Thread by @nickwallis

Good morning from Killymeal House in Belfast. This is the final day of Morrison v Belfast Film Festival. Closing submissions are currently being read by the judge and there will be a hearing at noon for comments on those submissions, questions and clarifications. I will...

NC the 3 July email - its status appears to be in doubt in this claim. SD does not deal with it in his subs. As a matter of fact the 3 July must be dealt with - even if SD persuades you it was not part of C's pleaded case. It's nevertheless of enormous relevance

... it is a set of facts or fact of the most enormous evidential sig. So the reason behind that email being sent is something the tribunal will have to determine. If that email was sent with wholly innocent intent the contention in q would fail. If you find...

... it was a deliberate strategy to call down on the C further complaints and soc med hostility as a reason to disc and ultimately dismiss her - if that's what you find it would be strange not to allow it to be amendment into the pleaded case...

as it meant the R had acted in a way which was "truly heinous and taken deliberate steps to conceal it and lied about it to this tribunal"

NC So with that preface I will make a few specific responses to SD's closing subs. There's quite a lot which is not contentious between the parties and we have dealt with other matters in our submission (sub) so if I don't say anything about it, it doesn't mean I agree with it.

NC Mr Owens was not xe-'d as his witness statement (WS) seemed to be little more than a recital of his initial investigation... we content he was in the hands of R... he took matters no further forward. Similar points could be made re Keara Paterson (KP) - her part was a note taker and applier of her name to docs... info flow to Think People (TP) was in the hands of R who controlled it.

NC it's correct that the discrimination in q may be made out whether the acts complained of were done because of the person doing that act or the perceived belief of the person against who the act was done. At a number of points it became clear that R's own political

... opinion was engaged - particularly in the case of Mark Cousins (MC - BFF director) and also Michele Devlin (MD - BFF CEO), particularly by her wearing of the Trans Inclusional Feminist t-shirt.
NC at par 20 SD points out that MD was initially sympathetic to her...

... this is accepted. It is when the BFF board takes an interest, her concern becomes avoiding blame for not doing anything and siding with the board. She then develops her claim she was too busy. MD's first and sound instinct was to try to damp down the media storm...

... and that is of a piece with her evident irritation with Lucy Baxter for bringing it up.
NC it's not suggested that C was subjected to harassment simply for holding these beliefs. She was allowed to hold them she just had to keep quiet about them.

NC her crime was speaking at the LWS event

NC the alleged comments at the Belfast Exposed of saying "Urgh" when confronted by a TiM or cross-dressing man. If C referred to the person as "it" and expressed disgust - it's wholly unacceptable, and what R appears to fail to do is draw a proper distinction between actual transphobia and actual sex realism, which is "being able to call a man in a dress a man"

NC - but calling a man "it" is "dehumanising" and "unacceptable". R's trans activist supporters will be surprised at the R's position that there was nothing in what C said which merited investigation - if she said it, which she didn't

NC - MD responded "appropriately" to the online fuss in the first instance after LWS, her position changed after the intervention of the board and in particular MC

NC in par 27 SD says it's clear in the response to the 3 July email it's the manner in which C expressed her beliefs not what she said. This is not in R's pleaded case. We still don't know what is wrong with the "manner" in which C spoke at LWS

... and I invited J to explore this with SD. We say it is rather that R acted against C when she had the temerity to express her opinion in public without covering her face so she couldn't be recognised.

[NC now talking about the soc med hostility after 16 April and 3 July and R's case that it might affect BFF's clients, working groups and their audience and willingness to work with them]
NC this point is not a good enough justification for punishing C

... for manifesting a protected belief. The argument it may affect customers or audience or service providers is something which one would hope had gone out of the way in the early days of race relations act. The "it's not us, it's our suppliers" is "just not good enough"

NC R cannot defend a disc claim on the basis C's opinions will affect its client or consumer base.

NC says she wants to discuss something in a break before she finishes speak, but says she'll come back to it.
J do you want a break now?
NC no I'll plough on to the end and come to it after SD's had his say
NC at par 32 SD quotes from the invitation to investigation letter...

