Thread by @tribunaltweets

Good Afternoon. This is @katie_sok tweeting from day 12 of the #ForstaterTribunal. We are due to resume at 2pm with counsel for each side set to make their closing submissions. OD, counsel for the respondents, is expected to go first.

A reminder of abbreviations:

MF = Maya Forstater, claimant
BC = Ben Cooper QC, counsel for MF
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

Respondents are CGD, CGDE and Masood Ahmed (MA)

Respondents’ 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)

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

WORIADS = Worthy of respect in a democratic society

EJ: OD we have your submission and only had time to glance through. BC we have yours but not read. We will of course read in full in due course. Over to OD.

OD: Lack of time means my submission reads more like a speaking note.
I remind Panel of the mission of CGD ,CGDE.

Neither of the respondents missions are concerned with definition of a woman. Looking at an overview of the case, our case if MF was never and employee or an applicant under Gates grant

Not obliged to have mission undermined by individual behaviour that are contradictory to policy on inclusion etc

Even where manifestation of protected belief. Even if Tribunal needs to carefully read Eq Act and HR act. Under articles 9 & 10 an interference with manifestation of belief can be justified

Even if you find MF behaviour could not be split from belief you need to follow Lee & Ashers. ITs compelled speech to associate with employee in this situation.

Individuals who do not hold GC belief have their HR rights infringed (effectively)

The approach taken to limit MF expression was perfectly reasonable but MF didn't follow guidance. MA took a measured and balanced approach to the issue

There was a rep risk from being associated with MF. Risk of compelled speech on employees

MF final plea where she wanted VF renewed, she said she had decided not to tweet very much ie she wasn't going to stop

She only said she would use personal pronouns in most not all social situations. MA concern on risks was reasonable. MA still offered a paid contract such that her income was not affected - measured and lawful approach

MA balanced MF rights and those of other e'ees. Now on employment status... MF argues that she is employed under a contract of a person to do work. She argues not being offered emplyed role on Gates

she was an applicant. [case references]. Case law and commentators agree that this is same test as limb B workers under Employ Rights Act. [Further case refs]

In this ref it states that difference between a worker and someone who is employed personally to work is a distinction w/o difference [ref Pimlico Plumbers]

Hope this is not controversial as I will build on this. So employed under a contract personally to do work and those who are self- employed see [ case ref] test. Does the person perform services under directions for money or do they provide independent services with no boss

Ive set out in my sub core aspects of test Panel needs to apply. MF must demonstrate there was a contract, that it required her to work personally and whether she was working for someone. Further case ref cited

Consider the period between end of 2nd contract and start of 3rd and 4th contracts. She had no paid contract for work and received no pay.

Need to consider mutuality of obligation. Need to show there is a contractual agreement. This is relevant re BC point as to whether there was an overarching umbrella contract during the whole time

Further case law cited. Other case law shows its legitimate to consider lack of obligation between contracts when looking at the nature during course of a contract

The same factors are need for deciding an employee in strict sense are same as whether someone is a worker in an extended sense but pass mark is lower.

Recall MF set up consultancy business in yr 2000. At all times she had her own website page offering her services. Her CV says she is an experienced researcher etc .. she has worked with NGOs etc etc.

So for 15yrs prior to this she had her own well established consultancy business. She accepts first contract was a genuine consultancy contract.

2nd contract. We can see MF has a large degree of input on concept for project. She drafted ToR that were appended to that contract. Collaborative with VR. During 2016 she had no pay and was meeting with funders.

Same activity she would do anyway to seek new work. No promise of deferred remuneration. BC will argue that work was put her way under contract 3 & 4 so she could continue to fund for tax work. We disagree. What she always does for new work

She was paid under 3 and 4 for work under those contracts. Back to 2nd contract. Note lack of obligation for MF to attend offices or lunches - I state this a red herring anyway. We all agree even employed staff

do not have to attend office, only lunches. MF was only encouraged to attend weekly lunch

When you look at interactions with MF and entity for 2nd contract, MF had large input in timetable, scoping and negotiating it. MF has large amount of autonomy.

