Thread by @tribunaltweets

Case of Jo Phoenix vs OU to resume at 1145 with Ben Cooper, counsel for JP, questioning Ian Fribbance from the OU
JP - Prof Phoenix
BC - Ben Cooper KC
JM - Jane Mulcahy KC OU Counsel
J - Employment Judge Young
P - One of two panel members
IF - Prof Fribbance

Waiting for the hearing to resume

Resumes
J: questioning whether final RSSH statement still up on the website
BC: Want to look at JP reaction to what she was experiencing and what she said to you and your colleagues

BC This was an email chain in which JP describes some of the experiences, says we need to help Sara Early, not endorsing any particular research or treats groups differently : also says : the uni has a legal obligation to stop these campaigns against us - she is saying 'you

BC Need to take action
IF You left out two words 'you need to take action I THINK'
JM joins conversation
BC She's obviously inviting you to do that isn't she
IF Well that's her view yes
BC quotes JP email 'there's now a targeted campaign - can you let me know to what extent

BC this falls under B and H policy' she's inviting you to say whether this crosses the line isn't she
IF Yes
BC quotes 'these are forming a targeted campaign' 'I'm making a formal complaint' so she's explicit saying she thinks it's a targeted campaign and action needs to be taken

IF Yes that's her view yes
BC quotes 'at what point is this classified as targets' 'protest is one thing, making complaints with express nature of closing down network is another' 'defamation' 'will someone pls take action' so she is clearly saying line has been crossed isn't she

IF Yes
BC We've been discussing FoS for views that are 'wrong' but the question is whether the way in which you do so crossed the line. Take eg of Islamic Group. Some ppl think tenets of I are out of line with democratic values. They're free to express views. If you had a

BC sitch where large number of people were saying 'members of this research group are all anti-democratic fundamentalists because they are muslims and the OU should disaffiliate' you would have no problem shutting it down would you
IF that's an interesting one, what if the

IF research group was researching how to execute gay people. It's not black and white
BC but we agreed that the GCRN was NOT doing anything that was improper and transphobic
IF That's my view but it's not everybody's view
BC But we are exploring when and in what circs

BC the expression of those views crosses the line. This is eg is whether it would be ok to say ALL the members of the group were anti-democratic fundamentalists
J intervenes - 'the prof has anwered'
BC No we need the analogy

IF it's a very difficult contested area with in a sense two fundamentally opposed forms of belief which are completely irreconcilable and you are expecting a snap judgement from me, but it's not black and white
BC But this shows you had a bit of a blind spot for seeing

BC the nature of the communications and that's because of the pressure you were under
IF No we did not feel the pressure I think we were very resolute, we said we had an absolute commitment to academic freedom. That is not succumbing to pressure from other people

BC You keep referencing the statement from the VC eg when I said ppl were afraid to put heads above parapet. Do you really think that someone who was afraid because of the vitriolic reaction from GCRN would look at that statement and think that the OU would protect them
IF pause

IF Interesting question which I hadn't considered before. I'm not sure.
BC referring to bundle

BC *refers to collation of public statements by OU*
Let's explore the question I just put to you
Refers to OU statement 7 Dec 2021 just after JP resignation and responding to it
This statement has something that none of the other statements have

BC is waiting for his digital docs to load

BC There's a ref for first time to creating an enviro where ppl feel able to express views clearly - do you agree that's the first time the OU mentions it?
IF I'd have to look back
BC then it says we'll protect trans/NB as well as ppl with GC views - do you agree it's the first

BC time the OU mentioned protecting ppl with GC views
IF I'd have to look back
BC *refers to bundle* references case of member of faculty feeling supporter

BC : feeling supported not supporter

BC statements of what was considered good practice by a member of GCRN
academic freedom
prioritising well being
no blame or responsibility for the reaction to the network
IF Yes agree

BC quotes: 'the tone was clearly set that any attempt to exclude me because of my GC position would not be tolerated' - do you agree it's not enough to support ac but you have to say in certain terms that any attempt to exclude because of GC views will not be tolerated
IF - Yes

