Thread by @tribunaltweets

We expect to be reporting this morning from 10 am on a preliminary hearing in MacDonald (C) vs Public and Commercial Services Union (R). The R is seeking to strike out significant portions of C's claim.

Link to our Substack with background on the case and the preliminary hearing can be found here.
open.substack.com/pub/tribunaltw…

A reminder to readers that our reporting should be considered as a whole. It is not a verbatim transcript of proceedings as we explain in our Substack as linked via our X bio. We report in good faith and make all efforts to ensure our output is fair and accurate.

We are a volunteer collective of citizen journalists. Our work is focused on covering legal cases on freedom of speech and belief. Please consider supporting our work with a subscription to our Substack.
More background and previous cases here:
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Abbreviations we expect to use:
C/FM - claimant Fiona Macdonald
MG - Margaret Gribbon solicitor for C
NC - Naomi Cunningham, barrister for C
R/PCS - respondent, Public and Commercial Services Union
J - Employment judge, will confirm name later

RB - Respondents barrister, will update
UARM - Union's Association of Retired Members
SR/GC - sex realist or gender critical belief, biological sex is real, important, immutable, and not to be conflated with gender identity;
GI - gender identity or gender identity belief

Gender identity refers to a person's internal sense of their own gender—typically as male, female, both, neither, or another category.
EA - Equality Act 2010
FWS SCD - Supreme Court decision in For Women Scotland
NDC - National Delegates Conference of the PCS

Today's hearing is likely to be largely legal argument rather than a discussion of substantive matters. Legal argument can be difficult to report as narrative if there are many citations of law, regulations and cases.

The basis of the strikeout application by the Rs is that an organisation cannot hold a belief.

SB - Stuart Brittenden KC for Rs
NT - Neil Todd, solicitor for Rs.

Hearing will begin shortly, we've been taken through to the hearing room.

Judge has arrived.

J - Good morning, I am Judge Campbell assigned to take this hearing. Speaking to the remote observers, please keep cameras and microphones off at all time.
Confirms all attendees and representative.
Thought I would begin by telling you what I've got, I've looked at each of

counsels skeletons and a bundle of productions, and an additional bundle of productions and a list of authorities. Anything else I should have?
NC - there are 2 additional authorities I have emailed, I have hard copies if necessary
J - hold on to them for now until you come to

them
SB - I have hard copies if necessary,
J - hold on to them as well. I may not reach a decision today that I can hand down orally, in which case I will give a decision in writing to the parties later. Can I get an idea of how counsel will conduct the case, any witnesses say

NC - just submissions, no witnesses
SB - the same
J - can I ask some clarifying questions then, SB, your ground one is that the R, an unincorporated association cannot hold a belief, it was worded differently in your original submissions that said organisations cannot hold a

belief
SB - I was going to row back from that, and assert that the R did not hold a belief in GI and exclude GC
NC - that's not what I understood,
J - SB, can you clarify
SB - the R supports all the PCs and not GI to the exclusion of GC
J - NC, your argument is that the Rs

held and manifested that belief
NC - that the Rs adopted that belief
J - and your amendment, should we deal with that now
NC - let's deal with the strike out app now, and then we can address the amendment
J - not straight off then
NC - no, we can do later

J - those are my qs, is there agreement on order
SB - it's our app, we will go firts
J - makes sense
SB - Rs app to strike out (SO) the indirect discrimination case, can we look at the Rs pleaded case (page & para refs), key point as para 43 is expressed as 'in the alternative'

in case the claim for dir discrim fails, alternatively it is indirect discrimination. The key point is the group disadvantage is set out, in summary those paras do not engage with the primary claim of not receiving award in person at conf, they are not indirect discrim

but rather direct discrim and harassment.
The 1st ground in relation to institutional belief (IB), we acknowledge that Aslef and other cases, the ECHR says that unions like religious orgs can hold beliefs. The key issue is whether or not the R had adopted GI belief to the

exclusion of GC belief. The R advocates and supports all PCs. However that advocacy will not always support both GI and GC belief at the same time. Refers to material in productions...(bundle, we have not seen)
J - have read that
SB - the holding of GI and GC beliefs can

both be PCs. Precis - PCS members can hold both GI and GC beliefs and can express them in a non-discrim manner. Next doc - this is a motion tabled by PCS Croydon, that motion presses for conf to reject GC and biological essentialism, woman not defined by biology, motion ruled

out of order and rejected by conference. It is reasonable to infer that if the maj at conference voted to reject the motion it was not supported by members.
Now on to SC FWS, guidance, critical of PCS for 'segregating trans colleagues'.
J - how do I understand that group?

