Thread by @tribunaltweets

Welcome to part of our coverage of the final afternoon in the case of Adams v Edinburgh Rape Crisis Centre. Our coverage of the first part of the afternoon is

https://twitter.com/tribunaltweets/status/1750150786779132360

The Court is taking a five minute break before hearing from the final witness. This will be Katie Horsburgh (KT) a member of the ERCC board.

J [administers affirmation to KT]
DH [takes KT through confirming statement - name, age, address, check of signature, confirm truth of statement. KT confirms all]

[DH microphone may have moved or something - he is hard to hear]

[DH & KT clear up a mistake made in a date and agree correct one]
[DH is showing KT in the bundle the various docs her statement refers to, to add page refs to statement]

[DH has turned on mic. Still confirmed doc refs with KT]

[KT swears in her statement - with the date correction already noted]

NC: Some Qs re your background. When did you graduate and start work?
KT: graduated June 2022, started work month later

NC: How did you come to ERCC
KT: Saw advert for trustees

[NC also hard to hear at present]
KT: confirms age = 23

NC: [is discussing KT career experience eg line management, but very hard to hear]

NC: Q re Roz's age - KT confirms RA older than herself

NC: Qs re ages of rest of panel / board
KT: Don't know the ages.

NC: Have you met the other board members. Not asking exact age, but to confirm they are older than you considerably
KT: Some similar age to me, some older.
NC: Mairi Rosko older, Niamh Mc[?] same as you?
KT: yes pretty much

NC: WOuld have been hard for you to overturn decisions of older colleagues.
KT: Disagree. I reviewed everything independently, took my time, consulted Worknest, had full authority to make decisions. You can see in outcome letter some disagreement with disc panel.

NC: Had you done a workplace disc previously
KT: No first time, so hence I consulted Worknest a lot, and guided by policy.

NC: So if you had thought disc panel had got it wrong you wd have said so
KT: COrrect

NC: Here you discuss worknest advice. Quote it at length
KT: Yes
NC: You're told appeal doesn't have to be long or complex because ultimately no real sanctions from disc hearing

KT: I think they were advising, stick closely to the purpose, so that's what I focussed on.
NC: They mention no disc sanction. Misses point surely. RA had been found guilty of 2 offences, 2 different policies.

NC: So am saying, it is missing the point to say no sanction so nothing to address. But C found guilty of insubordination and of fault under B&H policy
KT: I ended up agreeing with disc panel that no sanctions needed.

NC: But what mattered was, C had been found guilty under B&H policy
KT: Yes as employer we have to investigate breaches of policy

NC: We see here, 2 poss approaches - re-run disc process or, review fairness of it. WHich did you take
KT: Mix of both. Verifying outcome of disc and then reviewing fairness of process. Matter in its entirety. Was process fair, do I agree with outcome.

NC: In your WS you quote a bit of policy and say you used this to make decision to waive the stage 1 sanction. Again, going to sanction - missing the point
KT: I took each allegation in turn and the grounds of appeal from RA and answered them all. Fair, confindential.

KT I offered to explain in person to C but she did not take up offer.

NC: You say in WS p24, re alleged breach of confidentiality by MW, you say you discussed with Miren
KT: Yes by email
NC: what did MS tell you
KT: May be confidential
NC: Court aware MW disclosed abuse of relative but have kept nature of relationship confidential

KT: Miren gave me an explanation that meant I was reassured it had been OK for MW to disclose.
NC: You are saying there is a relationship where it is OK for s/o to disclose other person's sexual violence history. To entire workplace, who might meet them,

KT: In this circumstance, it was OK. You are right - in general shd be entirely confidential. But in this case, confident not unlawful.
NC: Not inappropropriate?
KT: I did not havee those concerns in this circumstance.

NC: WS you say you looked into concern and checked for any bias. Did you find any?
KT: No; looked at the evidence and how we had used it, so - in outcome letter I focussed on email exchanges bcs black and white, and the upset after - also documented.

KT: Set aside what different people might have said or viewed re what RA views were - all inconclusive, so, focussed on black and white evidence. I detail evidence I used in the outcome letter.

