Thread by @tribunaltweets

Hello and welcome to day 5 of Denise Fahmy's employment tribunal against Arts Council England (ACE), with counsels' closing submissions starting at 10.30am.

Catch up with yesterday & all other live tweeting sessions at our substack. tribunaltweets.substack.com/p/denise-fahmy…

As permission for remote access was refused, the Tribunal tweets reporters are attending this hearing in person.

It's a beautiful sunny day here.

Abbreviations:
EJ or J: Employment Judge Shepherd
DF or C : Denise Fahmy, claimant
AC or R: Arts Council England, respondent
AP: Anya Palmer, barrister for DF
AM: Aileen McColgan KC, barrister for AC

LGBA - Lesbian and gay charity, LGB Alliance
LCF - London Community Fund, a branch of ACE
WPUK - Women's Place UK
NL - National Lottery
DCM - Department for Culture Media and Sport
LCJ - Let’s Create Jubilee Fund
KB - LGB Alliance’s chief executive, Kate Barker

NS - ACE chairman, Sir Nick Serota
MD - Culture Secretary Michelle Donelan
IM - Ian Matthews, HR Director at AC
SM - Simon Mellor, Deputy Chief Exec of AC
F - Forstater v CGD
M - Miller v College of Policing

We are in the waiting room.

The Judge and tribunal panel members are reading submissions until 11.30am.

AM: Submissions. Where a complaint is made abt harrassment by ommission, only amounts to harrassment if it relates to the protected characteristic PC.

AM: Objective nature of harrassment, partyially objective. Test - threshold is low if effect of creating an offensive environment - but clear from case law a degree of robustness is required. intent of the conduct relevant.

AM: Mainfestly not case that individuals entitled to workplace where people don't express views. Freedom of expression - #Forstater Art 10 protections. That is also true of beliefs to conrary - very strong gender credent views are protected.

AM: Expression of one side may be hugely offensive to the other side. GC views maybe upsetting to trans but doesn't fall in conduct prohibited. [Ref Sunday Times case] Freddom of Expression is one of the essential freedoms of our society [continues quoting - shocks or offends].

AM: for protection of rights of others, permissible to impose restrictions when impacts freedom of other - a high test s26

AM: Cross exam of IM and PR - [missed] Employers views abt what is unacceptable and tantamount to harrassment [missed] C concern that if they'd upheld her claim in full, it would be a s26 breach.

No possible question that Teans chat reached S26 threshold.

AM: some of comments in oetition string eough for discipline - but petition comments didn't reach S26 threshold - didn't name the C, not targetted abt matters which are contentious and difficult.

AM: take that into account. No critcism of C. S26 doesn't require the C to be named - but this must be talken into account.

AM: Victimisation - s97 of submissions. It's suggested that emplyer has duty of neutrality of non discrimination re gender credent and gender critical. Incorrect, No duty of neutrality.

AM: Duty not to undertake conduct which breaches Part 5 of the Equality Act (EA) eg by harrasment in conetxt of employment. Must not breach EA. ACE not obliged to be neutral.

AM: 1st victimisation claim reqs trib to find that the CEO acted so as to punish her for April letter.

No conceivable basis - R responded appropriately. Very fact petition was up for 26 hours in total, in absence of hostility etc to C's letter means C can't get home on that.

AM: Matters complained of werent connected to litigation and C's publicity seeking. So not necessary to go to that.

AM: [missed] remember IM cross examination was late - so submission point - email from R's solicitors [25?] April makes clear R was concerned abt C's social media activities, and that was connected to decision to suspend DF's systems access.

AM: A further letter of 27 April handed up. So evidence doesn't support this being invented post hoc.

AP agrees. Letter handed to panel.

AM: Employers' defence - Prior to matters complained of on 14 April, employer had no raeson to think action was needed to protect GC staff. Dignity at work policy was understoof to cover GC views.

AM: One of the factors Im talked abt - training on equality - set out in submissions. Nothiong specific that set out GC staff compared to disabled or ethinc minoritised staff. Big effort to get a neutral trainer.

AM: AP argued AC could have found a trainer before. What are reasonable steps before? No particular issue.

