Thread by @tribunaltweets

Good afternoon, this is @GoodyActually Jenny Smith tweeting from the employment tribunal hearing the case of Maya Forstater v CGD & others. This is day 9 and the afternoon session is due to begin at 2pm.

Abbreviations:

MF = Maya Forstater – Claimant

CGDE (CGD Europe) – Respondent 1
CGD = Centre for Global Development – Respondent 2
MA = Masood Ahmed, President of CGD and Chair of the Board of CGDE – Respondent 3

The courtroom:

BC = Ben Cooper QC, counsel for MF
AP = Anya Palmer, assisting BC
OD = Olivia Dobbie, counsel for the respondents

EJ = Employment judge, leading the three-person panel hearing the case.
Panel = any one of the three members

This session, giving evidence:

MP = Mark Plant, Development Finance, Senior Policy Fellow (CGD); COO of CGD Europe (originally from USA, based in London since September 2018)

Previous witnesses:

LE = Luke Easley, Director of Finance and Administration / HR Director (based DC)
AG = Amanda Glassman, Senior Fellow and Board Secretary [DC]; Trustee of CGDE (based DC)

Other parties are not expected to be witnesses, but are mentioned often enough that initials required for speed:

CH = Cindy Huang, Co-Director of Migration, Displacement and Humanitarian Policy; Senior Policy Fellow (based DC)
EM = Ellen Mackenzie, Chief Financial Officer and VP Administration, CGD [DC]; Trustee of CGDE (based DC)
HS = Holly Shulman, Director of Communications (based DC)

Anonymised:

C1, C2, C3, C4 = four individuals who recorded complaints against MF and who in respect of whom reporting restrictions (preventing publication of their names or email addresses in Great Britain) are in place.

And the parties to the case:

MF = Maya Forstater – Claimant

CGDE (CGD Europe) – Respondent 1
CGD = Centre for Global Development – Respondent 2
MA = Masood Ahmed, President of CGD and Chair of the Board of CGDE – Respondent 3

We begin.

EJ: Would all observers and everyone not going to speak please mute.

EJ: [reminds re reporting restrictions, see above]

BC: Before 6/12 SPG meeting you email MA, EM, LE, AG - you are seeking to ensure you understand the consensus as far as it exists - fellowship and/or contract re Gates grant

BC: you say you understand EM does not want to renew
MP: yes
BC you say MF has done everything asked of her, has done diversity training
MP: yes

BC: Claimant not being intransigent
MP: no

BC: your statement says you remember EM and LE speaking against claimant
MP: correct
BC: you are careful to take what has become party line - re EM/LE you say they talk of offensive nature of MF choice messaging

BC: and behaviour but it wasn't was it. Was EM's visceral reaction
MP: No I recall objectsions to behaviour and messaging

BC: You have given no examples of behaviour and offensive messaging
MP: no I have not

BC: upshot of SPG meeting - that no final decision taken
MP: correct
BC: but a process was to happen, 3 poss outcomes. Is this correct
MP: yes

BC: Process not limited to considering fellowship
MP it was not
BC: it was looking at relationship in round and was bascially should we have relationship at all and if so what
MP: correct

BC: decision to start investigation was certainly bcs of opposition of those who spoke against at SPG
MP: take issue with "investigation". Was clear at SPG that not everyone had full knowledge of tweets etc so we should assemble full brief especially for MA benefit

BC: Purpose of this was to establish facts surrounding claimant's expression of belief yes?
MP: yes and around her relationship iwith CGD
BC: to ensure SPG proceeded on infromed basis
MP: yes

BC: to establish whether what claimant was improper?
MP: whether what she had done would in any way prevent her working with CGD. Would not say "improper"

BC: not hung up on terms, but, you were going to reach a view on propriety of her actions yes?
MP: whether CGD wanted to be associated with that conversation even as distantly as ...
BC: I think you are agreeing with me.
MP agrees