NC could we read it - this "and any failure
to support and promote BFF as an inclusive organisation and Service Provider." is a tell that BFF is hostile to sex realism

... and they take the view that because of their inclusivity they can't have someone who manifests sex realist views as their inclusion officer.

NC goes back to the "trans inclusional feminist" t-shirt - which said on the front "an injury to one is an injury to all" - [NC starts reading from SD's written subs].
NC There is a clear indication that the role of inclusion officer is only for people signed up to gender...

... identity theory, but no restriction on the job role that it was only available to those for religious etc reasons has been put forward.
NC R is arguing that MD was fine because she fitted in with the BFF's view, but C was subjected to an investigation...

... when she expressed her sex realist beliefs
NC so when SD says the invite to investigation does not mention gender critical views, it's clear from the terms of the iv

"On 3 July 2023, an email was sent by Michele Devlin, Festival Director, to a variety of LGBTQI+ groups
regarding the Pride on Film Event. A number of responses were received to this email, containing
allegations that a staff member of Belfast Film Festival, Sara Morrison, Inclusion / Audience
Development Co-Ordinator had spoken at a "Posie Parker" rally in Belfast on 16 April 2023."

NC it was just enough that she was at the rally, again -

"Additionally, concern was brought to the attention of the Festival Director by a Board member
concerning a discussion with Sara Morrison at a work-related event on 23 June 2023 regarding her
involvement in the rally.
Concerns have therefore alleged that Sara's involvement in such an event is contrary to the following
specific areas of the role of Inclusion / Audience Development Co-Ordinator "

so it was just her "involvement", here, not what she said.
It would be astonishingly stupid of anyone writing a such a letter post Forstater to spell out that their concern was SM's GC views but R came as close as it could to doing that without doing it in those words

NC SD says the situation was the impact on the R not what C said. This is not true, it's the fact she expressed her views.

NC R tries to advance their claim that it wasn't SM's views on sex and gender but her criticism of women's groups, it might have more weight if the bundle wasn't shot through with concerns about SM speaking at LWS at all

NC SD says it is "implausible" that there was a plan cooked up on 28 June by MD Lisa Barros D'Sa (LB) and Marie-Therese McGivern (MTM). They seem to suggest these usually highly effective people all got together for what they seem to characterise as a hand-wringing session.
I don't shrink from saying that MD and LB at least are "lying" about what took place in that meeting.

NC SD says it is implausible that R would apply to Belfast City Council for an invent it never intended to carry through (Pride on the Big Screen). We say that doesn't matter - whether R either would have or had no intention of doing the event once announcing it is not germane

to the case.
NC R's trans activists will be surprised to learn an immediate suspension on suspicion of gross misconduct for her alleged targeting of a vulnerable film-maker wasn't warranted, unless they thought it wasn't credible. I ask you to infer that they can't have found it credible

[NC is now talking about R's claim that SM was working at the LWS event by dint of her hi viz. Says this is opportunistic. That stewards at the event were wearing blue and anyway SM's contract was plainly not to cover attending an event in a hi viz jacket as MTM accepted]

NC a couple of hours on a Sunday afternoon on a one-off basis is not the intention of that contract and it would be an onerous term if an employer tried to be so oppressive it sought to control someone to such an extent they couldn't help out at a sports club or school for a couple of hours.

NC I noticed SD react when I said it wasn't pleaded - takes J to where it is mentioned and notes it doesn't mention anything about a hi viz jacket

NC there is surprisingly little evidence on date or decision-makers who decided on the iv into SM - we say it pre-dated the evidence-gathering
NC SD says the iv was started by the comments about women's groups - this is not borne out by the doc evidence - it is that she attended

NC the LWS event and because of that "she either was or was perceived to be transphobic"

NC the organisation (BBF) appears wholly unable to draw a distinction between transphobia and sex realism

NC the SSP issue is one of a number of matters which would not land a claim, but in respect of the other ways the R treated C and in response to each other too - keys, taking C off shared drive, putting her on SSP - all of those capable of an innocent expl but taken together

... incl no steps towards OH referral evince a settled view that SM was no longer part of the org and did not need to be treated like a normal employee. These relatively small acts of exclusion combine to suggest SM was being pushed out.