As to the assumption that refers to activity before [alleged] harrassment, s109(4) can also refer to after the event [sites EAT case Forbes]

AM: last para of Forbes - Trib was entitled to find reasonable defence - that employer treated the [alleged] harrasser's conduct seriously - company took reasonable steps after the alleged events - policies in action in practice.

AM: Employer is entitled to rely on the disciplinary actions after the events. Principle applies - appropriate to take disciplinary action or sanctions doesn't mean that in law the conduct reaches the threshold of conduct.

AM: [moving to C's submissions para 9] quotes - conflict is re GCand gender credent. i accept that - but also an issue abt how people who are trans or non-bunary - how they are impacted.

AM: The mere fact that thibgs are distressing doesn't amount to harrassment - but it needs some care.

AM: I stress this doesn't make GC veiws unlawful - but when considering the reactions of trans and NB individs that they may regard GC views as a really personal attack on their identity.

AM: when {Trans and NB individuals] they believe to be under attack that may go a long way to explaining [missed].

AM; AIW likens racism to GC commentary. "I can't imagine what my trans and NB colleagues are thinking right now. "
Reasonable to take into account people who are not just gender credent but also trans or NB.

AM: Quotes another ACE staffer abt ACE working with LGBTQIA+ people.
Refers to something AM doesn't read out as intrusive, AM says aspects pof PH's identity are openly dismissed. There is nothing political with the trans [missed] identities that LGBT Foundation has a problem with

AM: You need to have that very well in mind when dealing with the core claims.

AP: Adds authority - first instance so just an example re all reasonable steps defence.

R has to prove the conditions are met.

AP: ET case Sheffield Teaching Hospitals NHS Trust - R in that case was awre had a particular issue as had recriuited the C, a transgender person, so carried our bespoke training b4 C started work. An extreme case re very bad transphobic remarks, which R didn't deny.

AP: Trib found harrassment on the facts but accepted defence as training was in place.

Completely disagree that ACE didn't know it had a problem as gender critical belief protected in law in #Forstater appeal 10 months before.

AP: To rely on reasonable steps defence,C drew attention in [missed] & 15 Nov letter. I'm sure SM was watching that appeal. IM was clear that he understood any training given must be balanced - beyond me that R didn't know until things happened that they needed to deal with this.

AP: [missed - they had time to deal with suitable training] That's why I asked Im abt whether he'd considered devising inhouse training.

AM: If emp obliged by Fortstater to do training, then every other employer would have been obliged. It's not suggested every time an ET decision eg veganism - obliged to do training.

AP: If relying on all reasioanble steps, then a quite common belief - not all people who have Gc beliefs call it GC - anyone who believs sex [matters] . R knew it had LGBTQ staff pressing for training, anmd the C drawing attention to what was happening in the Arts.

AP: AM points out s10 EA protects beliefs that biological sex is not real and trumped by gender. She adds that GC beliefs causes harm to trans people.

AP: In Fortstater, C pled she believed sex is [missed immutable etc] - example of someone who belives gender is more important than sex and TWAW are also protected.

AP: ET Judge in prelim hearing decided it wasn't and was overruled by EAT. The opposing belief as fotrmulated by C, and not challenged by R. It didn't extend to idea that beliefs formulated as GC harms trans people. So going beyond beliefs in Forstater whould be contested.

AP: Logical fallacy that if someone doesn't accept a TW is a woman, it doesn't [challenge] existence. It's not saying you don't exists. It's untenable.

Then accusations of you hate me, you are a nazi.. We don't accept these beliefs are protected> It's a ludicrious extension.

AP: We can't agree that NB people can assert GC beliefs cause harm to trans people. [missed]

AP: Suggestion [by AM] the analogy between ACE and PSNI was inept. I thought I was asking about a large employer (and catholic and protestant).

Whether she was an activist is irrelevant.

AP: To the extent she was doing that was quietly to senior managers eg IM. None of those submissions make it acceptable for SM to descend into the arena as he did, with an unsubstantiated allegation - no evidence in the trib, in a staff meeting of 400.

AP: Inappropriate for any senior mgr to express their personl opinion, cleared with communications team - it sends a signal to staff in relation where the employer is under a duty not to discriminate.

AP: He thinks very damaging things which is then followed by remarks like we shd not be funding hatred.