BC: When you are undertaking such an exercise - wehther someone will hvae relationship with CGD - transparency demands the person in question can be involved
MP: yes

BC: for fairness, must know what matters are being raised?
MP: it should be yes

BC: we can quibble over word "investigation" but we see from LE's email it is a factfinding at the least
MP yes
BC: Mr Ahmeds' term
MP yes

BC: LE describes is at as analagous to an investigation re diversity/inclusion policies
MP: not sure what analogy he makes

BC: part of process should have included understanding UK debate
MP: yes

BC: part should have been what was office culture in which she was engaging
MP: yes

BC: another - re whether CGD can engage bcs workplace sensitivities - should be to get broad views from that workplace
MP: not necessarily no

BC: Do you mean that if 1 person objected but 99% found interesting/important, only that 1 person's view would matter? 99% unimportant?
MP: not unimportant but the 1 person couuld matter a lot

BC: I meant, you have to understand opinion in the round, not just the views of 1 or a few people?
MP: yes

BC even if you didn't want to send out questionnaires you could at least have asked claimant who she had spoken to?
MP: yes
BC: give her the chance to suggest witnesses in other words
MP: You are talking as if it was an invesigation

BC: I am not sure I understand the discticntion but leave terminology aside. It is a matter of basic fairness. If you are going to go fact-finding and making decisions, fairness requires you give someone chance to respond, present case, know what it claimed

MP: We did involve claimant but perhaps not at right time, was in due course, that is why LE spoke to the people he did

BC did MF have chance to comment on process
MP: no
BC: chance to scrutinise matters on informed basis
MP: I believe so yes

BC: Will give you opportunity to reconisder before we look at materials
MP: I believe she was but we can explore

BC: We know LE only asked feedback from peplpe who had made negative comments
MP yes
BC wwere you involved in that decision
MP was not

BC: Emails MP/MA/EM/LE.
BC: You suggest contacting Sue Owen, non-CGD trustee, you say MF is employee CGDEurope so process should come out of London office. (Not suggesting you say employee in legal sense)
MP: Loose sense yes

BC: Significant I say nevertheless - indicates claimant's status and position in CGD in London
MP NOt necessarily

BC: Your statement. You say you thought important to understand issues of dealing with MF through lens of UK employment law. You understand this as an employment question
MP: She was contracted and paid but loose sense of word

BC: You understood process you were watching was about how to treat someone as an employee.

MP: Someone on contract. Employment in broad sense

BC: But importantce of proper process
MP: yes

BC: Here we see EM pressing importance of initial Quantum Impact report which had been negative re MF tweets
MP: Yes

BC: At this point Miss Huang makes first contribution. CH is one of those organising with EM opposition. - you didn't know at time but do now
MP: did not at the time

BC: CH not here, will not ask you what going on in her mind. You were copied into the conversation a little after it began
MP: OK

BC: CH says she agrees issue is whether any conduct breached harassment policy. This is an investigation into that
MP: not only that
BC: CH says she hadn't jumped in at SPG, wanted to take another look at policy. She's agreeing with upshot of SPG meeting?
MP would infer that yes

BC: LE says akin to investgation under harassment policy
MP yes
BC: CH says should consider wider than tweets - conversations, pamphlets
MP: yes

BC: Is this the "amplification technique"?
MP: No ...
BC: but it *did* all end up wider than just tweets?
MP: yes it did

BC: So people involved in the conversations and pamphlet thing need to be asked about it?
MP: I guess so

BC: I have not been able to find any reference anywhere before this to pamphlets. Can you?
MP: Don't think so
BC: Do you know where CH got the pamphlets thing from?
MP: COuld only speculate

BC: Did you look at time at the pamphlet?
MP: No
BC: Was not considered by Ms Szabo?
MP: Don't think so
BC: By Quantum Impact?
MP: I think it was?
BC: I think you are wrong, we will look later

BC: No pamphlet in disucssion with MA?
MP: No
BC [lists a number of people, MP says no to all]