Consider that contract carefully when you deliberate. She was not forced to accept standard , boiler plate terms except for terms like confidentiality. Freedom when it came to the work

The written agreement are significant in this case as they reflect how MF interacted with respondents in practice. MF was required to provide invoices for her work up to end of 2018

She made clear which entity she was billing. Reflected the written contract. She never received a salary or wage despite her attempts to argue this in evidence.

MF was responsible for her own tax and deductions. I will submit the break between 2nd and 3/4 contracts shows that there was no umbrella relationship

VR asked MF whether she wanted to continue to work on a proposal if more funding. Its clear that MF and VR had not agreed an ongoing relationship.

MF said interested but not if commuting daily. She tries to bridge period between contracts by showing she was late to finish work under 2nd contract. She billed final invoice dec 2017. She was not entitled to further work after that.

In Jan 2017 VR asked whether any luck on funding... nothing to show there was any obligation. And MF did not express this expectation to the respondents.

21 Feb 2018 MF says she will need funding some time soon. We know that Ford seed grant was not extended into 2018. Discussions about hiring MF as employee started.... They talk about pitching MF as 'wider than tax'

and this is key. I.e. her work to date was too narrow for an employee role. VR reported back to MF that MA wants you to broaden scope of you work before we revisit taking you on full-time.

MF later seeks to resurrect pre Feb 2018 discussions but clearly this is untenable as we can see what everyone thought at Feb 2018. MA and OB stated that in any event a commitment will be limited in time and scope.

By this time MA knew that VR and OB wanted to employ MF. Therefore, he is making a broad statement about any commitment to Maya.

3rd contract. March 2018. Boiler plate terms are nearly identical to 2nd contract. It was for a one-off paper and for a different entity (this one for the London entity). Plainly a consultant contract.

4th contract. I put to MF that she could have rejected this work at that time. MF said she couldn't as had already said she was interested. She had autonomy to reject overall.

Discussion about lump sum vs day rate - all proposed to MF to comment on. Again MF has lots of input. Consider also the terms of this contract identical to 3rd contract in terms of boiler plate wording.

So MF not in a position of subordination at any stage. MF continues to invoice (sometimes as little as 4 days a month). She also works for other clients eg in 2018 the B team(?)

MF was continuing to operate as a consultant. Now MP and MF are in discussion later in 2018. MP says if 50% funding we can discuss employment. Clear that employment to consider employment depends on funding.

Its clear that discussion never got beyond this. We know now that when MP had spoken to MA about MF, MA reiterated what he said to VR and OB in March 2018.

Relevant to show there was not a role available as funding not secured. She also needed to expand her work but never got to that stage

The need for a post grad qual - only ever one other person w/o this to be appointed to research staff

MF was at no time in a position that would undermine written contract. It operated in practice like the contract. There was no umbrella contract. Its clear by the gap between 2nd and 3rd contract where comms show no expectation of work to be offered or accepted.

MF's argument that respondents are one and the same is misplaced in law. I won't go into but its in my written submission. the London entity was not a 'brass plaque' or 'PO Box'.

The programme structure didn't happen until MP came to start to implement in Dec 2018. Operations were not coordinated between the entities. Integration started much later.

Given no umbrella, the tribunal should focus on relationship under 4th contract. MF was at no time in a subordinate position and was not employed personally to work.

Neither was she an applicant to work. MA explained that she would need a few more years to be a credible candidate to support an employed role. Finally MP didn't decide not to offer work in dec 2018. He was simply correcting his own misunderstanding about how far along MF was

Moving on to substative claims. There is a point of difference between me and BC on the comparator. The comparator is someone who does not share GC beliefs but who produces the same tweets and internal comms and behaviours

EJ: Thats a bit impractical but that's quoted [in case ref - page] dint it?
OD: it is. Refers to more case law and Lee and Ashers. Discussion around indissociability.

I submit this is not a case where MF can say her behaviour was indissociable from the belief. MF cannot say the compulsion to go on twitter, bring in the pamphlet to work are indissociable from holding GC beliefs.

