Thread by @tribunaltweets

We will be returning to Jo Phoenix v Open University for the final session of this employment tribunal, which will be Ben Cooper's oral submission. Due at 2pm.

Previous sessions and full abbreviations are here: tribunaltweets.substack.com/p/professor-jo…

Abbrevs:
JP - Jo Phoenix, the Claimant C
OU - Open University, the Respondent R
J - Judge
P - Panel or Panel member
BC - Ben Cooper KC, Counsel for C
JM - Jane Mulcahy KC, Counsel for R

And we're in at 2.06pm
J: Talking about bundles and whether shared or not
JM: There is a bundle for BC from OU's solicitor
BC: Thank you
J: I haven't received it so please send it now

J: You may proceed
BC Thank you. This case is about FoS.

BCIt's the line of FoS against a GC person where has been where GCs cross the line in the past. SO looking at a diff stage of the analysis and artic of beliefs. I'm not aware this has arisen before, but all are distinguasable on the facts

BC E'thing is highly dependant on context. I site cases on principle.
J: Checking paras
BC: I've never suggested they're not distinguishable on the facts but as a tool for structuring yr analysis of competing rights. 1 extreme of a debate v abusive personal slander

BC The mix may be different and somewhere on a spectrum. Where does the expression in Q lie? My framework involves knocking down a strawman - the suggestion in Forstater and Miller isnt relevant as is about beleifs - what can reasonably said? This isnt about GC beliefs

BC It's about the treatment of ppl with these beliefs in this context - ie B&H. Taking it out of GC beliefs, eg about morality of being gay. Whether it's reasonable or not a person can express that view, but the analysis changes dep on context they say this

BC eg if expressed within a biblical context it's fine, but if the same posted on X saying BC is immoral, they've bought into the workplace context and made it personal and targeted, even if not abusive. We might take a different view.

BC Context is all & this isnt about what someone can say about a PC without it breaking the law, or by being targetted to make it harassemnt. So looking a precise analysis to see if it crosses the line or is legit FoS

BC Did it cross the line in her workplace, incl the hostile climate for GC beliefs. Getting to JMs points: there are various debates eg role of unis but has the caveat that not all debates have equal weight, is contextual. Partic protection for political views and not all she sai

BC are political. So u need to decide whether political and assess its value and content.
J Are u saying is it part of the political debate or not?
BC Is it a side issue or part of debate, and also what is the value of this to the debate? [gives example re Tories]

BC It's always multifactorial and context specific. U need to decide if a partic contribution contribs to political
J Is there any authority u rely on for this?
BC Re the value y'll see my submissions and 3 authorities, I cant remember the quotes. None put it the way in para 18.1

BC I have drawn from these re usually being relevant and whether crossing the line and no longer protected speech, and which perspective y're viewing it from. The factors shldnt really change. The 1st in her list doesnt always apply - just be likely- is content, tone used, extent

BC: [lists more incl reputational risk, impacts and proportionality]
BC: The 2nd of her points was distinction betwn words and actions, and decision makers and those seeking to influence them. If yr only an influencer using words u must be free to use words

BC I disagree. Firstly the distinction cant be taken too far as words are a form of action, and we wldnt entirely be here unless ?? So words are often accom by actions. And I dont accept distinction betwn influencers and decision makers.

BC Where is the line in this case. These distinctions dont help the analysis or as a matter of principle.
BC I'll skip over manifestations of prot beliefs. Follow JMs method.
The reason why issue, Miller and Forstster remain relevant

BC They decide it isnt reasonable or true to say GC beliefs are harmful - that is prejudice. So looking at why, just like homphobia, look at what they've done us hld look at what each harasser has done or said and their inferences. We invite u to draw the inference that

BC The discriminators and harassers have all been influenced by prejudice against GC beleifs
J They're all the same?
BC Yes. If u draw that inference the reason why test will be in favour of the C, it will be irrelevant what the manifestations are. It will be cos of discriminator

BC general beliefs. So isnt about protection of specific words. Then look at harassment issues which are subjective and no legal difficulty here. The comparitor Q will be parked as there's a wrinkle here. Finally, re harassment was it reasonable to have the effect it did.

BC For direct discrim, is it reasonably a detriment?
J But there's also a reasonable test here
BC The wrinkle is re the alleged discrim is whether the alleged harassment affects the others FoS, and balancing exercise needed here. U apply this re the open letter or various emails

BC Because it doesnt matter which perspective u look at the matter the approach shld be the same, and whether ppl have overstepped the mark. I have set out my factors and my core framework.

BC Back to comparator issue, there are 2 caveats, sorry 3 I want to add

BC 1st from Shamoon, even when not a statutory comparator in LD differential treatment may have an evidential value in drawing conclusions. 2nd is to do with how you view protected manifestations of a belief.

BC: In para 44, in order to give effect to EA10 [reads re manifestation and balancing and defining comparitor] This excludes the PC, and as protected manifestations yr comparitor has neither manifested GC beliefs nor holds them.