BC: Here we see CH mentioning a video, did you watch it at time?
MP: no
BC: before 5/3?
MP yes when I got QI report

BC on 5/3 did you tell MF video was part of the problem? People had said like Nazis? Was it the red and black?
MP: yes
BC: who did it remind?
MP: It reminded me

BC: "People" means you?
MP: yes

BC: CH last point says claimant has responded helpfully - accurate?
MP: yes

BC: Discussion on 10/12 on how to take process forward, upshot here email from Sara Godfrey says, "CH very helpful email - we should bring her on to process" yes?
MP: yes

BC: which ultimately happened?
MP: Yes I think CH was seen as a champion of DC office and fair arbiter within it. Trusted inc by me

BC: email with LE and the ombudsperson. He asks advice and says to OB - can't be you, that might be percieved as investigatory. But it WAS investigatory was it not
MP: I did not think of it as investigatory.

BC But we saw proposal to bring CH as impartial. But we know now she wasn't.
MP: We don't know what EM/CH were saying
BC: and they are not being called as witnessese are they
[no response]

BC: We see antiharrassment policy being circulated. Says chance to discuss at all-staff DEI workshop January. Claimant treated as staff yes?
MP: She asked should she, not sure if staff? I said she should

BC: there was to be a discussion of the policies
MP: yes
BC: Standard CGD culture for that disucssion to be challenging and serious
MP: yes

BC: MF wrote some comments on the policy, made 3 points. Criticised / raised examples of how prohibited conduct was described. She points out sex & gender reassignment separate in UK law collapsed to one, "gender"

MP: yes she does
BC: fair point - to say policy out of line with UK law?
MP: yes
BC: she makes same point in different context later?
MP: yes

BC: She then looks at point about sending or receiveing any graphic anything to do with any protected group. She says too broad?
MP: yes
BC: fair criticism?
MP: yes can be discussed

BC: because policy makes not distinction on the reasonableness of anything
MP: would have to consider that sorry

BC: It also makes "offence" the criterion for policy breach. That's not enough in a democratic society is it?
MP: would have to think about that
BC: Makes my point - these things she raises merit serious thoughjt
MP yes

BC: for example she gives as example that saying males identifying as women. She says that is UK law - but policy would make saying that offensive. On face of it, circulating a copy of the law would be breach. She says.
MP: yes. Not sure she is right re law

BC: We do - EAT decision
MP: As I understand that decision yes

BC: She is showing you potential problems with the policy?
MP: yes
BC: and you should allow discussion of those issues?
MP: debate should be had yes but point is where, when, ground rules

BC: You replied to MF saying thanks for comments, look forward to the session on 15th Jan and discussing. You don't say she'd said anyting inappropriate?
MP: no
BC: she hadn't?
MP: no

BC: now email to MA/EM/LE from you. You ask for clarity re MF's comments before the workshop happens. You say "1 legitimate others not" but you don't say which. But you now agree with me, all legitimate?
MP: yes I agree with you

BC: The workshop was by Quantum Impact consultants. They ended up using 1 of the things she said that day as a criticism in their report
MP: I think she said it afterwards -

[WE PAUSE because OD counsel for responsdnets has lost her connection to the hearing]

OD: - connection restored. Mr Plant had just said yes debate but what ground rules.
EJ: [summarises what has been said since, including giving all page references]

BC: The workshop was by Quantum Impact consultants. They ended up using 1 of the things she said that day as a criticism in their report
MP: I think she said it afterwards - was not part of formal training

BC: But they used it
MP: yes
BC: Is fair for consultants to use stuff during a break in a training day in their report
MP: it is if typical of someone's conduct

BC: Fair to have informal conversation with someone investigated?
MP: not sure they had been commissioned then?

