Thread by @tribunaltweets

Good morning; we are expecting the Employment Tribunal in the case of Jo Phoenix v Open University to resume at 10.00am with further witnesses from the University appearing.

Our Substack page has links to our record of the previous sessions. tribunaltweets.substack.com/p/professor-jo…

Abbreviations:
JP - Jo Phoenix, claimant
BC - Ben Cooper KC, counsel for JP

OU - Open University, respondent
JM - Jane Mulcahy KC, counsel for OU

J - Employment Judge Young
P - either of two panel members sitting with J

There is a comprehensive list of abbreviations (for witnesses and other persons, and for organisations and departments within and outwith the OU) on the Substack page.

This should be the final day of witness evidence; the court has set aside tomorrow for Counsel to prepare their written final submissions, and will then hear them on Friday.

[we have been admitted to the hearing, but there is as yet no sound]

[the Clerk is finalising the session set-up and has asked a Ms Tomlinson to use her camera - this is possibly a Catherine Tomlinson, Senior Student Advisor about to be a witness in which case we will use CT for her]

[J is asking clerk to make sure everyone can hear each other, as Ms Tomlinson will be giving evidence remotely]

J: Do you have your WS and other documents
CT: yes

JM: thank you for joining us while you are not well. Ask you to repeat after me [the affirmation]

JM: [Takes CT through name & address & confirmation of WS].

BC: [bundle ref] this is material you gave to investigation panel?
CT: yes
BC: you set out definition of transphobia - borrowed from SNP?
CT: Yes

BC: includes group-blaming of trans people for actions of one person. You can see that principle would apply to other groups - for example if black people, that would be a form of racism?
CT: Yes

BC: And applies to beliefs too. To gender critical beliefs too.
CT: no it would not apply, it is more contextual and nuanced.
BC: So if you accused all GC people bcs 1 had said somthing, that would be discrimanation
CT: I honestly can't say.

BC: You say not much knowledge of sex/gender discussions b4 GCRN launch?
CT: vague awareness but not much.

BC: You say when you went to look, you found all members of the GCRN had in common negative attitudes to trans people, hostily, esp to transwomen.
CT: Yes

BC: I suggest you went down an internet rabbit hole of only one side of debate and came out with negative impression
CT: No bcs I went in with open mind. And I read much on GC side - Trans, Material Girls. Wanted to understand whole thing, made sure not to cherry pick

BC: Am going to give an example of a hostile reading - [bundle ref] - you cited this as JP doing something improper, setting up 2 TW for hostile messaging. We can see JP saying she is *not* doing that - is putting out example showing dire quality of "debate".

[BC reading a tweet, with a lot of swear words, and another calling JP views bullshit]
BC: You decided claimant was at fault when she is not.
CT: Can you clarify the Q?

BC: Are you saying JP at fault here?
CT: No, am saying it's an example of. It comes down to power. and of follower numbers. And not saying those tweets are OK but it's about power, this is not the way to say "this is the kind of thing that is said and shwing people's user names.

BC: The balance of power at OU was anti-GC
CT Don't know, I'm not an academic.

BC: reaction to GCRN launch was strongly anti-GC.
CT: Don't know
BC: and also was on social media.
CT: didn't really look.

BC: You posted on yammer network [bundle ref]
CT: was sort of saying people should provide feedback if they wanted.
BC: You had presumably by now found out enough to know JP is a lesbian, and member of LGBT network?
CT: Knew, but didn't think of it at that point.

BC: You are firmly opposed to GCRN, you are name-calling.
CT: No, comment on GC movement in general, not personal.
BC: You knew who GCRN members were; when you say "hate group" you are calling members haters.
CT: Disagree

CT: I work in student support services, our group often gets called names, doesn't mean every person.
BC: This was only six people
CT: I am talking about the movement.

BC: You say hostile and degrading content
CT: Yes
BC: you were calling GRCN a hate group.
CT> No, GC movement
BC: You say "groups".
CT: My understanding is it is, under Southern Poverty Law Centre definite.

J - SPLC?
BC: [reads from bundle]
BC: You are saying GCRN is a hate group in that sense
CT: Yes

BC: You signed open letter going around
CT: Yes
BC: You understood it was calling removal of OU platform
CT: yes
BC: you agreed with that and that's why you signed
CT: Yes but didn't expect it to happen. Was more about showing support

BC: You wanted to send messge to GCRN to say they are not welcome
CT: Was not thinking that way - wanted to support students. Reject your framing

BC: You could have just written a letter of support to students and staff. Not this letter
CT: I only work in a small part of the university. No real voice, so signed this letter.

BC [bundle ref] this is an exchange you and JP
CT: Yes only one ever, AFAIK
BC: You say FoS is not freedom from consequences. You say you agree women still need rights but that's the only point of agreement bcs she is not "fully intersectional". You are threatening consequences

CT: I meant criticism and would have said so at the time if I'd thought
BC: "Freedom from consequences" is often used to threaten GC views
CT: disagree

BC: You refer to JP being a woman and a lesbian and those are "core" to her but you say her views are a choice and cannot be defended. You think ppl you disagree with are fair game
CT: I don't know JP and didn't know abuse she was getting. No I don't think "fair game".