NC C was put on to SSP because she was no longer seen as a valued employee. If they valued her they would not do this nor would they take so long before referring her to OH.
NC turns to what SD calls the "foolish error" of failing to send C her work password.

[sorry that was MD failing to send C her password]
NC on the same day MD sent the password to the wrong email account, she made sure the TP person - Bethany O'Neill - sent her message to SM's gmail account. The clear explanation is that MD was deliberately deprving SM from access

... to her work email as "part of the process of shutting her out"
it is particularly dismaying that MD says after putting SM's email password into a bundle as part of her SAR response and then when she finally sent the password in November, telling SM she had already sent it to her in July and October.
"that is the sort of behaviour that is commonly referred to as gaslighting - telling people lies" and indicating that it was their fault when something goes wrong. to do that to an employee who was off sick with mental health issues was a shockingly cynical and cruel thing for Ms Devlin to do and her evidence on this point was particularly unsatisfying

NC Gender Identity Theory is novel and so counter-factual it can only be sustained by shaming and silence - you can call on your own experience and knowledge that sex realism and gender critical belief - if there had been an age old discussion about whether men can become...

... women and women can become men just by saying so, there would be a history of that discussion going back decades. There isn't.

[NC ends - some disco about when to reconvene. SD says he has quite a bit to say and with qs and responses we could be going through till 4pm. Decision made to break for lunch back at 2pm]

[and there was me thinking it would be an early finish!]

The written submissions are now available to be inspected by the public. Here are the results of a v quick and incomplete skim through. Respondents first:

"The present case is not about the correctness or otherwise of gender critical or sex realist views. It is not about whether transwoman should be allowed to compete in female sports. These are matters the Tribunal does not have to make a determination upon."

"Despite the clear desire of the Claimant to make the case about such matters... this is a relatively straightforward case and relates to whether or not an employer is entitled to investigate in circumstances where it is receiving complaints relating to an employee."

"17. It is also at this stage important to note Ms Devlin was clear that she was aware of the claimant’s views around transgenderism prior to the left woman speak about [presume that's meant to be "the Let Women Speak event"]. Given that these views appear to be of central importance to the claimant it is unsurprising that her work colleagues would be aware of those views. There is no evidence that at any time in the past there was any suggestion that the claimant would be investigated or disciplined because of her views in this area. Ms Devlin did say that she intended to raise the claimant’s comments at Belfast Exposed and outside a pub at her supervision but that again shows that those types of views were not something that were a cause for any investigation. The panel is therefore entitled to conclude that there was no rush on the part of Ms Devlin to investigate as soon as she saw the LWS speech. It is submitted this would be a fair but important conclusion as it will assist the Tribunal in making a conclusion as to what operated on the mind of Ms Devlin when she decided to initiate an investigation."

"27. The response to the 3 July 2023 email from Outburst arts can be seen at 207. It is clear from this that the in the eyes of that organisation the manner in which the claimant had manifest her political opinion was divisive and lead them to not want to work with the claimant. The email stated that it “feels deeply inappropriate” to receive an email that the claimant is copied into.

28. The Queerspace response is at 221. The Tribunal would be entitled to infer that that email again flags up an unwillingness to work with the Claimant and as a consequence, damage to the Respondent both in terms of its reputation and its ability to deliver work with partner organisations."

"... the Tribunal would be entitled to conclude that emails from Mark Cousins were operating on Ms Devlins mind when she decided to have an investigation. At 303 the email from Mr Cousins of 25 May makes clear that he has an issue with the organiser of the LWS event. He also states the Respondent can’t control the thoughts of staff. This shows it is the manner that the claimant manifested her views that was of concern and not the views themselves."

"Ms Devlin was clear that it was the impact on the organisation as a consequence of how the claimant manifested her views that was rationale for the investigation. In particular she was concerned about the criticism of partner organisations."

"The Respondent has properly accepted that a belief that biological sex is materially real and not be conflated with self-identified gender is a relevant political opinion. However, there is a further issue as to whether or not the extracts of the Claimant’s speech that caused the Respondent concern, that being criticism of woman’s groups for being a ‘racket’, is a political opinion. If it is not then the entire discrimination case must fail."