BC: I think you are mistaken re chronology - we see here -
MP: yes - it was 14th

BC: Is it fair for someone invesigating to rely on an informal conversation in a break only a day later?
MP: It is valid information

BC: Is it fair that if you are going to rely on somthing someone says, they should be able to respond?
MP: She had opportunity to repsond in due course

BC let's look at version of QI report that was NOT sent to claimant. Here is criticism of claimant in respect of that conversation
MP: correct

BC: they say object is mention of genitals, they say CGD policy is no such discussion. But Mr Barder talked a lot about his vasectomy.
MP: He may have
BC: You can't discuss FGM without.
MP: that's different

BC: Now we look at what MF says about that conversation. You didn't know this because MF had not been sent that report and did not know it was complained of
MP: No hadn't seen it

BC:Nobody ever told her that converstation was basis for complaints made about her re genitals and sex lives
MP: yes

BC: MF says she introduced herself on the day because she thought they'd be interviewing her at some point,. you'd told her that.
MP: yes

BC: She asked how aware of the UK context/debate they undersood.
MP: yes
BC: They responded by telling her everyone should be able to self-identify. THat's not open and impartial is it?
MP: If claimant account accurate yes

BC: No evidence MF account incorrect
MP: no

BC: QI also said all objection to self-id = prejudice. Not impartial. Not right people to investiage
MP: don't know

BC: QI introduced gay rights. MF observed that in UK many objectors to self-id are gay/lesbian. Fine to mention sexuality in that context?
MP: yes

BC: MF mentioned one problem being lesbians pressured to accept intact male transwomen as sexual partners. OK to raise in that context? You are aware of this?
MP: aware yes
BC: So ok to raise?
MP: in that context yes

BC:Legitimate to say lesbians should be able to say no without being called bigots?
MP: yes

BC: MF says one consultant said yes but then they couldn't call themselves lesbians becsause that must include transwomen. Isnt' that denying people's identity?
MP: Don't know

BC: When you got claimant's statement, did you investigate QI consultants for saying things that challenge other people's reality and identity?

MP: No we did not

BC: 17/12 MF emails to ask you for update, you reply there's a bit of language you want to eplain. This is 10 days after SPG mtg and nobody has said anytnig to MF
MP: no

BC: You did speak to MF later that day. Did you say there had been strong opposition
MP yes
BC: Did you say because of tweets
MP: I think I said factfinding in process and yes that tweets part of it

BC: MF says she wouldlike to make case, because this is policy issue throughout world and should be discussed. COnsistent position that argument not offensive per se
MP Yes

BC: She mentions re UK law. Right about that?
MP: I know that now

BC: She's not insisting you agree with her - she's saying her position is important and should be disucssesd
MP: yes

BC: She sent blog. You didn't reply saying it wsa offensive or anything
MP: No, but, not sure how much I read

BC: Section here on "what is a woman" - paragraph about it. Ends "men are not women".
BC: QI report says she's saying there have never been transppl. It doesn't does it
MP: No

MP: I think point QI making is that there are such things as intersex people and that has been recognised a long time
BC: MF in blog addresses this. And that's NOT the point QI making

BC: [reads bit of QI report] this is not what MF blog says is it.
MP: they are saying "what is a woman" is not so unambiguous as that.
BC: OK that is your answer.

BC: suggest break
EJ: resume 3.35. On return can we check on timetable.

[BREAK]

[We resume]

Timetabling:
BC: I am still hoping to finish at the end of tomorrow. I had Ms Glassman longer than I had expected but I hope to make up re Mr Ahmed tomorrow. But might run over to Monday

BC: Monday we should use for any run-over, plus if it is made OD's application. And then closing submission Tuesday and Weds.
EJ: Let us review at end of tomorrow

EJ: reitierates reporting restrictions, see near top of thread

BC: We have MF emails you 19/12, she says "it feels like not in my interests to be so outside process". She is asking to contribute.
MP: correct

BC: She says she understands this is disciplinary process, re tweets, but she's not sure whether tone or content. She states impotance of debate. You have let her understand this is disciplinary re tweets
MP: Disciplinary is her word
BC: you don't write back and correct
MP: no

