Thread by @tribunaltweets

Welcome to the final day of evidence in the case of Maria Kelly vs Leonardo UK, at employment tribunal in Edinburgh.

Our Substack page on the case is here tribunaltweets.substack.com/p/kelly-vs-leo…

A reminder that we post what we hear in good faith, but do not provide a verbatim report.

This morning will begin with continuing cross-examination of the witness Andrew R Letton (Vice President People Shared Services, UK at Leonardo Ltd) by the claimant's barrister Naomi Cunningham.

Abbreviations:

J – Employment Judge Michelle Sutherland
P – Panel member sitting with the judge.

C or MK - Maria Kelly, claimant
NC - Naomi Cunningham, barrister for C

R or L - Leonardo UK, respondents
ST - Susanne Tanner, KC, barrister for R

AL - Andrew R Letton (today's first witness, see above)
RR - Rachel Ruxton, Head of Inclusion and diversity at R

GC – Gender critical
GI – Gender identity
GIT - Gender identity theory

SST – Single sex toilets
SSS – Single sex spaces

EA or EQA – Equality Act 2010

SC – Supreme Court

JCC – Joint consultative committee at Leonardo

We expect the hearing to begin at 10.00 am. This is the final day of the present hearing, but it is probable that a future day will be decided today for the barristers to make their oral submissions to the court.

If you would like to see previous cases we have covered, you can do so on our Substack.

It is free to view. If you would like to support our work you can set up a small voluntary subscription which helps with travel etc.tribunaltweets.substack.com

We are still waiting for the hearing to begin; the livestream has not yet started.

[The stream has started, and people are starting to enter the room. The hearing itself will begin when the Judge comes into the room in a few minutes]

[The livestream has shut down again - not sure what is happening]

The Clerk has let us know that there is at present a private case management issue being discussed, and the start of the public part of the hearing is therefore delayed.

[The livestream has restarted - we hope this means the hearing will begin shortly]

J: welcome everyone

NC: Often said by believers in GIT that "TWAW" - are you able to agree with me TW are in fact men
AL: TW I understand are W - for purposes of accessing facilities

NC: Am asking more generally. TW are men that say they are W.
AL: Yes
NC: [missed Q but AL agrees]

NC: Do you agree that if *you* started using the ladies, would not be OK.
AL: Agree
NC: Women colleagues would reasonably experience that as invasion of privacy
AL: Agree

NC: Would not be OK if you put on lipstick. Would not be OK if you put on a skirt and high heels
AL: [seems to be agreeing]
NC: Wd it be OK if you did all those things and then say 'I identify as a woman'?
AL: I would say, yes.

NC: You know perfectly well that you are a man.
AL: Yes
NC: If you did all the things, and then said you identify as a woman, you'd still be a man.
[missed reply]

NC: Your female collegues have no way to see into your feelings. To know whether you are taking the mickey or not.
AL: Complicated question. [missed]

NC: The only difference between YOU using the ladies, and your 'transwoman' colleagues doing so, is that they are somehow genuine in a way you would not be?
AL: [I think, agrees]

NC: [ref]
NC: Please read 2nd para and the penultimate one then I will have Qs

NC: In light of what MK says there, do you accept or do dispute when she says, the practice of letting men use the women's loos has the effect of violating her dignity?

AL: I accept she was upset. We had a very complicated situation to address. So that was why I reached out to offer single occupancy facilities. So that we had policy, practice, in line with the legal advice we had, and to respect all employees.

AL: We tried to address her concerns. And remember MK was the only person to raise this question of privacy and dignity. And anyone else did have concerns, they could use them too.

NC: Can you think why other women might hesitate to bring concerns to you?
AL: Have already said, we have very many lines of possible communication.

NC: You are in a senior company-wide HR role.
AL: Yes
NC: Very senior role, within HR
AL: Yes within HR, people directorate. [expands on HR function]

NC: You have senior role, in HR a long time. You need to keep up to date with current affairs?
AL: Yes
NC: Aware of this debate? Fierceness of it?
AL: Yes

NC: Aware of Maya Forstater?
AL: No
NC: Aware her views ruled toxic in 2019?
AL: No
NC: Not aware of her appeal 2021 overturning that and saying WORIADS?