NC: If you had seen bias in the IX report you would have been concerned?
KT: Absolutely
NC: But found none.
KT: No - looked at how decision making happened, how policies applied, it was a fair and confidential process.

NC: IX report - [page ref] 3rd page. Conclusion - Nico says 2nd email from RA suggests she not just looking for guidance, but also seeking conversation re sex, gender, identity. Is that a bad thing? A discussion?
KT: No

NC: So why is it mentioned in the IX report?
KT: I think Nico was trying to set out what had happened - it was then up to disc panel to make any decisions about it. Just saying what happened.

NC: IXer is going to be documenting what she found relevant. So if this is included, it's Nico thought relevant and disc panel should know?
KT: Nico's not here
NC: No she is not.
KT: I can't speak for why she included.

NC: Another conclusion section of Nico's report. She says RA says nonbinary people identify such, says this says that but that the Tinclusion policy says different things. Nico is setting out ERCC position and saying where RA views appear to differ.

KT: Is this re interview with RA?
NC: No it's conclusion to report
KT: So Nico is setting out where what RA says differs from policy.

KT: It doesn't say the difference is bad, it just sets out and then sets out policy. I can't speak for Nico, am not Nico, but I think she's saying ppl must work to policy.

NC: Nico is identifying something the disc panel may find discreditable?
KT: something panel may find interesting,
NC: Panel are only going to be interested if discreditable surely?

KT: No, in lots of different aspects [longer explanation]
NC: I will re-ask. Anyrhing Nico includes as conclusion, must be something she htinks panel might find relevant to disciplinary. In the conclusions - not report narrative

KT: Yes conclusions set out whether or not someone has done things complained of.
NC: So if Nico includes that RA thinks NB people identify as both men and women but policy says neither, inference is that Nico thinks that is disciplinary matter of interest?

KT: Just highlighting policy.

NC: Different section - Nico appears to be saying it may be a disciplinary matter to hold the wrong views?
KT: It's saying, deviation from trans inclusion policy.
NC: Holding the wrong views would count?
KT: No not views - T-I policiy is clear what is breach.

NC: So why is Nico including discussion of RA views here?
KT: can't comment
NC: Am asking you to say what inference you think tribunal can draw.

KT: are you asking, can you re-ask
NC: Nico says, staff have mentioned RA having different views. Inference is, Nico is including difference as potential disc matter.

KT: No - it's about taking v seriously when there are Qs of inclusion of minorioties. We have to take seriously always.

NC: Discussion here of having NB ppl in women-only organisation.
KT: There are no men at ERCC. Open to all genders
NC: Am talking about staff
KT: I think website says we create women-only place.
NC: Says no men
KT: Correct

NC: You are aware some ppl think being man or woman is matter of biology. Can't change. Some ppl think yes
KT: Yes they do
NC: So you are being unclear when you say "no men".
KT: Disagree. T-I policy is on website. And we have a meeting to match ppl to support worker.

NC: Are you saying that saying "no men" plus publishing TI policy, that means all SUs will be clear that there might be TW employed?
KT: We don't employ any men -
NC: Not asking that. Asking if clear to all SUs
KT: In combination - policies, initial meeting - yes, clear.

NC: Can you imagine an SU maybe without your educational privileges, who might *not* understand that?
KT: We have diverse highly trained team, match the service standards, to put with right support worker

NC: You say an SU, if has misunderstood from your website that there may be TW, you would clear up at 1st meeting?
KT: [missed detail of reply]

NC: Going back to employing NB people.
KT: We recruit using women-only exception Eqality Act. We ask for documentation - passport usually - require to say F. If s/o wants to transiation at work we have case by case approach. We have to be sensitive re this

KT: Bcs transition also protected in EA2010. And we have to adhere to national service standards. So we do case by case, meet everyone's need, perhaps legal advice.

J: Were we talking re recrutiment?
NC: Will specifically now. You use EA exceptions based on self ID, so, you wd not employ a NB person? Wd only have NB staff if transition post appt?
KT: yes

NC: And re TW - wd need ID as woman, passport, otherwise wd not employ?
KT: Yes - self ID, but with some docs.

NC: [new page ref] in IX report. "Facts established". See 10. RA has said ERCC shd tell ppl that AB is female. Says RA brought up "other worrying opinions". Did that expression make you worry re prejdudice re protected belief?

