Thread by @tribunaltweets

We are reporting today on Lisa Keogh's case against Abertay University for breach of the Equality Act.

Lisa was a final year law student investigated by the University for gender critical comments during class including a seminar on ‘Gender, Feminism and the Law’.

#OpenJustice

The debate today at Dundee Sheriff Court is a hearing to determine a preliminary plea in this civil matter.

Sheriff Murray will consider a motion for Abertay University's preliminary pleas to be repelled (dismissed) in Lisa Keogh’s case for discrimination.

A debate only takes place where there is no need for evidence heard before the court can make a decision on the plea. There will be no witnesses today.

We have Sheriff Murray's permission to report the debate

Abbreviations:

LK - Pursuer/claimant - Lisa Keogh
AU - Respondent/defender - Abertay University
EA - The Equality Act 2010
PSED - Public Sector Equality Duty
GC - gender critical

EHRC - Equality and Human Rights Commission
SDP - Student Disciplinary Panel
SDB Student Disciplinary Board

SC - Simon Crabb, Counsel for Lisa Keogh
CO - Christine O’Neill QC - Counsel for Abertay University

[missed start of CO's submission decsribiing the investigation process]

CO - it is clear that the Pursuer is asking the court to find a court that there has been a filing in regard to s149 EA. This court does not have jurisdiction to determine a claim on s149.

s156 also precludes finding in a private action. Parliament intended PSED would be dealt with in what would be called in England, public law

CO - refers to a case relied on by the Pursuer that applied for judicial review. It was not a private action, not in the county court (equivalent to Sheriffs' Court).

Pursuer (P) was entitled to other avenues - eg a pursuing a judicial review.

CO - pleadings with regard to PSED are irrelevant and shd go no further.

Even if wrong, and Sheriff [S] decides it can be considered, the P would have to make positive averments in what respect their has been a failure.

The obligation is to have due regard to a number of factors. P has not said which are subjcet to failure.

CO - on Direct Discrimination - P's principal position, is that the Defender [D] was due to direct discrimination.

CO - the complaint received by AU.

S - complaint from one student purporting to be on behalf of others?

CO - Yes

CO - the complaint refers to inappropriate contributions in module , extreme sexism and transphobia and racism, and AU's obligation under the EA, with references concerning what was said by teh P and how it was communicated.

CO - the appended compliants from students refer to P shouting over other students and staff, interrupting the lecturer and making it difficult for others to contribute.

CO - Complaint concerns a range of matters including complaint of racism and sexism. the P's conduct in class and pother discussions. It was not upheld.

CO - the complaint does not contain any material in the complaint that allows AU to determine the nature of the P's belief, criteria set out (which a similar to the Grainger criteria].
P's position is AU shd have taken no further action.

S - so it could have created an entirely separate complaint by the complainers [if not investigated]?

CO - yes. Q for yr lordship, is having had a complaint, did investigation cause direct discrimination? Reference EA s91

CO - s91 (2) must not discriminate a student 9f) by subjceting the student to any bother detriment.

Discrimination in definition in EA s 13 - - if because of a protected characteristic is treated less favourably that another person would be treated.
ref Deer vs Oxford Univ

CO - Deer - must establish both less favourable treatment AND a detriment.

AU's case following the process is not unfavourable treatment. It couldn't know anything abt P's belief. [missed].

CO - Detriment must be determined objectively. The distress must be objectively reasonable.
Derbyshire case quoted "merely by showing mental distress. It would have to be objectively reasonable in all circumstances.... carries inevitable stress and worry "
[missed]

CO - Case - quoted Lady Hale re HoL judgment that held an employer put inappropriate pressure. 3 relevant questions... did employer discriminate? First question focuses on the effect - is it a detriment? that a reasonable person would consider a detriment? ref Samoon.

CO - Lady Hale said ordinary attempts to resolve a situation do no harm.

By analogy here, AU has not subjected the P to detrimnent simply by following the process in teh Code of Conduct. P identifies the following of the process - not unreasonably or [missed]

CO - Bailey also makes clear the subjective perception of claimant is not the standard. Ms Bailey identified 5 detriments. 2 of the 5 were established. The disciplinary process was found to be adverse to Ms B.

S - case subject to a great deal of publicity recently?

CO - Yes. Ms B was, I don't like to use the words - found guilty by her Chamber. [missed]. What's interesting is that despite the range of detriments, she did not make the case that the investigation was a detriment.

CO - P avers that other students were not investigated. AU says complaint against P was investigated because there was a complaint. there were no complaints against other students.

CO - Authorised Investigator sent email to P at 9.28 am 23 April - helpful meeting. I note from our discussion that you do not wish to submit a compliant at this time [and explains how].

LK - I have too much on with coursework and exams but may complain later.

CO - Material difference - there was a complaint against the P. In the absence of a formal complaint it wld not have been [missed] to pursue a complaint against other students.
Ref case - Samoon.

CO - Samoon - Complaints made by 2 PCs about conduct of appraisals by female Police CI . Her claim for sex discrimination was the applicant's circumstamnces were different from 2 other CIs as complaint had been made against her.

S - so roughly analogous.

CO - P doesn't aver that if she'd complained the complaint wouldn't have been pursued.

No relevant averments (statements of claim) discriminations on protected beliefs.

CO - An estow case, direct discrimination fo SDP to refer case to SDB. No relevant averments in support of their propositions.

CO - Actual reasons referred were dealt with in 19 May letter, there were inconsistencies in accounts, and listening to class recording was required to hear time and content, and LK shd be given opportunity to put forward her case.

