Thread by @tribunaltweets

Welcome to the final day's PM session of the employment tribunal of Maria Kelly v Leonardo UK (L). We hope to resume at 2.05

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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 resume.

NC - turn please to p 72. HAve you read that letter before.
AL I believe so
NC - read again?
AL - [missed}

[AL reading document several minutes]
NC - [missed poor sound]
NC - in a nutshell it acknow that L has been given certain advice that is contrary to law.
In that context it makes the unconventional suggestion, that given L would want to keep temp low. But it wasnt stupid sugg

NC - as it turned out the C hasn't need to crowdfund. And until now no press at all
AL
NC there has been complete silence from C
AL yes
NC - you may not know but she has not mentioned during the hearing.

NC - she was keen not to make personal, it is the policy not the indiv
Is that fair minded?
AL yes. [sound poor apologies]
NC she has been at pains not to make personal
AL yes
NC - she is doing best to be a civilized dispute
Turn to p75 for response from counsel

NC - please read and let me know when you are done.
[pause for AL to read]

NC - that is a hostile response isn't it?
AL um i can only say that i hasn't taken part...and can only assume read in context...there was concern issues associated
NC - nothing in the C letter that she had no intention to name.
AL - [can't hear]

NC response a threat of discp action...the last para p75 'implied threat...' and the next para about reputational damage. Next para 'appropriate action'

Conveys impressoin that if she has to crowd fund and what she fears from that may happen (names public) she may be subject to disp action
AL - again sound poor
NC - can you see how she may fear from her job

AL - [missed]
NC - she said if I have to crowd fund...then have to generate interest. Do you feel this is perfectly legitimate

She has said she may have to do this thing, if I have to do this thing, there are certain conseq that will inev flow and further consequences that it may draw in attenion. She is making a prediction, not a threat.

AL - I am not the author of this.
NC - 'if what you fear what happens, does happen we may need to take dis action. That's pretty threatening isn't it.
NC asks AL to read p77
apologies for lack of AL replies, the mic sound is unclear and I don't want to mis-quote

Paused for AL to read p77

NC -so that points out that the threats amounted to victimisation but says won't add victimisation to the claim.
NC - p80 on L behalf, please read

NC - this is a softer tone isn't it, and true to her word she didn't add vict claim. Also true isn't it that she considers she has been badly treated because of GC belief, she has kept this claim to the point of principle -
AL - yes
NC - in the course of your career you

..can you agree this is unusually co-operative case
AL the conduct of this one....[muffled, again]
NC -turn to bundle

sorry it's 285 over the page part of the exch early Feb 24. Look at the email bottom 224/225 15April, it says 'should be recognised...as employers the law should be our guiding principle'
Do you agree with that?
AL Yes in principle that would be my view

NC - you sound hesitant
AL - no no
NC - p407 the questionnaire in the aftermath of Supreme Court For Women Scot.

NC - after the intro, it sets out questions that it's important to capture your understanding.
Do you have any view on how it should be enforced (quotes from questionnaire).
So it seems that L thought fit to ask it's pred male workforce, 'what do you think this means...

..should we do what it says'
AL - talks about unions, all employees of company have participated in the survey [again muffled]
NC - do you usally use a vox pop? Is that a normal way to procede?
AL - this situation very sensitive

AL - therefore as part of our approach...we felt only right to support the consultation.
NC - p408. ONe of the q was 'Established policies regarding bullying, harrassment...' Do you know who to contact
can you help the tribunal what kind of harassment is envisaged?

AL - staff expressed concerns about judgement and wanted to have a support. To ensure all the nec support mechanisms in place
NC - can you make answer concrete please? What would be harrasment

AL - not sure of any specifics. [again muffled/unclear]
NC - I will try one more time and then leave it. [reads from q] It envisages there might be harrassment
AL - it was a general view
NC - I will suggest to you it is obvious what harass is envisaged here

NC - It's envisaged women and single sex toilets isn't it
It is one of the possibilitiesthat sits behind that. I want to suggest to you that the message in this question, is that we have back of TIM 'we have your back
AL - disagree

NC - given that message - if you stand your ground about single sex spaces, they may be discp for harassment, That's deliberate.
AL - disagree

NC can you talk about what might happen next if C goes to the toilet and finds a TIM there after SC judgement, 'this is a women's space'

I don't see that

NC -you say you have been following law but you must have known since April SC ruling, you must have known
AL - [muffled] we are consulting with TUs in terms of how we deal with this and commitment to wait and see....
NC so not making decision straight away
AL managing the situation until we are sure what we are doing isn't knee jerk

NC you do understand a code of practice isn't the law
so if once you finally understood the guidance and that means women only spaces reserved for women, that means you are breaking the law not only since April but when it became law.
AL [muffled]
NC p509 from C Morris

...29 April so very soon after SC judgement.