KT: Prejudiece from whom?
NC: From Nico.
KT: No - she was reporting I think.
NC: You think she thought it was irrelevant but included it anyway?
KT: No not irrelevant - she wd have included bc relevant.

KT: But as I say I stuck to the email evidence eg.

NC: And here - [missed] did this make you wonder about prejudice re belief?
KT: No

NC: Another mention of RA views here. No alarm bells?
KT: No - Nico IXing re breaches of TI and B&H policies. So I focussed my report on those and not on various stuff people had said.

NC: Miren said this am that she cd not think of any expression of GC / sex realist beliefs that is not transphobic. Do you agree with that? Any expression is necessarily transphobic?
KT: I've not heard every sex-realist view expressed, so, can't say all transphobic.

KT: Too simplifying to say that.
NC: Can you think of an expression of it you wd not regard as transphobic?
KT: Not sure what yo uare looking for.

NC: Do you understand what I mean by SR beliefs? Know what they are? Sex is binary, 2 sexes; everyone is M or F; you can't change between them; sometimes sex matters. Is that transphobic?
KT: Yes the way those views expressed are often at expense of trans ppl.

NC: The way I just said them. Was that transphobic?
KT: Making judgement on just a few sentences - lacks any nuance.

NC: RA says, referring to "TERFS" is not conducive to dialogue. It's in Nico's facts found section. Because she thinks that's a disc matter? RA is being accused of defending transphobic ppls by saying "TERF not helpful", and it's a finding against her?

KT: Can't answer for Nico. I didn't focus on those parts when writing my own report; was not concentrating on differences of views. I think trainings should be a safe place to ask questions.

NC: Began my Qs with had you seen any bias. We have looked at a number of places I say show animus to all sex-realist views. You did not see any of that as problematic, as suggesting prejudice re views.
KT: Not at the time.

KT: In retrospect - felt i shd concentrate on policy and breaches and so I did in my report.

NC: We see all kinds o fmentions, all thru the report, "underlying views", "transphobic" "worrying views" - runs all through.
KT: I agree report is not clear enough that it's about policy.

NC: I disagree. Report is very clear that it's an inquisition into C's views.
KT: Disagree, and, when it came to my report I was very clear looking at policies and the actual evidence about those and any breaches. Making sure duty to everytone.

NC: Had you had diversity training?
KT: Yes
NC: Did it include freedom of belief?
KT: Yes, some, not at ERCC don't think/
NC: Heard of Forstater?
KT: Yes
NC: Training on it?
KT: No

NC: Did you know at the time sex realist views had been ruled capable of protection in EA?
KT Not at the time, have since
NC: And with hindsight what wd you do differently?
KT: Not sure. Stuck to policies, evidence, being fair to all. Probably nothing different.

NC: End of your WS. Last 4 lines of p30. You say RA maintained she didn't know how wd affect on AB but as employer you felt you had to take action.
NC: That pre-assumes it's OK for s/o to make their sex unmentionable?

KT: That ppl have right to privacy re gender history
NC: Even in rape crisis centre?
KT: Yes

NC: Someone that is so fragile they get upset if it's suggseted SUs might need to know their sex is probbably not well enough to be at work?
KT: Disagree. Was about boundary crossed, AB had said don't discuss.

NC: Can all staff dictate what can be discussed about them?
KT: all have right to say what [missed]
NC: And in RC, SUs may need to be able to ask about sex?
KT: SUs can request all sorts of things in first mtg, to choose right SW.

NC: But in adopting a male-sounding name, AB had created a problem?
KT: Not AB creating the problem.
NC: But choice of name is what generated the SU questions. Gives impression male, some SUs made afraid, so they ask?

KT: AB is not the problem, name choice up to AB. SUs have right to ask Qs about support they will get but that's all sorts of matters, that's why we have the initial meeting, SWs can give details of their identity if they want.

KT: And if SU unhappy about any aspect - not just matters of gender but even if jsut not a good match - can ask for change, so we can meet their needs.