SB - its a faction within the Union, faction not being a dirty word here, describing a group with common interest. Now a statement by 'Proud', 25 motions marked out of order, majority related to trans rights. One final point, Union's actions taken in response to PCS Leaf branch

2nd para of Times article, Scots Gov removing a section of guidance that said trans staff should choose what bathroom to use, legal intervention from the leadership that the guidance from the Scots Gov should be followed.
Two points to make: matters need to be debated, and the

implementation of FWS SCD - these are not an indication that R has an IB. This is based on documents produced by C.
2nd ground - convention rights engaged, ind trade union members have the right to hold or adopt a belief, and indiv members have the right to hold a collective

belief. And the right to hold a belief is an absolute belief. Acknowledged in Higgs v Farmor's School. Clear authority that the right to hold or adopt a belief is an absolute belief. The first proposition is an elementary one, if the mere holding of a belief is a PCP, that

is a profound interference with convention rights.
(PCP - policy, criterion or practice)
I did say i would address if there is a difference between the holding of a belief and an adoption of a belief. It is a semantic point without any substantive difference. If someone

holds a belief, they have adopted a belief.
J - so holding = adoption and does not constitute a PCP
SG - merely adopting a PCP does not give rise to liability. Next point - case of Sanchez in Spain, sets out the extent of the union's right to pursue and express its idea both

that which is favourably rec'd and that which shocks offends or dismay. The ECHR says that freedom of expression is the sin qua non of a trade union's existence. Must be able to express ideas freely. Nat'l authorities must not dissuade union officials from free speech.

There are very narrowly drawn exceptions which don't apply here. But there is a thruster boost as it relates to debates on matters of public interest. Not inviting you to stray into the arena of the subject matter, but you can take note of the fact that the GC/GI debate is a

matter of public interest. Just pausing there - if the mere holding or adopting a belief can amount to a PCP it interferes with convention rights 10,11,12. Closer to home, the mere holding of a belief isn't sufficient to engage sec 19, you can see that applies or a variant of it

appears. This isn't a technical lawyers argument its the foundation of the claim, no authority has been identified to support the mere holding of a belief as PCP. I've summarised the familiar authorities, but TfL case confirms that PCP is adopted broadly, it has to do with how

an individual employee is managed. So there is the element of 'doing something'.
SB (conts) - Higgs on indirect discrim, Christian worship in the workplace, some cautionary wording, is there an express rule that forms the PCP that forbades such worship, but noted that all

previous cases had been direct discrimination. Notes that pleading direct or indirect discrim is not a matter for the claimant's choice.
A thought experiment - invert the circumstances, could a proponent of GI, upset that motion 47 had been rejected, bring a claim of discrim?

And the answer was no. A motion has to regulate the relationship of the member to the union to engage the EA.
The pleading is defective because there is no application of a PCP, the indirect discrim is pleaded as an alternative to the direct discrim claim of not being invited

to conference to receive an award. The PCP on this case must relate to the issuance or arrangements for collecting the award - but that's not reflected in the pleaded case. The pleaded case goes well beyond that disadvantage. The C cannot establish or frame an indirect discrim

claim related to the manner in which she rec'd her award.
The final point is the correlation between the PCP and the disadvantage, let's go to Higgs, we've got a-f. Creates barriers to recognising contributions to Union, no identification of barrier. If a union refuses to

recognise or award - that is direct discrim. Don't want to go through them all - but also engages with para b - ignoring people in execution of their union functions - that is either direct discrim or harassment. You cannot bring a claim of harassment in indirect discrim

In relation to each of these, what had been done or not done that gives rise to group disadvantage, in relation to individual disadvantage, the C is relying on asserted group disadvantage which is not the specific disadvantage she has relied on.

The only other point to bear in mind is the floodgates points. You will have seen the other motions - many motions relate to other matters such as US foreign policy or the Middle East, a union cannot be on the hook for such expression.
We know that the GC views in Higgs were

justified. So the opposite must be true - GI belief and expression must also be protected.
Now on to the amendment application. We object to the amendment because it does not cure the R's objection, the addition of 'regularly manifested and acted upon' is nebulous.