NC: Not aware of the following batch of cases on the same kind of issue?
AL: Can't be aware of everything, try to keep abreast and keep up, but can't do everything.

NC: Aware that within Leonardo there is a culture of hostility to GC views?
AL: [missed]

J: I wonder if you could expand 'GC belief' to help the witness out?

AL Not aware of culture of hostility

AL: GC belief means, you can't identify as other than your biological sex.
NC: Then I should clarify. It's the acknowledgement that biological sex is real, that humans are male for female, that (if all working properly) one sex gives birth, the other begets young -

NC: - and that sometimes that difference matters for aspects of life.

NC: Self evidently true that there are 2 sexes and sometimes that matters?

AL: Yes I agreer
NC: This has outed you as 'gender critical'

NC: MK has said that [missed] do you agree, violated her dignity
AL: Not aware of that
NC: Can we ask hypothetical then - *if* it happened it would be a violation of her dignity.
AL: Wd be distressing
NC: Can you concede, violation of dignity?
AL: Yes

NC: MK had to choose whether to go nearest loo, or go someone further and more private? Violation of dignity?
AL: [missed - I think, suggested the accessible loo]
NC: OK so she had these three choices. Being put to that choice was a violation of her dignity?
AL: There is a choice, there are facilities, not a violation.

NC: You've accepted that the first thing - finding a man in the loos -

J I think that Q has been asked?
NC You are probably right

NC [ref]
NC: This is R's grounds of resistance. Para 17. Claims the multiple-use female loos are suitable for C and her female colleagues; but C says not, because men allowed to use them.

NC: Suppose the C is right - just supposing - that would mean that the only suitable loos for women are the single-occupancy ones, yes?
AL: Yes it would, but we still maintain that the multiple-use ones are suitable.

NC: It's not true that the multi-use cubicles are fully enclosed?
AL: I believe they count as.
NC: Aware of problems with hidden cameras in women's loos? In the news?
AL: Yes but have not come across.

NC: So until the autumn of 2024 when single-occupancy ones designated, then IF the C is right then the only available facility for her was the accessible toilet?
AL: Yes

NC: And most people prefer not to use accessible, in case someone that actiually needs to use it is kept out as a result? It would be inconsiderate and selfish?
[cannot hear AL replies often]

NC: If you look at the Joint Statement of Facts -

NC: Looking at the situation pre September 2024 - no suitable loo for the claimant on her floor, other than the accessible toilet? This section sets out what existed. Shared loos not suitable, the 'secret' ones but actually shared so not suitable

NC: Then there's the gents - obviously not suitable - and finally the accessible toilet, that's the only one. On her floor.
AL: Yes that's right, that's what there were.

NC: Counting up the single-occupancy ones - there are only 6 in the whole building. Available to everyone, not just the women.
NC: The 'secret' one - 2 cubicles, not designed to be single occupancy.
AL: No, but best option to create single occupancy one.

NC: [ref p432] this is one of the plans -
[J or ST] - I think there are two accessible on each floor, not just one?
NC: Yes that's in joint statement of facts.

[AL is finding the plan]

NC: This is 2nd floor. By autumn of 2024 it was badged single-occupancy, but with a sign telling people to local the outer door after kicking out the wedge, and lock that? Keeping cleaners out for the duration?
AL: Yes

NC: But a woman going to use it, might discover a man in there who had for example not locked the outer door?
AL: My understanding is that the lock was changed to prevent that
NC: I am asking about before that.

AL: We had signs on the door telling people what to do
NC: Do people always obey signs?
AL: We'd hope so

NC: It's common for men not to bother closing cubicle doors though. So a woman might open the outer door and find a man in there already urinating.

NC [ref p495]

NC: Do you agree that the scenario of a woman going into the 2-cubicle facility and finding a man in there urinating is entirely feasible?