BC: no more Qs

[J and panel conferring to see if they have Qs]

J: Miss Tomlinson did you consider whether the GCRN should continue in OU, or did you think it shouldn't.
CT: Would prefer that it didn't personally, but am not academic / up to speed on AF, so not my decision

J: What about freedom of speech?
CT: Am all in favour.
J: I think you haven't understood, I meant - you have said AF re the GCRN , so, what about FoS in that?
CT: You have to expect pushback if you say something people disagree with. Not abuse, but, people do disagree.

JM : no re-examination, thank you CT for evidence.

JM: Next witness is DD - Dr Deborah Drake
[Senior Lecturer Criminology, Head of SPC 2018-21]

[JM takes DD through confirming statement, affirming TWTANBTT]

JM: corrections to WS - ref to Louise as deputy dir of EHRC - should be HREC. And same error later one.
JM: And a date error - says 25/5/2019 - should be 2021.

BC: From 2018/19 onwards you understood principle of Academic Freedom and OU policy on it, and your duty to apply to the department?
DD: Yes

BC [bundle ref] this is not legible ... [different ref to better copy] this is not the whole thing but has the parts we need. Says AF = freedom within the law to explore, including of unpopular and controversial views.
DD: Yes absolutely

BC: notes even that some views can cause offence - you knew you had duty to uphold?
DD: Yes
BC: and that you must be pro-active in securing AF? Not just not interfering, but actively enabling?

DD: Yes but must read in context of this other part of policy - duty of care, minimising harm inc psychological.
BC: But do we agree that offence <> psychological harm?
DD: Not that simple - some people can't differentiate bcs trauma etc

BC: Can we agree then that if one person did find it harder compared to other colleagues, that does not mean you must shut down what they are objecting to?
DD probably

BC [bundle ref] this is MoU between HERC/OU and CCJS.
DD yes
BC: says under risk management - reputational risk, says each org will take care to mutually inform/consult on any such risk.
DD not sure how much I remembered of this at the time

BC: As basic courtesy you would discuss with them
DD: Yes and re conference I think the thing was, we thought RG would be agreeing with us.

BC [bundle ref]
J - Dr Drake you do speak quite fast - could you possibly slow down a little
DD no problem

BC this is code of conduct for events - IF has told us he is pretty sure version then was the same. Talks-of controlled event = one where speaker might cause offence and how this might affect AF / FoS
DD in theory yes

BC: not just in theory. If OU gives out message that it will cancel events if a GC speaker present, even if talking about other things, that sends invitation to complain
DD not how we were thinking about it - lots of other factors - s/o thinking of retiring

DD some speakers were not experts in -
BC: Not my Q. Which was, if you give out msg that things can be cancelled if objections raised, that implicitly affects AF.
DD: Not sure I agree.

BC: Go back to the policy - it is about precisely this - and says such events *should* go ahead
DD: Um, it felt at the time, we felt, it says "if reasonably practical"
BC: Says the only reasons not to are health and safetfy, encouraging terrorism, damage to property

DD not sure we were thinking in those terms, we were thinking -
BC: I'm trying to get clear about the pricnciples of the pooicy and whether you accept them
DD: not sure about that. Other elements of AF cd have been silenced if we had held event.

BC: moving on. [bundle ref] email to Mr Garside - you were copied in as conf organiser - from Mr Tooms. You'd decided to cancel conference and RG had been informed.
DD: I think it was more we at OU had discussed, one of us told RG who disagreed with us.

DD: we had thought RG was on side with that
BC: he never said that did he
DD was not me had convo with him
BC: it is clear here he disagrees with you. He had made it clear to David
DD not what I understood

BC: One of the factors for cancelling conference, and for reviewing CCJS relationship altogether, was RG view on trans prisoners and some in HERC objecting to him
DD part of it but not the only thing. 2 or 3 objectors and there are about 60 in centre.

BC: [ref] it's clear conference was cancelled bcs of RG views on trans prisoners, and staff agitation about that.
DD: just one factor
BC: that is why you cancelled
DD: it was falling apart of its own accord
BC: not of its own accord, Because of agitation

DD: speakers decided to pull out. Fell apart.
BC: This is AF failing in front of your eyes.
DD: We would have had to put in other speakers
BC: No you wouldn't - see para 4. Refers to RG statement 2018 and that caused vague rumblings about attendance.
DD yes

BC: Then a further statement and you say "anger" etc - a social media storm
DD yes
BC: no reason to cancel at this point
DD: no
BC: THen you say "one speaker" says may pull out. Who?
DD not prepared to say

BC: Then you mention other speakers thinking of withdrawing.
DD: Yes and all from Liverpool JMU so was very significant
BC: You make no mention of persuading them to stay?
DD: Well we talked, mostly Steve not me

BC: You talk of "direct action" - not spelled out what.
DD: Possible protests. But not a problem, we could have dealt with that.
BC: You say at least 1 colleague wrote in corcerns, how many?
DD: Not me handling that so don't know

BC: we see mention of opposition within HERC.
DD: yes but those not ppl involved in conference, so not relevant
BC: we don't have any evidence of these
DD would have been by phone.