BC The 3rd JM ascribes to the comparior holding sim contested beliefs. I think that's likely right, but with caveat if an employer treats someone less favourably cos of the objections to that person by staff or suppliers, cos of a PC, then indisociability principle will be the

BC [missed] In order to maintain a happy dept doesnt work here. If u do something due to pressure of workers, who object to a PC, then u adopt their discriminatory motives even if for benign reasons. So yes, ann equiv controversial belief but not against the grain of prevailing

BC views. The hostile atmosphere is relevant here. I didnt put to the witnesses that they'd adopted hostility due to discrim beliefd. But they were influenced by hostility to her beliefs and bent to the influence of other workers.

BC Re the facts, detailed in submissions. Regarding the conduct of the C, and undue focus has been on attacking her. The WhatsAPP arent a diametrically opposed story to her narrative evidence. Consider them in parallel reflecting the same ups and downs, written in diff contexts

BC These ppl found themselves and it was set up as they knew they were under siege, understood need for confidentiality. It's a bunker mentality between them [reads about putting head above parapet]. You see them strategising over union mtgs eg over a death threat

BC This isnt a great campaign for a movement in the uni but trying for little wins, and supporting each other. The idea the OU takes credit for RN surviving is viewed w irony on this side. They know they'll be attacked, but not the extent. Now hunker down as they know it'll be

BC difficult. You'll see msgs incl JPk saying y'll need to step aside now. JP had been putting on a brave face and she needed to step out. She was seriously ill & distressed at that time - all the witnesses perceived that. I cant recall any of Rs witnesses denying that, esp IF

BC has important view. Prof H saw her break down so it's not true she had a private and personal persona in all this. She's in Sergeant Major mode trying to create space. Unless u think she's an arch manipulator or great actress, she didnt put everything down in one place

BC Her being a campaigner is a non starter. She was organsising but not politically active here, She was trying to set up a RN in a hostile environment which she didnt deserve. She doesnt have special rules applied cos she WhatsApped strategy

BC I break it into 3 aspects
J what do I use as a ref for aspect 3?
BC 1 is ostracism and isolation. 2 is harassment and public letters. 3is handling of the respondent and her grievance.
J Ok, discussing paras
BC Aspect 1 key is email exchange between LD and DD and racist uncle

BC comment. The uncle comment, JM thinks it was a one off but it's there so unless the c has hallucinated it follows this must have been said by Miss Westmarland.
BC Many in dept are opposed to her beliefs and hasnt been explained away and linked to her isolation

BC The witnesses havent explained cogently why DD did something on the day of the meeting and the emails. These are key to the 1st set of detriments. They're not small issues. Being compared to a racist and then pointed silence in a mtg and then told by LM that u shldnt speak

BC about yr experiences, that's signif. The C keeps dwelling on the uncle comment. The obvious reason why she didnt complain in 2019 she wanted to stay at the OU and make things work. Also Forstater happened in June 21, even if a 1st stage judgement

BC So u see the sudden release

BC Aspect 2 engages the principle and go thru the comms and why they were sent and the context. I'd add JM fails to engage w where she says the line is. Much as she says re FoS and gets close to it being a free for all. It cant just be involving

BC abusive language
J U cant say you're not foing to give us any line here
BC In my submissions they give a flavour of where the line is [read]. Touchstone is its an abuse of freedom to close down freedom. A pretty good indicator of where the line shld be. JM gives no indication

BC of where the line shld be. The 3rd is Prof H's response to yr Q Judge re how he'd found out about the WGs decision on interim measures. The only reason given was it cld cause distress. This is absol key as confirmation of the case I'd given to the witnesses

J I thought u said reputational damage?
BC Either way it's appeasing those disagreeing w her GC beliefs. I can hear whispering re the word distress. This neither adds or subtracts from my point - distress isnt an answer to the point. Pandering to or appeasement to

BC discrimination isnt allowed. Then the inadequacy of dealing with the grievance, incl the WG. Prof Hs gives a window onto the decision making, only window we have. Finally limitation, GC beleifs werent protected before 21st? June. Before this MS Reindorf might have been indire

BC discrim against, so this was a non starter. ?C applied for direct discrim amendment 3 months after Forstster w limitation reserved until after the final judgement which was allowed, as wasnt reasonable to bring in direct before Forstster. Obviously only a first judgement

BC Is there anything y'd like to ask me?

J The tribunal might find it helpful to be clear about which matters u want us to draw inference from re discrimination?
BC Matters in paras 35-40, esp non renewal of r'shop and CCJ conference. And some others incl points about inference

J Thank you. Also re victimisation claim, I'm not sure if the WG or indiv employees of the OU, and hence the OU, that were the victimiser? Trying to understand who u feel
BC Yr right that Miss Molloy made that decision. It doesnt matter to me and the R doesnt take a statuatory

BC I'm saying both, and I dont have a positive case. I dont think anyone else took respon for that decision so u might conclude it's her, and I'm happy for u to ultimately decide. It was part of the WG either way.
J They're all my Qs. Thank you for all yr submissions.

J There's a lot to get through so I don't want to suggest when an decision might be made so I don't think we should look at dates for a possible remedy meeting at this point.
BC Thank you to the panel for just about getting us through in time
J Asking about the bundles being left

Hearing finishes at 3.18pm.

J: Justin, you can let the observers out now...thank you.

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