BC do you agree none of the OU statements do that
IF I'd have to look back
BC do you agree that positive proactive steps are essential
IF They'd certainly be good practice

BC one of things the GCRN thought could have been done better 'we asked leadership to take a stronger stance - an unequivocal statement in support of our ac freedom and cease framing GC beliefs in a narrative of harm' do you agree that all OU statements implied they

BC could be harmful to others?
IF No I don't agree the OU statements all implied the network could be harmful to others
BC who drafted statement June 2021
IF I don't remember
BC approved by executive
IF don't think it would have been no, it would

IF prob be made by small group and signed of by VC
BC Did you approve
IF Can't remember
BC Quotes from statement citing OU statement June 18 of support for trans and NB students - what's missing is support for GC isn't it?
IF yes I see where you are going with that

IF we had had a lot of complaints from people objecting
and in particular people were objecting to a logo
BC You rebut the inference that it's an OU institutional group
IF Some people thought that because it used the OU logo that the OU was setting up a GC organisation
BC but

BC You were also being told by RN members that they felt hurt and troubled but this statement of June 18 is missing any clear statement of support for those colleagues
IF I'm not disputing the statement could be better, it was composed in great haste in response to a widespread

IF Misunderstanding caused by use of logo
BC Was the statement discussed in the executive?
IF I doubt. It would have been discussed by a sub group, possible comms people, possibly legal advice and signed off by the VC
BC we already know it says ac exchanges need to be

BC governed by clear rules - wasn't this an opportunity to make explicit that any attempt to shut down GC would not be tolerated?
IF Yes that was an opportunity, would have been a clear rule
BC There is no recognition of the position on the other side, statement only mentions

BC trans and NB
IF yes I agree it could have said more on GC
BC quotes statement again - and all the actions cited are about trans and NB students and staff
IF no there's one that says bring all parties together on a civil and respectful basis
BC the framing of this statement

BC Frames GC beliefs in a narrative of harm doesn't it
IF I accept in general terms it could have said more in that direction as in the statement from AG - that was the primary narrative and the primary set of complaints that was being responded to at that time

BC What prompted statement
IF can't remember
BC grievance wasn't resolved, parties weren't brought together - you told us before it was extremely unusual for VC to make statements - so why did he stir the hornet's nest at this point
IF I don't know. I've no idea

BC statement is grudging when it says OU position is 'compatible' with ac freedom
IF It's not grudging
BC There's always that 'but' isn't there when talking about GCRN ac freedom
IF yes it was very challenging situation
BC So the reason why you didn't make that full

BC throated statement in support was bc you were feeling pressure to give negative framing
IF It was very difficult situation
BC But was it because of pressure you were feeling from other side
IF it's obviously an enormous cultural issue which expressed itself with students

IF writing to the university, yes
BC refers to bundle
J - we will break for lunch at one will you be finished with witness by then
BC - Yes

BC refers to bundle
BC you won't have seen this email at the time
IF NO
BC quotes email 'just been horrified to go an Yammer and see call to sign open letter - they don't reflect LGBT network as a whole - I'm pleased to see it - probably silent minority' - that's a reflection of

BC JP told you was happening isn't it
IF Yes we already discussed response of LBGT and we established that there was a minority and a majority opinion about the GC network
BC Prof Earle told you that she had to set up both public and private D lists because of concerns

BC I don't think she sent you this email but you can see she says that in some messages of support ppl have asked to remain anon for fear of reprisals - that' sconsisentent in what you were being told at the time by JP and others yes?
IF Neither I nor Jo were included in the mail

BC but it's consistent with what you were being told
IF Yes but I've never seen the word reprisals before

BC quotes email to person in IF's working group
quotes mail exchange about website hosting
quotes 'I was worried about my job if I helped the GCRN with their work eg podcasts'
IF well the letter you showed me from the research group within the SRA was signed by a small number

