Thread by @tribunaltweets

Good morning, it's Tuesday morning and we expect Professor Jo Phoenix vs the Open University to resume at 10am.
JP - Prof Jo Phoenix
BC - Ben Cooper Counsel for JP
JM - Jane Mulcahy OU Counsel
J - Employment Judge Young
P - Panel member
IF - Prof Ian Fribbance witness for OU

Hearing is resuming. JM wants to make sure J has managed to access Substack and the Savage Minds podcast

BC to IF: We have been looking in the bundle at your email where you talked about a cultural tendency to have a range of views on certain issues.
IF: yes
BC: Want to look at the range of views on sex and gender

IF and BC checking bundle
BC: This is the notes that JP had prepared for seminar that she never got to give in Essex. You'll see her description of what happens to people who speak out with GC views in academia

BC: quotes JP 'few of us want the sort of treatment that is meted out .. everyone wants to be on the side of the angels" do you agree there is a force of censure in the response and no one wants transphobic label

IF: In some sense yes. I don't think the overwhelming majority of people have strong view on this
BC: do you think people with GC views get labelled as transphobic and seek to apply a force of censure
IF : if I've ever seen it it's very rare that I've seen it in

IF : any formal OU communications, it's more on twitter
BC: Do you agree that if there is a sufficient force of censure then what the claimant describes as inevitable consequence ie fewer ppl want to speak out is that ppl will be frightened and won't want to speak out

IF: To an extent but freedom of speech works both ways (paraphrase)
BC: that is at heart of JP case
Goes to another part of bundle

BC: This is an email 23 June after launch of the GCRN, it's just before the second OU public statement. Email to VC just after your working group has been formed. So presumably your working group was coordinating responses and the VC would pass this to you?

IF: I really have no idea if this one was passed on
BC: you have said the VC has final say. Look at this one 'I am concerned with fierce hostility directed at a this initiative risks shutting down women's voices.. I know many other women share my concerns but very few of us

BC Risk saying so at the moment.' this is a climate you were well aware of?
IF Yes I would say so
BC if that climate reaches a point where ppl are afraid of speaking out and joining a network that will inhibit freedom of speech
IF Except that VC spoke out to support FoS and

Supported the GCRN
BC I'm not looking at formal pronouncements. If kppl with GC beliefs are being repeatedly labelled transphobes, and a large number of academics are saying they shouldn't be allowed to organise research through an organised group that would have this effect?

IF Possibly yes
BC so lets look at OU duty. Do you agree that means university should foster environment conducive to FS
IF: yes we looked at setting up an interaction or seminar of people with opposing views
BC so you should be doing something proactive to ensure

BC no one feels inhibited
IF yes and first step of that was VC statement asserting OU commitment to ac freedom and continuing existence of GCRN
BC do you agree it also encompasses tackling statements interventions and actions which objectively are not attempts to engage

BC in debate but are attempts to shut down debate
IF what do you mean
BC that you have to take measures to stop actions which cross the line from respectful debate to polarising attacks
IF that's a simple way of putting it. The first step was the VC statement. The GCRN did

IF continue so clearly not affected in that way. How could we do that - disciplinary action?
BC by saying that consequences would be taken poss including disc action
IF well the VC statement did say ou was committed to ac freedom and the OU has remained the only uni

IF where there is such a network
BC we will come onto whether VC statement was sufficient - currently establishing what rules ought to be
- your answer is a yes to whether unis should take proactive steps to ensure no line crossing from respectful debate to polarising attacks

IF : yes and the VC statement was a first step to that

BC: we are still establishing general principles. go back in time to early articulation of these points by John Woolf
IF he was associate dean for research in the faculty

BC : this is where there is consideration being given to what to do with relationship to Centre for Crime and justice studies [the Richard Garside op] it's minutes of a meeting of the HeRC which had been sent to you

BC says important sent to you as EDI and LGBT head
'we expect to maintain our relationship in which there can be robust debate and disagreement but not polarised positions..they may not like this but we have to take a stand' - so the line that Jon Woolf is saying there

BC on respectful debate but not polarised dismissal of differing positions - do you agree with that
IF yes broadly
BC academic freedom is not protected by attacks within it on academic freedom
IF broadly true with caveat that there is no easy and written down code book on this

IF We are all trying to navigate an extremely complex and sensitive area so yes I agree with Jon on that - on the other hand - does academic freedom permit attacks on academic freedom - what does that mean in practice? ie

IF if someone criticises FoS of GC people is that an attack on academic freedom?
BC do we agree context is all
IF yes
BC JP repeatedly says to you after it all blows up that 'protest and argument is one thing' it is not part of JP case that it is impermissible in all circs..