"In respect of the initiation of the investigation, it is important that the Tribunal considers who made that decision and their mental processes. Whilst the board were supportive of an application it is clear that it was an operational decision and would have been a matter for Ms Devlin. Even if it was a joint decision by Ms Devlin, Ms Barros D’Sa and Ms McGivern it is clear from the evidence of all that it was the comments about woman’s groups and the damage to the respondent that caused them to agree to or be supportive of an investigation. The decision to investigate was not therefore an act of discrimination."

"The Tribunal can conclude that the respondent is a small organisation. Whilst larger organisations may have clear policies around referring to OH the industrial jury is entitled to take note of the fact that smaller organisations tend not to have such policies. When standing back and focusing on the evidence as a whole, it is clear that not referring the Claimant to OH until December 2023 was not an act of discrimination. The Claimant has not proved facts to pass the burden but even if she had, in light of the foregoing, this particular of discrimination must fail."

"In relation to the email Ms Devlin admits she made a foolish error in sending the password to the Claimant’s work email. A new password was sent in November. There is no evidence that Ms Devlin was seeking to restrict access for discriminatory reasons. The Claimant was also off sick and so didn’t have any need to access emails which undermines the suggestion that Ms Devlin would seek to restrict access for a discriminatory reason."

"The Claimant accepted both the grievance and grievance appeal were thorough. They were not a whitewash. There is no suggestion that either the grievance or appeal failed to consider relevant evidence or question a relevant witness. Ms Owens’ evidence was not challenged. In short there was a grievance process properly conducted. In light of the decision in Kaur, the claim of constructive dismissal must fail as the last straw that caused the claimant to resign was the appeal outcome. Nothing about that appeal or its outcome constitutes a last straw."

So that's a necessarily incomplete canter through R's written subs.
Court is sitting - will try to get the C's subs out after this hearing.

NC is speaking she has three more issues she wants to mention: 1 it would be harsh in the extreme to penalise an employee - the Grievance Appeal Outcome was a perfectly reasonable "last straw" and our decision not to xe doesn't affect that.

2. if you think the 3 July email was a deliberate ruse then its hard to avoid aggravated damages
3. there was inordinate delay in the grievance process and the appeal - some small parts of that were C's unavailability and discussion and the most sig delay comes after the end of the process and there's no excuse for that

SD starts with an apology for his bad par numbering and typos as it was a tight turnaround time
J thought that was the case - wasn't go to draw attn to it
SD says there is no case for aggravated damages as it's a duplication of a different side of the damages claim

SD the delay to the grievance outcome was legitimate as it was a very complex case
SD - as per Mark Cousins (MC) SM had become "dirty by association" in sharing a stage with those she did at LWS - she's also prima facie in breach of contract and the way she manifested her beliefs, and that she criticised women's groups who have partnered with the respondent as "a racket"

SD takes J to Page (appellant) v NHS Trust Development Authority (respondent) [2021] "In the context of the protected characteristic of religion or belief the EAT case-law has recognised a distinction between (1) the case where the reason is the fact that the claimant holds and/or manifests the protected belief, and (2) the case where the reason is that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In the latter case it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of."

SD goes to Higgs "However, if the dismissal is motivated not simply by the expression of
the belief itself (or third parties’ reaction to it) but by something
objectionable in the way in which it was expressed, determined objectively,
then the effect of the decision in Page v NHS Trust Development Authority is
that the dismissal will be lawful if, but only if, the employer shows that it
was a proportionate response to the objectionable feature"

There was no dismissal in this case. Hadn't got close. It was an investigation (iv) and that is a neutral act.

It might have exonerated C.

SD goes to NC's claim that the word "inclusive" was a tell in the invite to investigation. That was not a reference to the fact R is a "cold house" for sex realist views. It is about R being an inclusive org. "MC in his evidence was v clear that the festival is a broad church

... he was v clear that whilst he disagreed with C's opinions, she was nonetheless entitled to hold them."

