Thread by @tribunaltweets

Good afternoon.
This is Day 4, pm session #1 of Toshack vs GeoAmey Ltd, from the Edinburgh Employment Tribunal. We expect to start at 12.50 pm.

Mr Toshack (DT) asserts that he was dismissed because of his gender critical beliefs. His appeal against his dismissal was subsequently upheld. He is claiming harassment, discrimination and indirect discrimination on the grounds of his gender critical beliefs.

Our Substack with background on the case, and reporting threads from earlier days of the tribunal can be found here: tribunaltweets.substack.com/p/toshack-vs-g…

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@tribunaltweets2 Abbreviations:
DT/C - David Toshack, claimant
DH - David Hay, KC, for claimant
MG - Margaret Gribbon, solicitor for claimant
GA/R - GeoAmey Ltd, respondent, a British company specialising in prisoner transport
MM - Michael McLauglin, advocate for Rs.

@tribunaltweets2 J - Employment Judge Amanda Jones, sitting alone
ITC - initial training course
CH - Chris Hutton, course trainer
SH - Sarah Harvey, course trainer
SW - Stephan Weir, trainee with DT
FSU - Free speech union
PP - preferred pronouns
PER - Person escort record

@tribunaltweets2 SOP - Standards of practice
PCO - Prison custody officer
BITWB - born in the wrong body
GRC - Gender recognition certificate
GC - Gender critical or sex realist beliefs
GI - Gender identity
TG - Transgender
TW - Transwoman, a male who identifies as a woman

@tribunaltweets2 TM- Transman, a female who identifies as a man
TP - Trans identifying people
DEI - Diversity, equity and inclusion
SPS - Scottish Prison Service
ITC - Introductory Training Course
AGP - Autogynephilia/ Autogynephile
UB - Unconscious Bias

@tribunaltweets2 People are returning to the room.

The sound has not been good so far today, but we will do our best.

@tribunaltweets2 David Hay for the claimant, cross examining Chris Hutton for the respondent.

DH Good afternoon Mr Hutton. Some general qs. You are an experienced trainer. Miss Harvey operates in a different unit, but evidence was about same level of seniority as you.
CH I report to training

@tribunaltweets2 CH manager. Sarah reports to a different manager.
DH Suggest that GC view is that individual cannot change sex born, and born as one or other. You understand.
CH yes
DH So when DT refs to GC beliefs to you, you understood those
CH yes
DH And views did not come as surprise to you

@tribunaltweets2 DH as DT had expressed views earlier in training
CH Not exactly, no.
DH DT views around searching. During course there were slides about that and a discussion with DT expressing views that M is man and w is woman
CH yes
DH Not saying DT used term GC but expressed those views

@tribunaltweets2 CH yes
DH And if you had issue with way DT expressed himself during course you had chance to raise this with him. In interviews for eg
CH yes
DH And you also remember DT when expressing view making connection with his religious belief
CH yes
DH Mentioned Christianity?
CH no

@tribunaltweets2 DH Good discussion had. You made ref to fact training course was safe space and ppl should be able to say what was on their minds
CH yes
DH You are experienced trainer on course
CH So staff can open up and discuss
DH Safe space - encourage staff to be open about matters on their

@tribunaltweets2 minds
CH Depends on what subject
DH Open, trust - helps towards resolution if needed
CH Yes
DH Your ref to particular TP
CH Yes
DH Consistent with your practice to give examples
CH Yes
DH You don't remember the ref to her testicles
CH Didn't say anything like that at all

DH People remember
CH Didn't say
DH Discussion - DT introduced discussion about ??
CH no
DH Perhaps that was meeting when DT expanded his GC views. You say it was earlier stage in course. Day 1?
CH Day 2 or 3
DH That early?
CH Yes
DH Re interview sheets. You did at least two
CH yes

@tribunaltweets2 DH No issue recorded by you re DT on course
CH no
DH Re DT said to be a nightmare?
CH I had no enounters with DT like that
DH Do you remember refs to Tiffany Scott?
CH No. You'd have to tell me which session that was
DH On second occasion DT said you changed use of PP from she

@tribunaltweets2 to he re Tiffany Scott.
CH No. You'd have to tell me which session that was.
DH Poss you would make that change of PP
CH No. I wouldn't. No professional.
DH Sure?
CH Yes
DH Miss Harvey and Miss Pollock - information conveyed to you. We have heard evidence in this case that a

@tribunaltweets2 view was taken re DT very soon after incident with DT.
CH Yes
DH Here is says after c 15 minutes in total. When SH talking to you and Miss Pollock couldn't be more than c 10 mins.
CH Can't say.
DH DT remembers canteen meeting wasn't long
CH Possibly. Can't tell.
DH How long