BC: She says, not sure if tone or content of tweets.
BC: You do not write back and say "it's tone Ms Forstater and these are the examples"
MP: Process was still ongoing, we were still factfinding, developing strategy for going forward

BC: She has asked about process, asked to be involved, This process is not fair is it Mr Plant
MP: Disagree

BC: This is because of your collegaues pressures.
MP: Can't say what colleagues thought
BC: You didn't want to tell her
MP: Was afraid that anything from her the situation would get even more inflamed

BC: You wanted some rules/procedures to be given to you
MP: not at this point no

BC: Ms Szabo has said if you don't have clear rules, you can't say if someone has stepped over a line
BC: Ms S had said you had to have clear policy applying to everyone, not just claimant

BC: And the trouble with the QI report is that instead it says, claimant's belief must not be spoken.
MP: Disagree it says that

BC: you were in impossible solution, because of your colleague's opionions, of looking for a solution that was not there
MP: very complex situation, was trying to find my way throuigh

BC 20/12 you give MF a bit of an update. You say things clear this side of Atlantic and you will be involving CH and Ms Szabo. You advise MF not to make respresentations.
MP: yes but could not tell her not to

BC: And advised not to becasue colleague pressure
MP Yes thought would inflame

BC: Back to email that talks of visceral reactions. You note controversial debate in UK. You say must find solution that protects MF rights but also recognises outrage of other colleagues. You are not drawing tone/substance distinction
MP: "positon" cd cover both tone & content

BC: But here [other doc] you distinguish "position" from "expression"
MP yes but both were at issue
BC: You knew it as position not language your colleagues objected to
MP it was both

BC: MF got no chance to input to Ms Szabo's terms of reference
MP: No

BC: Ms Szabo was to review docs provided by you
MP: yes
BC: You provided them all as a briefing note
MP: correct

BC: Ms S to have convo with you and CH. Happened 5/1
MP: yes

BC: there are no minutes or notes of that convo
MP: no

BC: Ms S is to meet MF either in person or videolink to discuss tweets with her. You say instatemetn up to Ms S how to conduct investigation. You say "investigation"
MP: yes
BC: That is what this was
MP: yes

BC But NOT up to Ms S. THere were terms of reference
MP yes
BS: Meeting MF not optional
MP: no

BC: But you didn't raise to Ms S when report produced
MP: Did not feel meetingMF would have added.
BC: MF had no chance to do [LONG LIST OF THINGS MF not chance to do] MP to all: She did not

BC: You comment on Ms Szabo's draft report, you were keen to ensure insertion of "business reasons" re not employing MF. No wait - it's in fact CH wanting the insertion.
MP: yes

BC: No mention of any particular business need. Just generic
MP: yes
BC: was that becasue you knew MF would challenge any specific thing you tried to cite
MP: No

BC: MF had no chance to respond to this business needs comment.
MP: CH's comment, but no MF not given chance

BC: MF had emailed you over CHristmas to say how distressing she was finding the whole process.
MP: correct

BC: She says hanging over her head making anxoius re year ahead. You sympathised
MP: yes
BC: She says don't know what they are saying about her in Washington. She didn't know did she
MP: no

BC: She says she doesn't know what process is
MP:correct
BC: She says she doesn't know when it will finish
MP: nor did I know

BC: She says she doesn't know what being investigated about
MP: I thought I had mentioned tweets to her
BC: She says she is left in situation of stress, isolation, uncertainty
MP: yes

BC: YOu reply saying you understand and are pushing ASAP, and to talk tomorrow. You in fact didn't speak until 14/1
MP: there were shecduling difficulties
BC: you at no point actually answered her Qs
MP: no

BC: Ms Szabo report comes 13/1
MP: yes
BC: Ms S says has NOT done any independent investigation. So factfinding = only what you had given her, and your convo with her
MP: correct

BC: Ms S concludes re "is MF in breach anti-harassment policy?" that there is insufficient evidence to reach that conclusion
MP: Yes she says this and explains it

BC: Ms S notes this is based on the written briefing and verbal briefing you had given her. That no policy existed re external debates that MF should have known about
MP: correct

BC: Ms S says re "is MF conduct reputational risk?" - opinions cd be associated with CGD, are they damaging, Ms S says CGD has no stance on it so no. Says there are differing opionions on the debate and nothing in employee handbook would damange.