Eg case law around a Pacifist distributing leafleting. So I ask you whether campaigning about changes to GRA is nothing other than a proxy for holding the belief. Same for calling someone a man in a dress. OR describing those who dont hold GC beliefs as having a delusion.

See Page case law. Sir, I say this is similar to Page in this regard. If you find her behaviour was indissociable you would still need to read down [ ref] eg what the situation would be if the request to ice a cake in support of gay marriage would be indissociable.

if it were, the freedom not to be obliged to manifest a belief is also protected. The right to remain silent. Further case law. Lady Hale found in Lee and Ashers that being required to promote a campaign is separate to being associated with it.

The associated is by the way. However, I submit the connection here is much more direct than seeing the logo on the cake box in Ashers.

Her connection to the respondents online included the website , whenever she did an article, the website had her twitter handle etc. Her followers were from the development community

Many were prominent leaders with combined audiences of 160 to 180k followers. The risk in this case in the association if VF renewed is much greater than the bakers in Lee and Ashers.

If you were to find the message were indissociable then you can read down this is compatible with convention rights. You then need to weigh up interferences

On MF convention rights eg non-renewal of VF waived must be balanced against those on the other side. Corporate and employees have their own Art 9 rights.

Was the unwanted conduct related to the protected belief. She refs in my submission for other cases. When is something a manifestation?

If you find that decisions were taken because of a manifestation then Art 9,2 is where you can justify interference. Either way you need to consider this and consider mechanism in Lee and Ashers - risk of compelled speech if MF is retained as a VF or employed.

If you find conduct was related to a protected belief then Ive set out the relevant case law and the matters to consider in my submission.
EJ: Lets have a 15 minute break now.

OD: the culture of the respondent. Employers are entitled to set culture, I submit MF should have known concept of GI was recognised + respect and inclusion for trans rights.

She was part of discussion where break-out groups by GI not sex. MF said culture in London allowed range of discussion. But please consider some in London eg Ian Mitchell thought it was appropriate MF should apologise for language.

Arthur Baker also criticises her. Complainant 3 was based in London and did complain. MP felt she did need to be held to task for denying feelings. So suggestion that London office was a Wild West should be reconsidered.

Going to her comms. Tweet re Pips Bunce and manels. MF knew PB described as gender fluid. Yet part-time cross dresser is used.

Dismissive to describe someone who is NB and gender fluid in this way. GI is internal, clothes are just expression as PB said in article.

Other tweets. Saying mans feeling he is a woman has no basis in material reality. Rachel Dolezal tweet. AB says I dont see why you have to refuse to acknowledge in normal life. MF goes to assault, and gets dramatic

We see MF mocks those who dont hold a GC belief. E.g. 'Colour me surprised that some believe male people can be woman and old hat to need a word for woman.' etc she is dismissive of those who dont share her belief. say they are 'tying themselves in knots'

She also posted the campaign video and the pamphlet. Specifically bringing the pamphlet into office is extending the campaign into workplace. No evidence anyone else bought in campaigning literature. Witnesses agreed with this.

Infers risk to safety of other with self ID. This is truly propaganda and completely inappropriate to commend to colleagues.

Describes PB as 'man in heels; talks to AB about 'literal delusion' in Slack. She talks about David Challenor a cis male who is convicted for pedophilia and torture of child. She accepted he was not trans but a cross-dresser

There was moral panic here linking trans to infiltration of Green Party. Reflect on the way LE, AG and MA approached the matter. BC said it wasn't until HS said they were dinos that they then thought phobic.

But some of complainants 1 to 4 had already complained so this argument doesn't work. MF is then emailed and told not to use exclusionary statements etc. It wasn't knee-jerk. So not direct discrimination

LE emphasises distinction between how staff engage with each other vs views. Got to consider others. Even towards the end there were genuine attempts to handle a divisive and destructive situation they were in

LE draft policy around not wanting e'ees to speak for the org. See Lee and Ashers and compelled speech. Says they were not intending to limit right to free speech.