BC for someone to argue that expressing GC views harms trans lives or is transphobic. You can argue it as a proper argument OR as an attempt to shut down voices. Do you agree context is important

IF yes agree this is all very contextual
BC *back to bundle* p1541 these are part of senate minutes from 23 June 2021 . Par 3.7 one of the points made in the senate 'members echoed need to robustly defend Ac Freedom from both perspectives as well as issuing clear guidance for

BC ..debates to take place' and that's echoed in p 3547 Vol 8 this is a collation of OU public statements first one 18 June, this one 24 June, that statement from the minutes is echoed in this public statement. But says needs to be governed by clear rules. Did OU ever

BC ..issue clear rules on this?
IF : It's covered by OU rules on academic freedom
more looking through bundles

IF bundles haven't printed properly
*He now has it and is looking through*
BC: email of July 5 2021 - attaching a line manager briefing - within that is reproduced the statement on academic freedom. 'by being places of debate unis are one of the most important pillars of civil

BC: ..society where views can be listened to and challenged - you agree
IF yes
BC and that people should be able to bring forward even difficult ideas, listened to and not shut down and challenged. You agree with all that?
IF yes
BC we will look at some abstract

BC principles and you said you were navigating principles in a difficult and complex area. So when you said there were clear rules I was taking you to clear examples from this debate - that's what the senate and VC were addressing. Do you think there were clear rules that

BC the university set out as to what people on each side of this debate should and shouldn't be doing to behave appropriately
IF uni has principles on ac freedom I don't think it's reasonable for uni to have separate sets of rules for different areas of contention. that's the

IF job of senior management to deal with as an when they arise
BC let's take the first
IF you can take it I agree with whole statement
BC but this is about relevant specifics
- the important one here is freedom within law to express controversial and unpopular points of view

BC second one - that we have responsibilities towards each other toward diversity
- agree with both ?
IF yes
IF obiovously people who take a non GC view think that GC views are not treating diversity with respect - you have to apply on a case by case basis

BC: I'm asking you - gender C views are not opposed to diversity - do you agree?
IF - I agree but clearly some people do not
BC - even if you disagree, your responsibility is to value that difference of opinion, not to try and shut it down, do you agree
IF - yes but contention

IF arises because people on opposite end of spectrum see their diversity as not being recognised
BC - it's one thing to express view that GC views don't value diversity but do you agree it's part of your responsibility to NOT try and shut down debate, you are required to value

BC diversity. the university is required to value the diversity of belief and not engage in conduct that is contrary to that responsibility - you agree?
IF you added that last bit
BC I'm exploring the implications on how far we agree
IF yes responsibility on all memebers

IF academic community to foster diversity
BC so anything that doesn't is counter to this policy
IF yes everyone should treat each other with respect
BC so if somebody does something which does not respect the right of others to hold different beliefs and attempts to shut

BC down debate that would be contrary to this policy you agree?
IF yes and it would be down to senior managers to deal with
BC so a call to discriminate against somebody would be against the policy
IF yes but the ppl taking that view clearly view that the view doesn't comply

IF with the bullet points either
BC yes but sticking with principles - you have to look precisely at the context of what they're saying
if one side is expressing legitimate academic perspective which the other side thinks is harmful then that's going to be permissible?

