Thread by @tribunaltweets

Good afternoon. This is part 2 of today's morning session at the employment tribunal (Prof Jo Phoenix v The Open University).

BC: In your WS you say 'panel was appointed' but dont given any more explanation as how that happened. What was the rationale as to why an internal panel and not an external investigator?

CM: This was over 2 years ago but I believe the advice we were given was that wasn't the standard process or not an option in the process.
BC: Im sorry we've just looked at the process and it clearly was. You are on the executive responsible for HR Ive got that right haven't I?

CM: Yes but as Ive said I was not in the detail of the policy or the grievance. I recall the qu'n about whether we should consider an external and to my recollection the answer was that was not within the policy.
BC: Who decided which 2 people to appoint to the internal panel?

CM: Me and employee relations person [I think!]
BC: Can we agree one of the advantages of external over internal is that internal people have their main jobs to do so if urgent its less easy with internal ppl
CM: Yes broadly I would agree with that

BC: Corres between Sam and Richard on the panel. Sam role to run the process?
CM: Yes
BC: We can see conversation about training for the panel members on 6 July. So already some time after original grievance

BC Discussion about a 3 month timeline. And 'this was my first grievance case?' Given you have said this was complex is that sort of person appropriate to be appointed?
CM: I wouldn't agree. The support would be provided on the process and the panel members would have been

recommended on that basis of knowledge and understanding of the issues. Support on the process would be provided.
BC: 'If you need to move quickly I best step back to allow some with a more forgiving diary to step in.' Did availability of people and urgency affect your decision

as to who to appoint.
CM: Yes and we talked about releasing people from other work to accommodate.
BC: Where do we see that?
CM: Nothing I can point to

BC: What made Richard and S suitable for this case?
CM: Understanding of academic freedom and would understand the differences and be able to ask pertinent questions and get a quick understanding

BC: Email from RH from 18 June 2021. He's writing to Prof D, another witness. 'A Group of OU researchers have launched a GCRN. Deliberate provocation given the OU Pride celebrations etc...' [BC reads] What steps did you take to ensure panel members were fully impartial?

CM: We considered whether they had any previous links to the matters under consideration
J: You're using the passive voice again do you mean the working group?
CM: No I mean the smaller group talking about the recommendations. We were excluding people involved in the protests

BC: Its only fair I give you a chance to answer this. Im going to be suggesting to the P that it's quite clear that very little rigour or attention was given to the way the Claimants grievance was set up to be considered. Is that fair?

CM: I completely disagree
BC: No effort to ensure impartiality
CM: Completely disagree
BC: Focus of wkg group was reputation?
CM: No, incorrect.

BC: Pressure of social media meant you kicked grievance into the long grass
CM: No I dont accept

BC: This email chain is after the grievance investigation meeting with JP on 19 August. Prof RH writes re suspending open letters due to ongoing greivance. SH another panel member agrees. They discuss ongoing harm to JP and paramount duty of care to JP. The panel made the case

there should be an interim action to take down the letter(s)?
CM: Yes but we took advice and they were to remain
BC: So you cant give anything further re the consideration of the balancing of harms
CM: I cant say any more than Ive already said.

BC: Do you recall the open letter, the Wells statement and the KMi statement?
CM: Yes
BC: Do you agree in broad terms, that both called for disaffiliation from GCRN bc of GC beliefs?
CM: Yes broadly

BC: Email from JP where she is horrified at the idea that, 2 months on from when grievance was launched, it was going to extend another 2 months. She refers to the possibility of an interim finding on public letters and statements. She then goes through the test under the EA 2010

Was this raised with wkg group?
CM: Matter was raised
BC: 1. Was conduct unwanted?
CM: Agree
BC: 2. Related to GC belief
CM: Agree
BC: 3. Affect on JP - you already knew about that? You dont need to interview authors

CM: I think correct but that oversimplifies the situation. We looked at this and we took legal advice.
BC: The OU is not waiving privilege on the legal advice so I cant question on that and tribunal cant make any assumptions. I need to know the rationale you and wkg group had.

So rather then repeat that you took legal advice, I am asking you that JP is right when she says you dont need to interview authors re point 3. and the affect on her
JM: She's answered that
BC: Very well. But logical for investigators to say JP has a strong prima facie case and

and that would weigh in favour of interim measures. Do you agree that is possible and logical way to proceed?
CM: I agree that it was possible but this took place quite some time ago. All I can say is that I know this discussed and was given careful consideration.