People are not calling her a bigot or phobic. MF reply to LE email caused concern. She says she will continue to say TW are male and makes no apology. She didn't clarify within the tweet stream that her own views.

MF likens GD to anorexia an illness to be cured. Not the case for trans or having GD. They manifest GI to align more closely with how they identify - dont treat as an illness.

Now no to blogs. A risk here if she is a VF and writing blogs. MF must have known her reply was combative. She forwards to OB and says sorry no instinct for self preservation. She also forwards it to others. She doesn't care if any of them are offended.

She is very combative and non-conciliatory. We know management were divided about how to manage risks. Note OB did not share GC belief - MP and OB disagreed.

When they got blog post OB says no intention of discouraging you but recognises sensitivity. He tries to tweak language. MF says no, need to be clear when male. Typical of her style when talking about TW and SS spaces

Various ppl said blog post needed to be more relevant to CGE activity. After LE email, MF carried on tweeting eg FPFW video. MP got complaints. He told MF.

Argument that if more ppl get GRC then sex crime will go up. Linking partner being murdered by partners with GRCs - tenuous. The stats are used to unnerve the observer. Not true to say 'end of SS spaces'

Now on to Comic Relief tweets. MF knew this was about celebrating women and included a TW. However, MF talks about individuals who identify as a 6 yr old. Clearly mocking.

Seeking advice from Ruth Szabo and QI was totally reasonable. Consider MF reply. 'I dont think QI report is useful and I do not accept.'

This report talked about tolerance and respect in the workplace and other laudable suggestions. Yet MF criticises.

MF final plea says she will tweet less but that she will still do it. And only preferred pronouns in most not all social situations.

MF says in one email 'bonkers that economist types accept this with a straight face' again mocking others beliefs

MA talked about not having consensus in the December SPG . But by February he felt risks too great whether or not consensus. This shows his own decision.

MA reasons are in his statement. With MF he didn't go into things such as MF costing money or taking up a lot of management time however this was no doubt on his mind

Its clear the respondent is concerned about reputation etc. On 28 Feb when MA narrated decision to MF with some of the reasons I submit she rejected Gates contract at or shortly after this. She spoke to a lawyer on same day.

Draft email to ombudsperson we can see MF setting out a broader account than what she provided to MA. She alleges discrimination due to not renewing VF.

4th March she emailed Vishal at Gates and was seeking to poach that work at a new institution. Can she plausibly assert that thereafter she might have gone back and accepted that contract?? Its untenable and impacts on her credibility.

Even if MF perceived MA email as withdrawal of contract... EJ: Not quite following. OD: From comms its clear there is no mention of contract withdrawn. EJ: BC may say that the thanking sounded as though relationship at an end. Are you saying no act of withdrawing the contract?

OD: MF may have perceived it that way but wasn't. EJ: If employer gives impression of withdrawal is that not a detriment? OD: there was no withdrawal. we can see from internal comms that SPG were talking about drafting a contract

I do submit sir that this is not a case about the belief but the expression. Then we are in Art 9, 2 territory and other case refs such as Lee and Ashers.

The offer of the Gates contract (21 Nov comm). I argue this wasn't a withdrawal of the offer but a correction that it would be expected further along in time. This is not connected to the later matters.

MF would have to persuade tribunal to extend time. The onus is on her to this. She knew of right to bring claim when she responded to QI report and cites a legal claim about protected beliefs. We know she got legal advice on 28 Feb and formed view she had a good case.

Ive set out some stats for indirect sex discrimation claim, the assertion that more women hold GC beliefs. I have shown the opposite in my submission

Removal from the website. You should consider various other protected acts that happened and she remained on the website. Only deleted after Sunday Times article. LE explained due to negative press.

OD makes further arguments to show that victimisation claim should fail on its facts. I would like to save time for a right of reply.

EJ: OK there are 50 minutes left that you have. Thank you OD. BC we have not read your submission. How long do you think you will be? BC: Around 2 hours.

EJ: Ok lets close for today. We can read your statement and return at 10am tomorrow.

@threadreaderapp please unroll