J Was this the stairwell toilet?
NC: We don't know, but my point is it's entirely feasible.
AL: Yes

NC: And we all agree that the signage change in 1st floor wasn't until Jan 2025. And even with the locks moved to the inner door, the signage is contradicted by the layout. And you still have the problem of not knowing if anyone is in there.

NC: And so in a way it remains the case that the only suitable toilet is the accessible one.
AL [I think, disagrees]

NC: [ref]
NC: Bottom right corner of the plans. Before Oct 2024 there was a gents with urinals and a cubicle, and a ladies with 2 cubicles. Then after Jan 2025 there is a gents, unchanged, but the ladies now available for both men and women.
AL: Yes that's right.

NC: Previously equal provision for men and women. Now after your changes the men have their own, and the women's is now for both men and women.
AL: We made the change to give MK privacy and dignity.

NC: Why could you not just put in the single-occupancy usage, but keep them women's toilets?
AL: we were trying to provide for any employee, that wanted additional privacy.

NC: What are the other complications you mention?
AL: Well we didn't think it appropriate to ask people to use loos by biological sex.
NC: Doesn't answer why you didn't keep them badged as women only? TW cd use a single occupancy one, without disturbing female colleague privacy?

NC: TW would have the 'validation' of using a loo marked W, but female staff wd have more privacy?
AL: That's a fair comment
NC: But it's not what you chose.

J: [asks re the signage change and checking the number of cubicles] need to understand - ladies rebadged unisex, gents not rebadged?

AL: Not rebadged because it has urinals in it.

NC: [ref p31]
NC: This is part of C's grounds of claim. Points b-g - assertions, generalisations, have you seen before? No? Cd you read them now then.

NC: We can shorten this section of Qs if you are able to say that those are all statements of the obvious. Can you agree?
AL: Would add that their relevance to the workplace - evidence - not about what goes on at our workplace - generalisations - not applicable to our workplace.

NC: Let's take them one by one. Says W are more fearful of M than vice versa. Doesn't say anything about workplaces
AL: Exactly, it can be true and still not be applicable to our workplace.

NC: You say not relevant, but the 4th one - about using the loo - that happens at work. Menstruation happens at work. Women's need for privacy happens at work.
NC you agreed that they are obvious - do you agree that they are true? [I think AL nodded]

NC: Do you any evidence for the tribunal that those generalisations do *not* apply in the workplace, in yours?
AL: We have had no incidents brought to our attention, as I said, we are a secure environment, doesn't change what's true of the general public

NC: True that women might be more fearful of random strangers than colleagues yes, but, W more afraid of M than vice versa still true?
AL: Yes

NC: Looking at workplaces - it's not just known colleagues are present. There could be visiting contractors too.
AL: But they would also be safe people. People on site would be, um.

NC [ref p42]
Paragraph 8. Part of R grounds of resistance.

NC: This is defence of R letting trans-identifying men use the women's loos. Says, treat T employees lawfully. Can we look now at p292

NC: This is outcome letter to MK grievance. Look at these paragraphs down to 'their affirmed gender'

[AL reads]

NC: You quote EHRC code of conduct for services. That is R explanation of 'treating T employees lawfully'?
AL: Yes

NC: You explain R position as compliance with legal and guidance. R was happy to comply with the law as far as it complied with GIT?
AL: It was legal advice and guidance.

NC: You must know by now that SC ruling in April has shown that that advice and guidance was completely wrong?
AL: I know it said sex is biological

NC: It's more than that. It's now clear that SS toilets should be separated by actual sex, not anything else
AL: We took advice -
NC: Please don't tell me the legal advice - privilege.
AL: We took advice and consulted unions, told that it still remains unclear.

NC: You say 'in private sector'. Do you accept then that in the public sector, it would have to be by biological sex?
[missed AL reply]

NC: back to the grounds of resistance. R next aim you state as justifying the policy - you say, treat staff with respect and dignity, according to gender they present. Why cd you not achieve that by offering them single-occupancy facililties?