IF yes
BC even if the other side thinks it's not permissible? the fact that you have ppl who think it's impermissible doesn't make it impermissible
IF no I don't think so
BC if the pppl on the other side aren't simply saying that argument is wrong but are calling for

BC uni to shut it down and discriminate then that is contrary to policy?
IF both sides take the same position ie that the other side denies their identity so each side is perceiving the other in the same way
BC that's not right. those on GI side of debate think

BC GC views are harmful. But GC ppl don't see GI views as discriminatory against them
IF agrees with both
BC what GC people think is discriminatory is when GI ppl call for debate to be shut down. There's no equivalence is there?
IF it's more complicated than that

IF some ppl think that researching GC views does threaten their rights. Not saying I agree but I do see an equivalence. It's for senior managers to take a view and navigate on how different views play out.
BC So what would not be permitted under rules like 'communicate in

Bc respectful accurate and timely' so disrespectful and inaccurate communication would be in breach - you agree?
IF yes
BC 'if views cause offence , it's not sufficient reason those views shouldn't be heard. argument should be based on facts and evidence and be made in

BC appropriate fora - agree?
IF yes it applies to both sides though
BC so inaccurate and disrespectful expression - that's not within the policy - or not within the right fora - that's not allowed either?
IF AGree
BC and the uni has to be proactive?
IF yes

BC put to you that it's not in accordance with this policy to call for measures that would restrict academic freedom
IF agree
BC looking at bundles again

BC OU Policy: basic rule for social media use is that everything that applies to OU comms re: conduct also applies to social media
IF yes
BC social media policy repeats academic principles 'this means that we will be academically rigorous..every reasonable effort to minimise..

BC..risk of harm - that applies to social media yes?
IF yes
BC 'we will not present or challenge views in a way that's hostile or degrading' that's important isn't it
IF yes
BC so hostile and degrading language against the rules
IF yes

BC: conduct leading to shutting down of other views is not within this policy
IF - yes
BC - references bullying and harassment policy
there are some egs of unacceptable behaviour listed here

BC - do you agree that not discriminating against somebody includes calling for someone to be discriminated against
IF - I don't know the legal position
BC - I'm talking about policy . gives example of calling for discrimination against Jewish ppl or gay ppl
IF - very likely

IF - ..that this would be over the line
BC - another eg of calling for discrimination against muslims. that would be over the line?
IF likely yes
BC - also not permitted - insults, name-calling based on personal attributes - do you agree personal attributes include beliefs?

IF - yes
BC - also not permitted - offensive letters that include ridicule, threats, namecalling - do you agree?
IF yes
BC - so a letter says 'unless someone is not allowed to express their beliefs or benefiting from Uni facilities, we will do x y z which is detrimental,

BC: ..that is a threat isn't it?
IF : yes it sounds like it
BC : also not permitted - persistent ignoring, isolation at work, exclusion - you agree?
IF yes
BC also says managers have a responsibility to act if they see bullying and harassment - you don't have to wait until

BC there is a complaint. If the behaviour is observed, managers and senior managers should be intervening. You agree?
IF Yes
looking at bundles again

BC: references training powerpoint for social media team. This seems to indicate where the uni thinks the line might be drawn on social media in relation to these issues. Intimidating, aggressive behaviour, trolling and pile-ons - do you agree it would apply more broadly

BC than social media ie if you're engaging in activity that would involve gathering people to make a criticism in an aggressive way - do you agree crosses the line
IF you're extrapolating. Not sure that's correct.
BC quotes from policy 'inciting hostile action' - if there are

BC hostile action - that would cross the line?
IF - yes
BC - do we agree that the fact that something is an open letter or petition doesn't get them off the hook, it's whether it's a part of a pattern of harassing behaviour
IF - yes agree
BC - if someone is sending round

BC material that is harassing or bullying - that may cross the line as well
IF yes
BC Given where you keep referring to an equivalence of feelings on either side - quotes from policy re lawful and unlawful expression

BC do we agree that just because something is lawful, it doesn't mean it's not harassment eg it's legitimate to express view that GC views harm ppl, but it's the way that it's expressed as to whether it's harassment
IF yes if it's harassing individuals yes
BC if the behaviour

BC looked at collectively reaches the point of creating the culture of fear then that will mean that the university means to take action to stop it doesn't it or you won't be doing your responsibilities
IF yes if there's a coordinated campaign against individual yes
BC but does

BC not have to be coordinated. If there's a set of actions that creates a culture fear they don't have to be cooridinated
IF yes if we judged it had crossed the line, we would have to follow that up

BC : Red flags are harassment, malicious communications and defamation. they cross the line don't they
IF yes
Hearing rises for 15 minutes