IF people - I'm not sure it would be reasonable to jump from a small number of people saying that to someone being worried about their job.
BC Somebody in that sort of position seeing the open letter signed by 369 ppl ..
IF It's about 3 per cent of OU staffing
BC But from across

BC the university and large amounts of vitriol from within OU
IF On Twitter
BC Then it would not be surprising that they were worried for their job
IF I do find it surprising

BC Part of the problems with the OU comms is that they legitimise attacks that might become more serious, do you agree?
IF Say that again?
BC If you have members of your own uni doing open letters etc then that legitimises attacks on GCRN and legitimises more extreme attacks

IF I would be very concerned about extrapolating that, people are responsible for their own behaviour
BC JP was making clear to you that she was very upset and wanted action taken re: her own colleagues
IF that's June 18 and it's around the time we set up the working group

BC You offer personal support and you say you know she's suffering and that you understand it's v difficult
IF Yes and that's why we had a group to address what I totally acknowledge was a storm at the time
BC refers to bundle

BC refers to email from JP to members of IF working group and presumably then discussed in the group
IF yes it was
BC She writes 'individuals have been lobbying and actively RTing nasty tweets encouraging students and staff to denounce us' that's accurate isn't it

IF yes we've seen accusations of transphobic and use of TERF and yes there were nasty tweets
BC More quotes 'lack of OU support - distancing themselves from our network - treating us differently to us -we've also sustained damage to reputations and careers'
IF That is JP view

BC Then she talks about serious and acute stress suffered by members of network
IF Yes - Names members of staff who are GCRN members also JPl and DD
BC - You see where she says it's a concerted attack on ac freedom
IF Yes
BC - she spells out that ppl say they want to join but

BC they're too scared to do so
IF Yes
BC She says OU has legal obligation to protect ac freedom and FOS in face of sustained attacks
IF Yes that's what she says yes. (Corrects names of those in working group)

BC: I don't want to know anything about advice you've recieved
cites email 'it simply makes the assertion that that the statements which we've been discussing are not within scope of upholding duty of academic freedom'
IF so it says we aren't taking down the open later

Open letter sorry
IF I do know 'cites email' 'would not wish to prejudge outcome of investigation'
BC: but saying the letters are within scope of ac freedom - it does prejudge the grievance doesn't it

BC Your position was that you weren't going to take an interim position on the open letters - but you have taken an interim decision and it's against the claimant
IF Well we took a decision not to take the letters down
BC but you could take the approach that it's would be

BC better to take them down because of harm to JP if it turned out they were outside scope of ac freedom
IF Know for a fact VC was getting detailed legal advice at the time
BC you were afraid to take them down weren't you
IF No the OU was getting very detailed legal advice

BC refers to bundle
After claimant resigned and left a decision was taken by working group to stop work on grievance
IF Don't know who made decision
BC Note says it was made by working group and you contributed to it
IF Ok

BC quotes from note on ceasing grievance
BC - do you understand you have some responsibilities and obligations to former employees?
IF I'm not an expert on human relations
BC When it's about bullying and harassment don't you have a continuing responsibility
Judge intervenes

BC part of this is investigating behaviour and improving behaviours - so there continued to be a purpose to the grievance because you would not that behaviour to continue?
IF But I'm not an expert
BC But you wouldn't want bullying and harassment behaviour repeated
IF True but we

IF were taking detailed legal advice and I've never heard of an employment grievance continuing after employee leaves
BC quotes again 'these are complex legal judgements and what we decide could be overturned at tribunal' so as a part of the rationale do you not still need

BC to know what the problem is because you still have to manage the GCRN?
IF We had legal advice
BC But you are outsourcing your decision making
IF I'm not sufficiently qualified on employment matters

BC Was part of the thinking that this is a particular complicated area of law, we will not reach our own decision and we'll let the tribunal decide because it's too hard for us and we'll be blamed for one side or the other
Ends examination of Prof Fribbance

J corrects herself
Witness is not released and will need to return for questions from panel and from counsel
Morning session ends: afternoon session to start at 14:00
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