@tribunaltweets2 between Miss Harvey talking to you and DT into room.
CH Don't know
DH Matter of minutes.
CH More than that - would need to find available room and find someone to take notes etc. More time that a matter of minutes but don't know how long.
DH Did you undertake any form of

@tribunaltweets2 disciplinary in the past
CH yes
DH as a manager
CH yes
DH We know DT was still on probation period. Contract says a week's notice as probationer. Would you know c DT's employment rights?
CH no
DH This meeting with DT looks like a disciplinary meeting. Fair comment?
CH no

@tribunaltweets2 DH Even though fired at end of it.
CH No. Fact finding. DT problems with course - seemed unusual to me.
DH Potentially q serious. Actually serious as DT fired
CH Not necessarily, fact finding could be c anything.
DH But serious enough to want note taking
CH yes

@tribunaltweets2 DH Meeting has serious consequences for DT
CH Yes
DH Miss Pollock's notes. Signed off, though no sig at bottom. You saw these
CH Yes
DH Happy with it?
CH Yes
DH [to bundle] Number of issues raised in discussion. Starts with why DT called to mtg - referring to person by

@tribunaltweets2 DH different pronoun. Discussion re policy and law. Reference to searching - you were testing internal consistency of DT approach.
CH yes to all above
DH DT remembered mtg lasting c 20 mins
CH Couldn't tell you - could be 20 mins.
DH Discussion in mtg. We have your letter

@tribunaltweets2 DH on p 578. In letter seems operative reason terminating DT because not fulfilling operational needs to deal with TP in our care with ref to EA etc.
DH Letter boils down to DT's use of PER form
CH Don't understand.
DH What you said in letter - DT not complying with

@tribunaltweets2 legislation, SOP..
CH [re DT searching males/females q]
DH DT said happy to search TP. SPS and GA procedures - DT would only be expected to search prisoners who id as male, so DT wouldn't be expected to search F who id as F
CH Yes
DH We are left with how this is being recorded

@tribunaltweets2 DH DT said would treat with respect
CH But wouldn't use ID name
DH Crux of matter for dismissing DT - re letter - is what was going to be put into PER form
CH No. About how he was going to treat person in custody as well.
DH DT re what he was going to call a TP.

@tribunaltweets2 DH DT wouldn't call a man a woman, talking c pronouns there
CH could be
DH ?
CH I have a good recollection
DH DT trying to find a workaround.
CH He can't.
DH DT said could use neutral pronouns - is one way of doing it.
CH No it's not

@tribunaltweets2 DH Step away from policy for one moment. In ordinary communication, writing they/them.
CH In outside world yes. But in prison service use PP - respectful. If that's how they ID that's the way we'll put them.
DH If DT says i don't believe person to be a woman, instead

@tribunaltweets2 of calling them a man will use non-gendered term which will do less harm.
CH Not necessarily
DH Discussion moved to DT asking to use non-gendered pronouns/name. Is that possible
CH No
DH DT trying to find compromise
CH He possibly could have been

@tribunaltweets2 DH DT to use name. DT trying to find mutually agreeable alternative
CH He can't use them/they. Ppl fight all their lives to ID.
DH That may be your position personally. And the position you have made on behalf of R. But this is DT trying to find mutually agreeable resolution

@tribunaltweets2 CH yes, but he can't.
DH It would be potentially v offensive to a TP
CH Yes
[missed]
DH So should have been made much more clear?
CH No
DH DT trying to identify solution.
CH Solutions weren't correct. Not a solution.
DH Your position is can only use PP of t prisoner.
CH Correct

@tribunaltweets2 DH DT expression is consistent with what noted in mtg. Basis of DT objection is he thought it a lie, the use of a TP chosen pronoun
CH Why would it be a lie
DH Just asking what DT said in meeting. Clear that's what DT said in mtg?
CH Yes
DH DT having to lie c what he saw as true

@tribunaltweets2 DH identity of t prisoner
CH Not a lie
DH DT said it was a lie
CH That's his opinion
DH DT said there is a basis for his view of m is m and can't change. Did you understand that. Article 10.
CH [didn't know ref]
DH Have you heard of HR Act.