If that clarification was provided, it is probably instances of direct discrim or harassment, a different form of disadvantage, a different type of claim. The PCP is not anchored to the pleaded disadvantage. Unless I can assist further...
J - let me go back to one of your

points. Your very first argument was that the R could not possess an institutional belief, do you hold to that?
SB - Not saying that, in the light of Aslef decision.
J - you're saying that section 19 is not engaged.
SB - yes
J - NC are you ready to give your subs

NC - it is helpful that Rs has given up on 'not able to hold institutional belief'. However, they are asking you to adopt a very narrow and hostile interpretation and then strike out a portion of the case. However, strike out is a high bar in discrim and whistleblowing cases

NC - what you must do today is take the Cs case at its reasonable highest and make a decision. The R has substituted 'holding a belief' compared to 'adopting a belief' in their skeleton, holding of a belief cannot give rise to a PCP. The C is asserting that the R has adopted

GI belief as an institutional belief and regularly manifesting and acting on that belief. SB does not develop the submission that an org cannot hold a belief, but rather goes straight to the arg that the R does not hold that belief. The R's application does not speak to that

5 grounds, orgs cannot hold belief, holding a belief cannot create a PCP, etc.
The goalposts seem to have shifted somewhat cataclysmically - the R now seems to be saying that the org has not adopted GI as an IB. It seems that he is saying that the facts wee wholly

were wholly inconsistent with the documents. Those documents were put forth to respond to the Rs supposed argument that an org cannot hold an IB. The C did not expect to be put to proof of the 'inconsistent with the documents'. However, we put forward a small sample of

the proof that C intends to rely on, hastily assembled over the last days. We prepared to respond to a different application.
J - can we look at some examples?
NC - going to union X account,
J - is this continuous?
NC - it's a search for tweets using the word Saorsa,

Saorsa is a trans identified man who was sent to represent the union at a union women's meeting.
Platforming and retweeting the materials of PCS Proud which is the TRA group within PCS is supportive of GI.
And whilst a specific motion at conference was defeated,

another motion condemning the Sullivan Review and referring to Sex Matters (SM) as anti-trans org. Explains SM is a registered charity and I was chair of it but no longer am. Sullivan Review called for accurate sex based data to be collected.

J - questions on motion,
NC - and finally, some further tweets from PCS Union, join PCS Proud tomorrow, promoting Proud events, tweeting about the emergency motion that was passed
J - the motion we just looked at?
NC - yes. Item of Page 11, may be perfectly acceptable

but we don't know because it talks about how to defend trans colleagues in the workplace. We may need to look at it further.
(C & counsel conferring)
NC - again, there may be detail behind what we see, individual who describes self as queer and non-binary, the blog may throw

more light on GI belief. That is a small and hurriedly assembled selection. But not in the bundle is that R sent a TiM to a women's meeting.
J - many of these matters are subject to proof at a future date
NC - the PCs listed contains what may be a significant omission,

the objects of the union are set out, most of which are PCs from the EA. What is not listed in belief. Religion is listed but not belief. The acknowledgment that SB refers to of Forstater, may be prudent risk management rather a demonstration of non-adoption of GI belief.

It may be that there are cooler heads in R that moved away from more extreme expression of GI, and illegal motions. This does not mean that they have not adopted GI, but rather they are acknowledging the current legal client. There is no dispute that GI belief exists, and

there is no argument that GI may be capable of being a protected belief although this has not been fully legally tested. The difficulty is when an org has fully adopted GI as it's belief, rather than simply acknowledging that it exists and may be protected.

NC conts - We did not set out to prove the existence or holding of the belief, SB says that the PCP is not evidenced by the documents put forward and they do not. We were not expecting to defend that argument today. There seems to be a 3rd limb of argument, even if the R has

adopted GI as IB, it is an interference with convention rights of R. We say that adoption entails manifesting and acting and if that adoption puts GC members and C at a disadvantage then it falls to be justified. No doubt that Rs rights will be infringed but is it proportionate.

This is not the stuff of strike out applications, this is a careful balancing of the facts and rights and proportionality.
J - your case is not based on 'holding a belief' but on manifestation
NC - yes. All of the questions that would go into an assessment of proportionality

under Sec 19. SB also said that holding a belief does not produce a disadvantage. Of course, it doesn't - if she silently held a belief and never expressed it, there is no disadvantage. SB is consistently saying 'holding or adoption' as if these were the same thing. We've both

been talking about GI and GC as those terms are well understood. It maybe helpful for you to look at the judgement of Smith vs Northumberland Police, where it held that manifestation of GI belief was not appropriate.
NC - is this a good moment to hand up the judgment?

J - yes, can I have them both. What is the relevance of the definitions?
NC - SB and I have both been referring to GI and GC beliefs, it may be helpful to have these outlined in a form that the High Court found acceptable.