AL: Well they cd have used the single-occupancy ones too.
NC: Not my point. You cd have given TW respect and dignity by keeping them out of ladies loos and offering single-occupancy instead?

AL: Well we considered that, but TW were already using the ladies, so it wd have been outing them if we changed policy.

NC: Do you know any T staff whose colleagues don't know their sex perfectly well?
AL: [missed]

NC: Let's assume there are some men at Leonardo who have had so much surgery that ppl might actually think they are female. Rare but let's say for sake of argument. Are you saying that it's OK for such a man to be in a ladies loo with his female colleagues not knowing about him?

NC: Isn't that an even greater breach of privacy than having a very obvious man in there?
AL: if a trans man -
NC: We have to clarify this. I am talking about a man here, who identifies as a woman.

AL: I think - borderline - appearance -

NC: Do you accept that quite a lot of women have experience of sexual violence?
AL: Yes
NC: Almost invariably at hands of me
AL: Yes

NC: Those women lead ordinary lives. They are not just in refuges. They are in every workplace
AL: Yes fair to say that

NC: You don't know who those women are.
AL: No
NC: So when you provide a facility that says 'women only' on the door, you are saying this is a female only space, and that will be important for some women. Cd be very important indeed to women with hisotry or sexual trauma.

{Apologies - I really cannot hear hardly anythning of what AL says]

NC: If you are saying that it's OK for a man to be in women's toilets provided they don't know, is that those women can't be sure that there is not a man in those toilets.
AL: Yes I suppose.

NC: Whereas if your policy was that no man - no matter how he identifies, no matter what he believes about himself - your female staff could feel confident.
AL: I suppose.

NC: Now that you think about it. The proportion of your female workforce that do have that expeience of sexual trauma. Your policy is excpetionally cruel to those women?
AL: Yes it could be
NC: thank you

NC: Your stated aim is to have inclusive workplace where all are welcome. Do you still think that your workplace toilet policy is part of achieving that?
AL: We have staff who identify as female. We felt it wd not inclusive to deny access.

NC: You said, !at the time" we thought it was appropriate and lawful - you don't still think so?
AL: Well there has been the judgment. So we are considering about taking action. It is our aim to be lawful

NC: The effect of your current practice is to indulge the wishes of a small number of your male employees at the expense of all your female staff.
AL: No we consider all employees, only one person raised this policy with us, we respected her concerns, found a solution.

AL: There's a long term strategy to provide more facilities, we are looking for a way to have much more single-occupancy.

NC: Can you explain to tribunal, why you can't say to a male employee "you can identify as a woman, you can wear what you like, but you can't use the ladies"?
AL: [Afraid I missed this]

NC: Suppose you still had say a VP dining room. And someone tried to come in. It would be fine to say "sorry you can't come in, this is VPs only". Asking hypothetically.
AL We don't really do that anymore
NC: Parking spaces then?
AL Yes we have those

NC: So if MK parked in a reserved space, it would be fine to say her 'sorry you can't park there'. It woudnl't be disrespectful?
AL: No it would be fine to say no

NC: It's not disrespectful to enforce reality-based rules.
AL: No

NC: I suggest that it is however disrespectful to insist your employees act along with something they know isn't true.
AL: Not disrespectful. But you have to respect the T people.

NC: Not quite my point. It's not respectful to force your staff to pretend to believe something that isn't true.
AL: "Force"?
NC: Your female staff are put in a position where they either have to make a fuss, or pretend not to notice. That's not respectful
AL: No

NC: I think you are agreeing with me? Disrespectful to female staff?
AL:
Yes
NC: Bullying, even?
AL: Um

NC: 4th aim R uses to justify practice - is inclusion of ppl who identify as something other than their sex. I haven't been able to understand this. Could you explain?
AL [is silent]
NC: If neither of us understands it we will move on.
NC: J, I don't know if anyone wants a break?

J: Yes we will take ten minutes. [reminds AL not to discuss case in break]

@threadreaderapp please unroll