@tribunaltweets2 CH Yes
DH You made not connection of Art 10 to HRights Act
CH No
DH When were you last trained re EA
CH Can't remember
DH Understand c protected characyeristics
CH yes
DH Aware ender reassignment is PC
CH yes
DH And that so is religion/belief
CH

@tribunaltweets2 CH Yes
DH And that individuals with GC beliefs are protected
CH Not aware
DH So if you weren't aware at the time, even though DT mentioned Art 10. But general protection
CH No one was dismissing his belief
DH You knew religious belief was a PC
CH Yes
DH No qs c where balance

@tribunaltweets2 struck.
CH
DH Only advice you would have had would have been from m Pollock - HR. MP not a lawyer
CH Don't know if she was a lawyer
DH Was MP giving you any information c PCs
CH No
[MP- SP - Sarah Pollock]
DH Should you have established legal position before dismissing DT

@tribunaltweets2 CH Possibly yes
DH Did you take any other advice. Just you and SP?
CH Yes
[Sorry - Susan Pollock I think]
DH [to PER form] Every individual who comes to court -section 2 would have been filled out already
CH Yes
DH [Goes over form.] DT would not be expected to alter

@tribunaltweets2 DH If they have previously appeared on remand or whatever, they may be a need for info to be entered by PCO
CH Yes
DH If individual id'd as gender neutral there is no box in section 2 to recognise that
CH yes
DH So a dilemma
CH No. On direction of court.
DH So that could be

@tribunaltweets2 against prisoners wishes
CH Possibly, yes
DH So if someone in court ids as gender which may not be obvious a decision has to be made
CH Yes
DH Process undertaken to make a decision
CH That's SPS process, not mine. Not seen that.

@tribunaltweets2 DH Other ways of identifying ...
CH Can't answer, don't work for SPS
DH Details in Section 2, name etc. Prisoner number where from
CH Depends on where person comes from. Police, etc. May be no number if come from court.
DH Can move on in form even if not filled in previous box?

@tribunaltweets2 CH Yes
DH If an issue or ambiguity c individual walking in, it's open to leave m/f boxes unticked?
CH Court says re information - PCO doesn't decide m/f. The court decides.
DH Where is the harm in a difficult case where PCO doesn't feel able to put m/f in,

@tribunaltweets2 DH to leave blank.
CH We are contracted to fill in form in its entirety. It must be completed.
DH Contractual obligation
CH Yes
DH You know the terms?
CH No
DH [to bundle] There are examples on PER where you leave boxes blank. Eg for gender reassignment

@tribunaltweets2 DH If m/f box left, you could alert system that individual was asserting gender reassignment
CH Box can't be left blank.
DH [To box for drug/alcohol issues.] But can leave blank?
CH Fill in further down to give information to place receiving person.

@tribunaltweets2 DH [to Drug/alcohol section of form. Reads from form]
CH Then info would be placed in other box.
DH Where is health/risk assessment
CH Under medical. Any reasonable adjustments - that's where you put if eg drug/alcohol dependent.
DH Situation where individual presents as

@tribunaltweets2 gender neutral. Or refuses to tell you.
CH When court tells us what gender they are, that's what we go with.
DH Have you seen other documentation c TP
CH I don't work for prison service so don't deal with their TG policies.
DH Other side of contract is prison service

@tribunaltweets2 CH How they house TG ppl isn't up to us.
DH Would be unusual for prisoner to see content of PER unless ask for it via legal rep
CH Correct
DH SH mentioned T prisoner who injured a PCO as a result of being misgendered
CH Yes
DH This is only eg of this that has been mentioned.

@tribunaltweets2 DH Not trying to underplay, but seems to be one eg where PER form entry has caused an incident.
CH Probably other examples over the years, but we use the most recent. Can't remember all.
DH SH incident mentioned is clearly serious. SH said yesterday that prisoner hadn't just

@tribunaltweets2 been misgendered once but other boxes on form.
CH yes
DH And PCO in question possibly didn't make best choice in letting form be seen.
CH No. Cos sitting next to prisoner and has to write on form during time as per contract.
DH Back to DT solution not to cause distress by

@tribunaltweets2 calling TP chosen name.
CH Correct
DH That approach - would only be concern as to what was entered in box on 451
CH Yes
DH [to bundle p 573] Form filled out by you
CH Yes
DH On same page as mtg terminating DT employment. Reason for leaving box - reference made during mtg

@tribunaltweets2 DH Someone has looked at DT social media and there are concerns. Where you told about any posts?
CH No
DH Have you dismissed people from disc mtgs before
CH yes
DH It is usual for then to look at person's sm?
CH Depends on situation
DH You are listing here matters re decision

@tribunaltweets2 DH Company policies. Then you say discriminatory beliefs
CH yes
DH Part of decision
CH Nothing to do with his beliefs. It's him trying to call someone they
DH Company policy
CH Company policy is to treat everyone equal

@tribunaltweets2 DH Part of reason dismissing DT is re his beliefs
CH Nothing to do with his beliefs. Discriminatory to call people they/them when they have fought to be who they are.
DH Did you not agree with DT that m is man and woman is woman.
CH Don't disagree. Disagree with the situation

@tribunaltweets2 that would have happened.
DH Way DT expressed himself in classroom was part of reason
CH I didn't feel threatened but everyone has different level of tolerance
DH DT appearing angry, voice raised. Anyone would have been under pressure
CH Yes
DH Recollections are different.