BC: does this mean your briefings had informed Ms S to reach that conclusion. That there are different opinsions as to whether reputational damage.
MP: yes

BC: So therefore no basis for *finding* reputational risk
MP: correct

BC: We are in Feb 2019. You acknowledge risk could exist but that in the UK it could run the other way. This is the differences of position you told to Ms Szabo.
MP: yes

BC: Ms S very explicit no decision should be taken by CGD before MF has had opportunity to read and comment on report
MP: yes she is

BC [invites MP to read a section of bundle]
BC: My understanding of that is that per Ms Szabo, one function of the later QI report would be to inform MF in clear terms what concerns are.
MP: yes - QI report to be shared with her.

BC: Ms Szabo v clear that this should not be a one-sided exercise. She thinks it equally important that those complaining about MF should understand MF's views, and understand UK context.
MP: yes

BC: You had in person conversations with Ms Szabo too. Can I infer that while Ms Szabo's report is measured/reserved, she did make clear to you that she saw fault on both sides?
MP: yes this is email from me to MA -

BC: you refer to Ms S saying outside the report that X needed. You had additional and more detailed conversations with Ms S
MP: yes

BC: And one thing she said was that MF views v much not uncountenancable, and more understanding needed on all sides./
MP: don't reacall detail

BC: Ms S v clear you must not hold MF to standards not imposed on others
MP: don't remember the convo, other than what I wrote about it afterwards

BC: Here you email the core group who are deciding how to proceed, re next steps
MP yes
BC: based on Szabo report
MP yes

BC: at this point is introduced idea that CGD must not let it be seen as disciplinary process. Ms S had said that CGD has no stance on the issue, and no bar on anyone discussing those.
MP: Yes and Ms S says that's a problem for us

BC: Ms S clear that there must be policy if it's needed for claimant AND everyone else. Must decide whether to tolerate heterodox views.
MP: and to what extent

BC: Q is whether you would tolerate gender critical beliefs
MP: yes

BC: So about the QI report. Ms S says MF should contribute to it. That means, to its writing
MP: yes
BC: and read it when done
MP yes
BC and comment on it
MP yes

BC: And you say looking for practical route to continue MF in employment (in loose sense)
MP: yes

BC: 14/1 you told MF QI are doing report, but that not disciplinary
MP: Let me check
BC: I am going from claimant's account
MP: I think I didn't have a record of that meeting

BC: I will ask about what she says and ask you if you remember and if not whether it could have been
MP OK

BC: You said QI report coming
MP: probably
BC: you said it was about general policy
MP: don't know
BC: and that they would talk to her
MP: dont know

BC: You didn't say Ms Szabo had already reported, or what it said
MP: don't know

BC: So here are your instructions to QI. You explicitly brief that CGD does not have explicit policy stance and colleagues are free to comment as they wish. QI should have understood CGD has no instutional position
MP: Externally yes tho we do internally

BC: You say MF should be allowed to contribute, read when done, comment
MP yes

BC: One author, Farah?
MP: I think joint but mainly
BC: They did not speak to MF
MP: no

BC: Here they send you drafts, pretty finalised. They talk of conferring with colleagues with more legal expertise with HR & trans issues to make sure nothing missed. They mean non QI people?
MP yes

BC: No notes of those conversations made, or given to anyone, other than actual report content
MP they didn't to me.

BC: LE asks if they have record of materials reviewed, and Farah says not a lot, just notes nobody will manage to read
MP: yes correct

EJ: Intervenes - shall we break for the day?
BC: yes
EJ: reminds MP not to speak to anyone re case.
[END]

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