CO - in my submission, SC's pleas relate to why the complaint shd not be upheld. It was not upheld.

I am conscious we are in debate territory. I want to make one reference to material the SDP had - part of the paper work.

S can't find reference. CO apologises for tendency to go too fast.

CO - describes references that the lecturer had been upset and tried to put a structure around discussions in class.

CO - In meeting, the Authorised Investigator (AI) read out the other allegations - the last one it is reported whilst some discussion of rape and assault, it was reported P said it was a woman's fault and that women had to accept responsibility for being attacked [missed].

CO - The lecturer said this was her recollection.
Completes case on direct discrimination.

CO -On indirect discrimination - P's case lacking averment [description of circumstances].

CO quotes from s19(2) law [too fast] - all 4 points must be proved McCulloch v ICI and and para 321 Bailey.

S so would need factual averments [on those 4]

CO - not enough to appeal to the circumstances.
In case of Bailey, claims of indirect discrimination of two PCPs - chambers' practice of treating her beliefs as biogoted and allowing Stonewall to direct complaints process. Both rejected by ET.

CO - nothing in pleadings on PCPs - so yr Lordship can do nothing with them.

CO - nothing in Note of argument on Convention Rght claims. They are irrelevant.

No matters of fact in dispute.

In my submission, yr Lordship is entitled to deal with the matter.

[Your reporter lost her tweets covering start of SC's case]

SC - [had started by noting that there may be no evidence of prejudice when a public body or individuals does have prejudice. missed]

SC- In respect of case of Coll, differentiation that that was a Judicial Review, it is the EA that is relied on, not the forum in which the action is taken.

SC The D is saying there is a lack of specification on indirect discrimination, and also strike out PSED - riding 2 horses at one time.

S clarifies. [The PSED is relevant to both the direct and indirect discrimination.] Aplogised for derailing SC.

SC - Shamoon para 105 - A detriment exists if a reasonable worker experienced a detriment from the point of view of the victim.

[Pause while S and SC checks reference ]

SC - reasonable to consider situation of the P - last year of law degree, expressing view in a course on law and feminism, and is siubjceted to a process - this is a detriment.

SC - the next issue - an approach is not just to lookj for comparator - but also look at the reason why the public body behaved in the way that was averred.

Forstater - not necessary to construct a hypothetical comparator - look at the reasons.

SC - It's enough that the belief was a substantial reason - Nagarajan v LT.

SC - The reference to Transphobic comments is enough. In the initial complaint, which is made against a woman in a module against law feminism - it wasn't out of the blue, in [context of heated debate on GRA]

S - so you can take more form the complaint than at first sight. Not just the 4 walls of the complaint.

SC - The authorities (Bailey, Forstaters) could have been struck out a preliminary stage. Everything depends on the circumstances.

SC - Lack of a complaint by P - has no relevance today. There was still evidence that the P said she'd been a victim,subjected to vile comments, and AU proceeded. This may well demonstrate an unconscious [reason] for the treatment.

SC - ref JFR Governing Body case. It can be an unconscious reason.

S - So you are saying the various averments are supporting your points.

SC - Direct discrimination - facts in Islington case [CO quoted] were substantially different - an equal pay claim.

S - so you are saying I shd {distinguish? extingish?] it entirely?

SC - yes.

Pleadings deal principally with legitimate [missed] raised in Ruke 22 note by [CP]

S - you say pleading doesn't require refer to law, just the facts the P needs to prove, not the law. Is that your case on each point?

SC - yes. For example on indirect discrimination, it's clear the disciplinary process put her [due to her beliefs] at disadvantage compred to other.

Sc - The D says PSED can't apply. In my submission that [PSED] is sufficent in law.

[?} wasn't referred to in rule 22 so I haven't addressed.

S - [missed] Is your position that she shdn't make any points on EHRC [because it's not in the Rule 22 note]?

SC - in both Bailey and Forstater Arts 9 & 10 are both considered as inherent on protected belifes, and rely on proportionality. D has not acted proportionally, in line with PSED.

Sc - European Court HR Grand Chamber - Folgero vs Norway 2007 para 98 - interrelationship between Art 8 & 9 - beliefs are most intimate aspects of private life

S - CO, do you accept yr Rule 22 note does not foreshadow the convention rights?

CO- yes

S - penalty is usually cost is any.

CO - convention rights - not new or unusual. Its the lack of specification. No pleadings at all.

I don't understand from pleadings what the the Art 8, 9, 10 or 14 breaches would be. That could be dealt with by a continued debate.

CO - [SC] said is a case about beliefs, not manifested.

It was not possible on receipt of complaint for AU [missed].

CO - - whether any complaint against the P could be upheld. It was not upheld. SDB conculded P had not inetntionally shouted in class, and had been reminded that others found her comments helpful did not repeat them and insufficient evidmnce to prove the complaint.

CO - P says it was wrong of AU to invetsigate. In Forstater, ET expressly noted protected beliefs did not protect abusive [mainfestation].

In PSED, [SC] is asking for a finding of law but is asking for a declarator by finding AU has breached PSED. He is not entitled to do so.

CO- the argument of [unconscious bias] is unfair and unfounded. The process by which P could make a complaint was explained. It would be unfair to attribute to the university [discrimination as no complaints against the other students].

S - So you are saying - no question of unconscious bias as the email shows advice given to P.

CO - the absence of a process re other students is not evidence. P [implied she might take it up later].

SC - All issues dealt with by my introductory statement

[Your reporter apologises again for loss of reporting of his 4 points]

S - I will issue a written decision at a later date setting out the arguments - 8 -10 weeks. Debate closed.