Indeed when NC suggested that MC was trying to move SM out of the organisation by reporting he wanted to "accelerate the process" that was a "jaw-dropping moment". None of the R witnesses ever expressed any intent that C was not entitled to hold her views. and when you come to the way the C resigned, for example Dr McKeown was v clear that people who hold diametrically opposed opinions can still work with each other. We had an unexpected appearance this week from Sarah Palin. She was John McCain's running mate in 2007. McCain and Obama did not agree on much, bu McCain still asked Obama to deliver the eulogy at his funeral. You can disagree and still deal with people respectfully.
Was it R who forced C out because they didn't like her opinions, or was it C who voluntarily chose to resign because she didn't like R's opinions.

SD It is not a proper comparator saying MD appearing in a Sinn Fein video - she got board approval to do so. So she cannot be a comparator - her circs were materially different. So - what is a hypothetical comparator - it has to be somebody who in their private time...

... "publicly speaks at a rally, having some kind of role at that rally without board approval and expresses that political opinion in a way which causes the employer to receive complaints and causes individuals to q the rep of the employer"

"Now, most if not all R W's said that if anyone expressed any view which caused blowback for the org, then there would be an iv. MD said she would be iv'd in those circs."

Dr McKeown gave an example where he could expect to be investigated if he were to speak an event attend by people who might get him "dirty by association".
"What else is an employer supposed to do?... What else was the Film Festival supposed to do."

SD takes the grievance interview with MD from 15 3 2024 where she is asked:
Why did you take the dec to iv Sara?
She replies "After that happened, I watched the video after checking she was OK, I watched the bit she
said, and I was surprised, the groups Sara listed in the public forum they are all user groups
that we partner with, we have worked with them previously, and I was shocked. She was
basically in elegant way calling them fraudulent. We work with them.
Her role as an inclusion officer, I was in total shock. We work with them."

This was before any court case - that is her clear answer.
SD R accepts C's sex-realist views are political opinion - but if you find that calling women's groups "a racket" is not a political opinion then this case must fail.

SD goes back to NC's point about the filmmaker's allegation against SM - that R didn't believe the complaint was real. R had no view of that. That's why it was being investigated. NC said SM would be suspended. Well - R is a tiny org. Do smaller employers tend to suspend?

What would it achieve? Sus is not a neutral act - after that most people are usually out the door. the fact SM was not suspended should be to R's credit.

Re hi viz - claimant conceded under xe that she had some role at the event.
SD it's been suggested that the contract of employment is some opportunistic [?] by R

"Secondary employment: You shall not without the express permission of management engage in any paid or
unpaid activity which may directly conflict with the business interests of the employer or
its members or which may interfere with your normal work."
ANY - note any

On its face the C had committed a breach of that contract which merited iv. Now the iv may have agreed with C's interpretation - that the contract was not aimed at that kind of work. But the employer must be allowed to iv

Goes to R's written response: "Whilst Ms Paterson accepted that the Claimant attended this event in a personal
capacity, she found that the Claimant did not inform the Respondent that she was
intending on speaking at this event, despite the public controversy that surrounded
the same. Furthermore, within the Claimant’s contract of employment, it states that...the employee, “shall not without the express permission of management engage in
any paid or unpaid activity which may directly conflict with the business interest of the
employer or its member which may interfere with your normal work.”

SD This has always been part of our case.

SD the decision to iv was an operational one made by MD and the board was clear about that. LB and MTM were supportive, but it was MD's decision to make.

SD takes court to MD's response to C's resignation letter: "Dear Sara
It was with great regret that I read your resignation email.
The narrative on social media and in various correspondences from you from the
very start made so many misconceived assumptions about myself and Belfast Film
Festival.
We made a neutral request for an investigation into complaints we received. This
investigation never took place because you initiated an internal grievance
process, quickly followed by an external legal process. The investigation was
thwarted by the fact these two processes had to be dealt with first. I would like to
make it clear that the investigation was not a "misconduct investigation", it was
intended to be a neutral, fact-finding process, as is our right as an employer
where complaints are received.
In addition to the damage to the reputation of our organisation, your colleagues
and I have suffered greatly from stress, ill-health and hurt throughout this entire
process. It has been the most difficult 16 months of my entire life.
I wish you and your family well and hope you find satisfaction in whatever
direction your life and career go next.
With warm regards
Michele
Michele Devlin"

SD there is a claim on C's side there is hostiliy - it is unfortunately "regrettable and sad" and R's position is SM was "good and her job... she was liked." "She jumped when she didn't have to."