NC: MW says "transphobia exists in our org". Means RA doesn't it. Re upcoming TI training.
KT: No
NC: I accept not named but that it what is meant. I think TI training issue separate. I think issue is RA saying MW fuelled AB upset, but AB was already v upset.

SHOULD READ
NC: I accept not named but that it what is meant.

KT: I think TI training issue separate. I think issue is RA saying MW fuelled AB upset, but AB was already v upset.

NC: RA re return to work - wants assured re accusations of transphobia. You reply, MW and Nico made aware of the appeal outcome. But that is not what RA had asked.
KT: It answers whether MW informed re breach of IT policy.

NC: There were a lot of allegations, talk of transphobic, in the disc process - but nothing found. Reasonable of RA to say, pls tell them no evidence, pls ask not to call me that.
KT: Not sure either had used the particular word, but -

NC: Not what she's asking. Very specific; Tell MW and Nico no evidence found, and to ask them to stop saying it. Reasonable surely?
KT: Disagree reasonable. To say no evidence whatsoever not true. Evidence of conflicting views on that.

KT: To say no one can make accusations again closes down ability of staff to raise concerns if it came up again. So focus in on the policies that were or were not breached by the particular incident.

NC: Right that Elaine Cameron said no evidence?
KT: I didn't have that information at that time

NC: You said telling MW and Nico not to make the accusations wd close down staff raising concerns. I suggest what wd have been closed down is people's ability to police RA thought, and that's why you didnt'.

KT: Disagree, was about looking out for all members of staff, not about policing thought, ppl are free to think what they want but within work must adhere to policies. Remember I am board and not day to day operations.

NC: Wd you agree a CEO must be able to have calm, measured conversations on difficult subjects
KT: Yes
NC: look at this [ref ?email], tell me when you've finished.

NC: Is it fair to say that MW is modelling to AB extreme fragility, re the training coming up.
KT: Disagree
NC: Is it OK for CEO to say not going to something too difficult?
KT: Up to a TW to decide where feels safe, own decision.

NC: Do you think decision to swerve meeting is consistent with need for CEO to have calm rational discussions?
KT: If not going to sthing is what allows calm rational convs to happen then yes.

NC: But this is a deliberate refusal to engage with staff, and encouraging a junior MoS to follow suit. Not consistent with CEO role?
KT: Disagree, that mtg was not only place to have discussion, was talked elsewhere.

NC: When AB asked to be taken off email chain, and demanded not to speak to RA, this is culture of org. No place for difficult conversations.
KT: DIsagree. We have lots of difficult convos, at many levels / many groups.

KT: BUt we are all about supporting mental health - service users, staff, and ppl can set their own boundaries about when and how they engage.

NC: Is it supporting wellbeing to have an environment where the obvious truth that there are 2 sexes and no one can chance is taboo?
KT: Can you repeat

NC: Is an environment where the obivous truth - two sexes, M & F, everyone is one or other, can't change - is a setting where saying that is frightening, conducive to well-being?

KT: I think in this particular situation, sensitive time for AB, to bring that convo to AB at that time, more than once, not sensitive to AB well being

NC: Do you know expression "crybully"? Being so oversensitive that ppl have to be on eggshells around you? We have seen a lot of it in this case?
KT: Disagree. What we see is ppl maintaining their own boundaries.

NC: I think we have seen that MW is in no way fit to be the CEO of a rape crisis centre.

KT: I disagree.

NC: No more Qs
DH: No reexamination.
J: No panel Qs

J: I suggest written submissions from both of you 2 weeks from today, then a week for mutual comments - takes us to Feb 14th?

NC: I'm afraid that timing is hard for me - I would like to ask for oral submissions, given nature of the case.

J: You have absolute right to make oral submissions.
DH: Agree
J: I am away 6/2-4/3 and then training.
NC: Not much free for me till April
J: We will all have to check availability. We will break and discuss timing in private.
[BREAK]

[Judge and panel members have left room to discuss with clerk etc; barristers are in room but sound has been turned off, to discuss their diaries]

[We are back]

J: Miss C what do you have to avoid in April?
NC: [lists]
J: What about 3rd April? We only need one day?
[all agree]
J: Right, 3rd April for submissions; we will wait for findings before considering any remedy hearing.

[ENDS]

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