BC: Conference was not about trans prisoners. You didn't have to have this turn into a fuss about RG views on them
DD: break down please?

BC: was not about trans prisoners
DD: That's right
BC: What you needed to do was *not* turn it into one about abolition and trans prisoners; you should have ensured that the original conference went ahead.
DD: We couldn't get the speakers we wanted.

BC: The only evidence we have is: 1 speaker probably pulling out, 2 thinking about it. That's the sum of the problems.
DD: Timing was getting short. I think s/o who worked with JMU more ...
BC: Did Jo Simms want cancellation?
DD: No, we didn't want to tell him about speakers

BC: You are avoiding Q. Did he want it cancelled?
DD: No I think he's opposed to any coference cancellation
BC: You should have gone ahead.
DD: We decided that speakers pulling out in enough numbers to make conf impossible for original purpose.

DD: Had been a conference on abolition previous year.
BC: How many speakers due?
DD I think 7
BC: wd have been possible to replace 1-3
DD don't think so. They were asked bcs relationship with Jo Simm. Not experts on subject, asked bcs Jo, not easy to replace.

BC: I suggest to you we have writ small a repeated problem with OU response to these issues. On these, institutional cowardice. You and your 2 colleagues re this conference. Too willing to cave into and appease the dominant academic view.

DD I don't think at this time I even knew what 'gender critical' was. new concept. I'm not interested in it. Not very aware. Vague idea in context of RG statements but that's all.

BC [bundle ref] email from you to the 2 other conf organisers, 8th March.
DD yes
BC: Prof Scott had sent you link to RG reaction
DD yes I don't recall this email but.

BC: You set out that there are 2 camps, you saw "one camp says TWAW, the whole world basically, and then there's RG in the other camp" - you know what the dispute is
DD this is kind of me starting to find out.

BC: You say you'd had phone call with Jerry who had been all in favour of cancelling, bcs reputational damage.
DD: It was just a small part of why we cancelled - main thing was, resources, speakers
BC: This is you caving in to what you think is the "right side"

DD: No,this was someone's impression *after* we had decided
BC: was Jerry Mooney one of the people that had raised concerns
DD: No
BC who where they
DD can't remember

BC: So how do you know he wasn't one
DD He didn't know about the cancellation till afterwards
BC [bundle ref] 21/3/2019 there had been a HERC meeting where you explained the cancellation of the conference
DD: I don't recall it
BC: on 14/3
DD: Don't recall specific meeting

BC: We see Dr Downs saying cancellation was about not having RG controversial views on trans
DD: That's LD interpretation, can't speak to that
BC: THis was a capitulation to trans activists
DD: Not how we viewed it

BC: Review of relationship with CCJS entirely down to view of RG within HERC
DD No
BC: obvious advantages to the relationship. Significant organisation in the field
DD: It has been
BC and still is
DD: Still making important contributions, but staffing reduces so less attractive

BC: They run important journal
DD: Yes
BC where you get free advertising
DD: Not aware of that
BC: OU gets to publish blogs
DD: Don't think that's so

BC: 4 day conf 2018
DD it went very badly
BC: no evidence of that
DD no
BC: 4 day conf is a major event?
DD yes

BC: And main reason HERC wanted to end, was RG views
DD not the main reason

BC: You've said you weren't involved in the review
DD: yes
BC but you said you know the main reasons.
DD: I read docs afterwards.

DD: and I knew from my own work that CCJS not as good as had been, and a colleague had felt the same.

DD there were other factors at the time

BC [bundle ref] notes of a HERC meeting 25/6/2019. says after cancellation, there'd be a review looking at relationship re end of current term in 2020. You were there
DD yes

BC: We can see summary of reasons for the cancellation first 2 bullets. 3rd bullet then talks about RG public statements.
DD: don't remember
BC: says faculty review process discussed.

BC: Faculty had had to step in bcs could not trust HERC not to discriminate re RG views
DD Not how I understood it, was not about that, was faculty ensuring a complete review.

BC: [reads about the areas in play inc equality etc and that HERC not the right body to decide]
BC: Q being asked is, shall we even bother with review given RG? That's what note says?
DD yes

BC: It's the only thing mentioned - that RG views a problem?
DD: I think more what Leigh said. That this was a catalyst. Relationship had been deteriorating anyway - this was just one more thing.

BC: This is a re-writing of history. The notes mention none of that. Only RG views
DD: No, this is showing it's a catalyst, the review did mention other things, project that had gone badly, previous conference.

BC: THose are figleafs. Real reason was RG
DD disagree. If other staff had still been in place we could have worked together. Problem was depletion, not RG

BC: HERC opposition to RG so strong that even him retaining library access etc re visiting fellowship was a problem
DD: disagree. 2 or 3 members opposed but out of about 60

BC: convenient for break?
J: Yes. Resume 11.50