SD C suggests R doesn't understand diff between transphobia and sex realist views and that it doesn't act on transphobic views. R disapproves of transphobic views. The failure to act was not approval of transphobia, nor that it didn't happen. It is a tiny org.

SD it acted on C's action because it got criticism and complaint "the crucial difference is the way in which C manifested her pol opinion led to blow back. That is why there was an investigation - that is not discrimination."

SD C was not removed from the BFF programme. She was never put on it in the first place - because she didn't work on it because she was off sick. That is not an act of discrimination.

SD explaining chron of MD sending email password on 25 July, the message to Bethany O'Neill re sending invite to SM's gmail account and why it happened the way MD said it did.

SD points out it is accepted Emmett Owens work as leading the grievance appeal was his own - he was not xe'd. There was nothing about the grievance appeal process which could account for a "last straw"

If there was a complaint about any unfairness in the GA then it should have been properly put to EO in xe. He was not xe'd. There was nothing wrong with the GA. So the unfair dismissal claim must fail.

SD claims MC's email is an act of harassment. Reads from the email : "Hi Marie-Therese, Lisa and Michele
I'm back home after a great time in Docs Ireland. I think it was the best year
wet - more international etc. Thank vou.
On Friday night, in a bar, our staff member Sara Morrison raised the subject
to me of her speech at the trans rally. She said that she knew that Michele
had talked to me, that she is standing up for the rights of women, that she's
"not anti anything" and told me that it's about her son.
I told her that this was not the right time to discuss it - we were surrounded
by festival guests.
I found the whole thing troubling for several reasons. (1) There seemed to
be the suggestion that Michele of spreading false information; I told Sara
that I had heard reports of her speech from several sources including other
board members. (2) There was no hint of regret for, or doubt about, what
she did. As you'll know "I'm standing up for the rights of women" is the
argument used by conservatives and religious people in several countries,
and a new staple of the anti-LGBTQanti-lslamic right. (3) If I remember
correctly, her child is a trans woman, so she is misgendering her here (I might
be wrong about that).
If Sara is saying this to me - a board member, vocal supporter of trans rights
and friend of Michele - I think it's possible to imagine that she is being less
careful elsewhere.
I therefore feel that we need to accelerate the process by which this is
sorted, if possible. Michele, as you know, on Friday I'm supposed to present
with you our pitch for the big Hearth project. Sara's is named as part of the
team for that project. I think her name should be removed pending the
resolution of this. We can't have an inclusion/diversity officer who, many
weeks after making such an ill-advised speech, is still standing by her actions
completely.
Sorry to bother yous with this.
Markx"

SD that is not an act of harassment - nor is it about political beliefs. It is a concerned board member sending an email. It wasn't even seen by SM until discovery.
SD "fatal flaw in the C's case is that an org must be entitled to iv when there is damage or suspected damage to the rep of the org" and breach of contract - the org must be allowed to iv "What else was the FF supposed to do?"

[SD ends]
[NC says she has a short response. There are no q's from the J]
NC just a very short point but quite important on the suggestion by SD that the complaint about the crit of the women's sector orgs preceded the ET complaint, but the first grounds of claim in Oct 2023...

... MD's evidence was given on 15 March 2024 so the iv interview appearance post-dated grounds of claim and grounds of resistance.
J there's certainly a lot of info that's been presented over the last two weeks. I'm aware its a v emotive issue it is for everyone in the room

... and for that reason we will be "I intend to take a lot of time to go over it... do not expect a decision from me before xmas". the time allocated to me will be down to the President and how much she can afford me. We are v short staffed here. Just want to thank both parties..

... the amount of prep that has gone into both parties submissions and the volume of info put before us has not gone unnoticed.

"We'll get the decision out as soon as we can."

[hearing ends]

Okay that's that. I'll try to get the newsletter out before i catch my flight tonight. If you want to want to join the mailing list for any stuff I put out on sex and gender, please consider a small donation.

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Okay just hoovered up the departure photos and now am going to head to the airport. Thank you to everyone who kindly donated, took the time to email, tweet, comment and share. I'll try to get the newsletter out before my flight is called. V best. N

🧵ends

@threadreaderapp unroll pls