SM said [reference found] staff question by someone - Director of LCJ every few days likes a LGBA tweet. seems the grant is being engineered.

AP: SM we consider this to be part of the diligence we want LCF to undertake - additional scrutiny. A Very serious allegation made on basis she holds GC views on basis of liking wteets, that she engineered grant.

AP: DF says - bit of a leading comment - we wouldn't normally check a grant manager's social media. DF's entitled to make that comment - it doesn't go to her credibility.

AP: clear comments sometiems liking GC tweets on twitter and suggestion that LGBA is not anti trans were enough to be singled out by anyone who holds that belief system. eg PH and SB - he admitted was abt the C. PR admitted AIW comments were abt DF.

AP: Extraordinary that even now ACE are arguing that she wasn't targetted. People knew. They'd been calling her. She'd been clear with PR and Im that they needed to be discrete.

AP: Comments made to her face were polite. teh indirect comments referring to people with GC view characterised as transphobic bigots, references to such people within the staff.

AP: Not polite to suggest that anyone who stands up for LGBA and says not a hate group is a transphobic bigot.

PH called for ACE to stamp out bigotry in staff - deleted on day two which likened

PH said Trans and NB staff don't feel safe in ACE. We would not give such support to racist views..... I have been incredibly distressed and continued approach to this is to shut down discussion (when DF complained abt this kind of vitriol in working environment).

AP: Dignity in work investigation was clearly inadequate - was not aware of [missed] targetting by PH, AIW comments were in response to C.

AP: C is now being accused of being disengenous - she said abt how could there be no personal responsibility [missed]. AM says C was fully aware there were individual disciplinary proceedings.

AP: not at all clear reference is only to the whistle blowing complaint. Unoffically told disciplinary proceedings - not who or what - until very recent disclosure.

So she is entitled to say that there was no personal responsibility in DIW process.

AP: DF's witness statement [para reference] is how she felt at the time when meeting PR.

Discussion of timing - P2 says continue.

AP: These are the egregious examples. i could do this with every paragraph (of AM's submission).

AM queries AP asking why PR ought to have been providing with the PH investigation report. Not clear it had been compiled.

AP: C said PR hadn't even asked why I thought I was targetted when he concluded I hadn't been.

AP: PR shd have investigated the DIW complaint properly - with any relevant evidence of disciplinary investogation inc PH's emails targetting the C, and the emails from line mgrs expressing concerns abt DF.

AP: PR's email on 20/7 - I am close to finishing my report - so he could have taken 13/7 disciplinary report into account.

No one ever says we accept you were harrassed. They say capable of harrasing, didn't target you personally and were taken down within 26 hours.

AP: while R compiled emails for staff to play nicely.

[missed sometghing on financials of claim] DF was not offered an appeal - so asks for anuplift.

AP: DF complains of harrassment whether or not targetted. Let me be clear - DF entitled to complain that targetting isn't necessary, that PR accepted, and to complain about his incorrect finding, a wrong conclusion which was hurtful to her.

AP : In making a remark about LGBA, NS was pandering to one side.
[too fast quote of AM's sub]
Cin Forstater was a policy worker - comments were almost exclusively external. she was not a senior manager.

AP: Senior manager in large employer, but in leadership role, unevidenced claims about a particular groups, with protected characteristics, he is not entitled.

AP: [missed] manifestations are not protected - emps can say we don't want personal views expressed in meetings. ACE was happy for SM to express personal views. Employers are free to regulate expression.

AP: Noone is saying needs an environment where people can't disagree - but this was highly politicised personal views. Final paras of Forstater - there may be defences - that applies to everyone including those who ID as trans and NB - raised forfirst time in closing submission.

AP: PH is still subject to the warnings of Jsutice Choudhury in Forstater - everyone is protected and everyone must adhere to a certain standard of behaviour. Here they went beyond, and C was harrased as a consequence.

AM: I do not suggest emps can't regulate speech. It prob shd have more words - abbreviated too much.

J - not my usual practice to reserve judgment. Deliberations will start after lunch.
Discussion on timing, the delights of another night in Leeds & counsel returning to London.

J - I will send word at 4pm if judgment will be handed down tomorrow.

The hearing is now complete. The timing of judgment depends on time taken to deliberate, and then time to write the judgment. We wait for more info at 4pm.

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