NC - SB refers to Glover and LaCoste, can we turn to that, page 166 of authorities bundle.
J - is it in the skeleton or referred to.
NC - I can't give you the page numbers, I'm working from separate copies, but can I ask you to look at the head note first.

The c in this case asked for flexible working, and it was argued that it did not apply to her.
J - is it in 'inflexible working' rather than flexible working
NC - she asked for a variation of usual terms, was denied and then was granted when solicitors threatened a constructive

dismissal case. The application of a requirement that a woman could not comply with is application of a PCP even if it has not been invoked or if it exists in a contract of employment. The point here is the PCP is in the nature of a state of affairs, that is what we are

relying on. It is the state of affairs that produces the group disadvantage.
J - I suppose that the group disadvantage also has to be the individual disadvantage, we will need to come to it. SB is saying that she has not plead her case in that way.

NC - we are saying that she has set out her disadvantage.
NC - I take on board SB's point 'in the alternative', but she sets out the disadvantages that have been visited on her and her colleagues. It may be that the C should be instructed to give further examples

of the disadvantage rather than going straight to the draconian measure of strikeout. It would be proportionate.
Referring to Isola (sp) - SB's selective emphasis is an attempt to change the meaning of that passage. What's being looked at in Isola is a state of affairs.

There is a state of affairs here that the R is signed up to GI belief and hostile to GC belief and intent on suppressing it. It inherently creates disadvantage to all of those who hold GC beliefs. SB also says that there is an abundance of requirements that the

to show that the PCP is manifested. We will supply evidence to that. A PCP may be manifested by a sole trader requiring employees to join in religious observance. We say that we can produce evidence of the PCP, such as observance of the GI holy days, attendance of

flag waving R members at counter protests to Let Women Speak.
SB said that if GC is a protected belief, than GI belief is also protected. And GI belief has not been tested in that way. It is true that if GC belief was adopted by a union than GI members could bring actions

against that union if they are disadvantaged.
Finally, ground 3, seems to be a cry of where will this all end? We know from the ASLEF case that members can be expelled from a political party but must be on the basis of a rule. It is plain that unions can be constrained,

they cannot simply expel GC members. The freedom of orgs to take and apply a belief exists on a spectrum, there are explicit requirements in the EA. However, police forces or local councils cannot declare allegiance to a particular belief. Police and councils cannot adopt

GI. What a union can and cannot do is an interesting question. If this goes to a merits hearing, that should be argued out in court, not subject to strikeout. SB says that the defeat of motions put to conference on GI matters shows that GI belief has not been adopted.

SB implies that complete rejection of GC belief is undermined by motions rejected. The fact that the R is pragmatic and responsive to sound legal advice, does not mean that it has adopted and maintains its allegiance to GI belief. One of the specific things in the Sullivan

Review motion, is a core statement of gender identity beliefs. Those indications might go to evidence of the absence of GI belief adoption but might also speak to the prudence and pragmatism of the R. If you read the Forstater circular and the briefing on FWS SCD both

convey allegiance to GI and hostility to GC even though they correctly state the law. Now referring to excerpt from circular on Forstater, references to GC members dripping with disdain, distinct hint that these beliefs are distasteful.

J - we may be getting particularly close to weighing up evidence, which we don't need to do today.
NC - yes. Just one or two points from this morning that I want to pick up. Actually just one, I've dealt with the others. SB said that it can't be correct that a union would

find itself on the hook for a motion. Of course a similar point could be made that any PCP will have a disparate impact on different groups. No rational expectation that any PCP will have the same impact on the workforce. Any PCP applied by a business could be challenged,

it could be stultifying to any business to be told how to run it's business. Those points should have been made when drafting the EA. The C does not rely on any particular motion, she relies on a state of affairs. Any motion however, could have a disparate impact.

And is subject to challenge. That's all I have to say on the strike out application unless you have questions. On the question of amendment, I have given short written replies. If any clarification is required than the R is able to ask further questions to tease out matters.

And I'm happy to delete the 'in the alternative' language. SB says that various of the subparas in para 43 would necessarily crash out as direct discrim and that may be the case but that is not a matter for strike out. And SB notably skipped over 43e, suppression of expression

beliefs. In any event, this is a state of affairs and it causes all those harms. I say that the words 'in the alternative' add nothing and I ask to delete them. I have nothing else to add.
J - SB do you have any reply?
SB - literally 5 or 6 minutes
J - would anyone like

a break?
NC - I would be grateful for a short break.
J - back at 12:15 please.
Court rises.
End of morning session part one.

@threadreaderapp please unroll.