Pause to read

NC - CM says concern for feelings of men, but not feelings of women whose privacy has been invaded.
It's here isn't it, that he understands the legal position that single sex is the legal position
Last para 509 - he thinks obvious solution single sex in every workplace,
AL talks about facilities - something to be considered.

NC - Unites position is that single sex should be accessible on self ID. And women to use single occupancy
From discussion with Unite I dont think that is true
[talks about his relationship with Unite.

NC their solution is forcing any women to be seen as noncompliant terfs
AL - what
NC you are telling me you don't know what terf means?
[explains to AL]
AL - I haven't heard this

NC - turn to p512.
[pause to read]
NC - starts 511. from the union to unite members.
Look at bottom p512 SC Judgement
That para - woman = bio sex, lots of concern about trans and nb people we are working with these colleagues, members getting in contact'

NC - that demonstrates v clearly Unites hostility and determination to find ways around it
AL I can say we have had extensive discussions.
[muffled mic]
NC - turn p615 please.

NC - sorry 614.
[Pause to read]
it is even more clear in first para, 'judgement is a serious threat' even more clear how hostile Unite's position is
AL -they are members to represent however they wish to do that is entirely up to them

NC - you say it has to be balanced but this is a judgement from the highest court in the land, the law as it always has been. You could have said that
AL we want to have a balanced situation. [more muffled]
AC the truth is that you are well aware that you will face outrage if you decide to obey the law. The truth is that you are defending this case becasue you want to blame someone else for the decision

AL no I am not, have to defend every case

NC are you saying it because you think it's legally defensible?
AL - we had ground to defend. [again more that's impossible for me to hear]
we are in a position to defend, maybe views have changed that....[again muffled

NC I want to suggest that you couild have taken sensible advice, you got it wrong and commicated this to the staff and use toilets for their sex, that's what you should have done
AL - that is your opinion. My opinion is that we have an obligation
NC = you should have faced down objections and told staff you have to obey the law.
AL - that's your view

NC and ultimately you are defending this claim so you can say 'it's not our decison, it's the employment judge and this is a cowardly way for your company and you personally to behave. That's bad enough, judges have to make unpopular decisions. The other person you are deflecting to is the C.
AL I am trying to find solutions.

NC she has to go back to work next week
AL
And she has to face her trans ID work colleagues, the ones she has been at pains not to blame she has to face them
AL yes
NC she has been universally outed at the women how made the claim

AL we will manage the relationship when C comes back to work
NC you say she followed a cause. But if you had followed the law this wouldn't have met the news cycle.

NC it is inevitable now that trans activists will be stirring up trouble against C
AL up to this I was unaware of this
NC she will be seen as a terf
AL [muffled]
NC the effect of your contact is to put a target on C's back

AL we are you know we are not adverse to making change we just wanted to be sure
NC and in doing that you have acted recklessly with a long serving employee. This is despicable isn't it
AL - stutters...[disagrees]

J - discussion - wants to confirm wording in the operational note.
Discussion about wording in bundle

25 Sept - note. Wording. Needs confirmation - reporting evidence of text based. Mustn't access text based communication.

J Just a reminder to tell the truth, what I want to confirm haven't read text communications
In so far as you are aware - in Edinburgh - has a transwoman employee asked to use female bathroom
AL not to my knowledge
What about other offices?
AL not that I believe

When did you become aware that a TW was using a female bathroom in Edinburgh>?
AL around time just before grievance.
What about other offices? A point when men id as women using bathrooms badged as f
AL my recollection based on requests [muffled again]

What I am asking to be clear - when did you become aware
AL - I haven't

Who does RR report to
AL - Nerys [Thomas?]

Request for 5 minutes break
Judge - all happy to come back then?

Break

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