@tribunaltweets2 DH But seems DT dismissed within hour of being asked to leave class. Seems very quick.
CH No, not if presented with evidence as I was. I don't know the timing.
DH You were not considering evidence with what SH said happened in class, but on what you were seeing yourself.
CH Yes

@tribunaltweets2 DH That includes DT presentation but you didn't find intimidating. You think dismissal within the hour was a reasonable response
CH yes
DH Even though DT rights
CH DT putting people in position where could cause harm or harm selves
DH DT refers to TG and you say because

@tribunaltweets2 of your strong beliefs
CH Strong beliefs were cos going to call them them/they.
DH you remember saying that to him
CH yes
DH Re SP notes. Sent on 10 January. Then your letter of 14th. On one view DT is dismissed within an hour, takes seven days to send a wee letter of

@tribunaltweets2 termination. Any reason.
CH I have courses to teach. Busy
DH Anyone else in on drafting.
CH HR. To make sure done correctly.
DH It wasn't because of anything else
CH I could have been on leave. Or training. Can't tell you without looking at my training calendar.

@tribunaltweets2 DH DT dismissal doesn't seem usual within a process - investigation, etc. Doesn't seem to happen here. DT might not be entitled cos on probation but you offer him to appeal. Why?
CH Cos he has a right to appeal a decision
DH DT was paid to end of month. Given more than entitled

@tribunaltweets2 to under contract
CH No reason
DH Could be it because you realised...
CH No
DH You have had conversation with Mr Sinclair?
CH No
DH Not even what's this about
CH No
DH That's all, thank you.
J Re exam
MM DH has come close to suggesting only issue between you and DT was re PER.

@tribunaltweets2 MM You have said also.. [to bundle - reads, but sound gone]
MM DT said was not going to call a man a woman cos it goes against his beliefs. Writing down - was that about the PER form?
CH yes
MM [reads] does that refer to filling out PER form
CH yes and no. [explains, but sound]

@tribunaltweets2 MM A PCO search of T prisoner. Do they need to address prisoner?
CH Yes, all about communication
MM In a search, what communication needed?
CH Need to id person. Ask them questions - lots of communication, asking about possible difficulties.
MM Do you give prisoner running

@tribunaltweets2 commentary c what doing.
CH Yes. Communication all through. Important. Some can be aggressive / harm selves.
MM DH q c PER form. He was suggesting PCO could leave m/f blank.
CH Can't
MM Yes, he was putting that to you. [to bundle] SPS doc - liaising with SPS for SOP

@tribunaltweets2 MM SPS SOP. [reads] SPS requires escort services to follow its instructions and policy re T prisoners. To PR2 - an SPS system?
CH yes
MM When PP confirmed, it will be used on system. Info from dispatching. Info re GI should be stored in responsible way. [reads c use of PP]

@tribunaltweets2 MM [reads] Name and PP should be used in all verbal communication, all paperwork,
MM There is a requirement to record things accurately
CH Yes
MM To DH point that you can leave ambiguity on form. You disagree. [to GA welfare and care SOP]
MM Reads c TP status

@tribunaltweets2 MM [reads] Any ambiguity, it will be recorded as down by dispatching agency. Re walk ins, prisoner will be asked and any ambiguity resolved by the court.
MM Re ITC being safe space
CH ?? [sound]
MM DH asked you about your decision making process at dismissal.

@tribunaltweets2 MM Was you primary concern DT's beliefs or what he was prepared to do or not do?
CH What he'd do.
MM No more question.
[J and DH discussing timing and evidence from Mr Sinclair]
DH MS shouldn't be long.
J [asks about rest of witnesses]

@tribunaltweets2 DH MM and I have been talking all day re timing. I need to talk to DH about further witnesses or not.
J [asks c subs] Will I have written submissions?
DH If that would be helpful
J Always helpful. My practice is parties reading out written submissions may not be of benefit.

@tribunaltweets2 J I normally read them and then give parties opportunity to answer any questions. We could vacate a day for this. Please discuss among yourselves and say if any objections.
DH Re not reading out, from open justice perspective written subs could be made available to others.

@tribunaltweets2 Would need to be careful c privacy/GDPR.
[Discussion re next steps]
DH I will discuss and come back.
[Break till 15.20.]

@tribunaltweets2 @threadreaderapp Please unroll