Grainger steps.

MM If all that's required to get through door of this tribunal is just to say a man is a man etc the tribunals up and down the country will be swamped. It's more complicated. Grainger 2 - not just a viewpoint or opinion etc. Can't just be something you think and believe.

MM Must be background, thinking to elevate it to level of a philosophical belief. Bar mustn't be put too high - or too low. Balance of proof is on the claimant. Lack of evidence of structured thinking with DT. I asked if he'd done research, etc, and DT said just took it at

face value.
J To be fair to DT evidence wasn't just listening to anyone, but to ppl he thought were experts in their field.
MM Yes, but who were they. Have to look at evidence and who these ppl were. Jeopardy in this case is it's put as simple, man is man, etc. But no -

MM you need to establish more the basis of DT beliefs. Can't just sever off T and GC parts. Claimant - lack of evidence of required steps in Grainger.
MM CH evidence. Didn't pick up on Art 10 - didn't know what was talking about. CH told DT entitled to your beliefs

but it isn't about that. You need to follow these policies. If DT doesn't get home on PC he doesn't get home on facts.[?] There are no pleadings on that so great care should be taken
MM Re DH subs. Direct discrimination. No pleadings for hypothetical comparator.

MM He's wrong on comparator he says should be used. First, I submit can't go there cos no witnesses asked c this or evidence laid.
MM DH says correct comparator is someone who refused to not note c another prisoner using drugs but will record everything else...I say comparator

is another PCO, no other material difference
J I don't have to look at constructing a Hyp. Com. do I. Can get v complicated. Better to point out reasons why.
MM Back to the evidence. Dismissing manager had been aware throughout ITC of DT views, glowing comments re DT

MM It was only when DT refusing to do aspects of PCO job. Reason why was DT refused to change his stance. DT had expressed this view, 6 or 7 times by time dismissed, that wouldn't follow aspects of SOPs. DT out of door in short time but DT had made his position very clear by then

MM Repeated refusal to follow SOPs, mandatory part of job and policy requirements.
MM Para 55 of DH subs. Strong beliefs - CH said not reason why dismissed. Need to be taken in context of notes of meeting.
MM No challenge to legitimacy of aims. Suggested workarounds,

MM but they were faced with someone who hadn't even been signed off to do job yet, was being paid for training, not someone with years of service. Balance might then be different. It is someone who hadn't started job yet - that is the reason, not belief.

MM Doesn't matter there was only one eg cited of aggression/risk. This is about a person not going to be doing job. Breach of EA, contract, and risk - proportionality has to be seen through that lens. It not about number of times, but there is a risk. T

[missed - glitch]
MM That is all I have on DH's subs. I have some typos
J I picked up section 13 / 14
[MM looking through]
MM Also para 16. Should be 'he does not know' instead of 'he does know'
J Thank you very much much and thank you for the manner in which

J you have conducted these proceedings. I will issue decision in writing, hopefully within 3 -4 weeks. It can take a while for it to go through admin.
MM I didn't address remedy.
J I have your position on losses from the counter schedule.

MM IF DT decided to go ahead re gardening job, that would stop it at that point.
J Thank you. And I will issue decision in writing as soon as possible.
[ENDS]

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