BC: On the face, the letter are public group letters trying to persuade the university to discriminate?
CM: It wasn't as straightforward as you are suggesting. The determination is about the specific facts. Prior to the investigation those statements were lawful expressions

BC: On 10th Nov there was a public statement made on GCRN.
CM: Yes
BC: To what extent were you involved in drafting this?
CM: I would have been involved as others were

BC: Nov one updated on the progress to bring sides together. The update is that it's difficult and still going on. Why give this update?
CM: This was about an update. It was the statement on the 24 June that made a number of commitments on actions. This was an update on all.

This was done as felt important to address that actions has been done.
BC: The Nov statement 'executive found formation of GRCN was compatible with academic freedom but upset some [paraphrase]' Do you accept what's missing is that GC people also upset?
CM: Yes I think correct

BC: Do you agree that applies to other statements
CM: Yes
BC: Do you agree that a statement re harassment not tolerated was also missing?
CM: Yes
BC: And it was bc wkg group was focussed on complaints of other side rather than JP?

CM: I dont agree
BC: What part did you play in decision to suspend grievance after JP resigned?
CM: As a senior person involved it was my decision.

BC: 4 points given for your rationale here. Do they reflect your decision at the time?
CM: Yes
BC: Purpose is to address employment matters, improve or mediate relationships etc. But this was about harassment?
CM: Yes
BC: Wells statement still on website
CM: Yes

BC: By this point she was a former e'ee but still a member of GCRN and still a defamatory statement up attacking her and the group?
CM: Yes
BC: So ppl she was complaining about were still employees so you would need to make sure they did not repeat the behaviour.

Which goes to point of grievance.
CM: Yes there were other grievances that covered same and similar issues
BC: Which reached decisions as to whether what JP experienced was B&H?
CM: Yes
BC: Its a bit surprising that hasn't been disclosed to us

J: Difficulty is that person has already given evidence. Now its been brought up it may we will need to address
JM: Never been any application to us for this material. I will take further instructions
J: There may be ways we can avoid knowing who they are, just the outcomes.

I dont want anything more than 5 minutes each on this. Lets take break now and longer lunch.
BC: Can I finish bit then Im done?
J: OK
BC: Your last answer. Rationale you had at the time. When you refer to other grievances, are you making that as a point in argument now or did you

consider at the time that you didn't need to progress JP grievance as other ones address it.
CM: I think thought so at the time
BC: Here you are saying we as OU wont reach a decision on these complex matters we will wait for tribunal to decide?

CM: I dont think so
BC: So you weren't avoiding upsetting either side by waiting for tribunal to give you the answer
CM: Not at all.
BC: Thank you those are all my questions
[Have now lost sound on the live feed]

[Sound back - talking about Savage Minds podcast]

[CM does not recall working group talking about that podcast or part thereof]

P: Earlier you were asked about appoint of one of the investigation panel (RH) [inaudible]
CM: I recall would need to be someone experienced enough re academics and academic freedom.

P: Bearing that in mind, what was the process not [inaudible]
CM: It would have come first to director if e'ee relations. That would have been considered and put to wkg group and legal advice would have been taken. Thats how we would have finalised

P: Did you consider academic freedom and how did you come to the decision?
CM: Yes and the balance was lawful protest, academic freedom and the obligations under EA2010, in the round.

JM: In your WS, para 40 you say that you believe that you discussed obtaining support from comms team re social media traffic. Did you identify any breaches of SM policy?
CM: I cant recall. On 18 June I was on annual leave and took all from Prof Wilson on leave.

She sent an email to us later that day. There was one in particular that was of concern to Prof W at that time but I dont recall whether an employee of OU was identified.

JM: We heard evidence from Prof W re one that involved violence and concerned her. Does that prompt your memory?
CM: It was two-fold. Concern was violence and also if this is a member of OU then that is likely to be in breach and action needs to be taken. Where violence was

external person this was referred to police.
JM: JP sent some other retweets that she said were concerning. Your WS suggests this was something comms team were monitoring. At any point were you aware of tweets from e'ees that breached the SM Policy?

CM: There was conversations around tweets that were not seen to be an absolute breach but perhaps not what we would expect. It was agreed that the LM of those people would be spoken to. That initial approach was agreed, line management route.

[CORRECTION the above questions after P questions from 13.20 were I believe from the Judge not JM]
J: All my questions, lets come back at 2.30pm

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