Kelly v Leonardo Employment Tribunal Thread 4

It seems to me that there are two errors of law here:

1. interpreting “case by case” to refer to an individual situation ie a workplace rather than as a universal category ie single-sex toilets. If this is how “case by case” is understood it will make the EA unworkable in practice. It will also create a great deal of legal uncertainty.
2. The issue of how many people complained and whether their harm was psychic or physical is entirely irrelevant to the legal principle.

I'm amazed at this verdict after following the tribunal. Anyway, onwards and upwards with an appeal.
Makes you think though when they're trying to reduce the use of juries in criminal cases and rely on a Judge's judgement. Give me a Jury anytime.

Still we have to take comfort from the fact that both Girl Guiding and the WI have had to grudgingly admit that men aren't women.

This judgement went to the parties on 24/11, so Naomi knew about it when it was announced that she was stepping down. They said it had been under discussion for months, so this can't have been a big part of it, but possibly it informed the timing, as she tried to make her diary work. I just hope she isn't also looking at a loss in the Sandie Peggie case.

Sad that it was a woman judge too. Does she really like sharing loos with the blokes when the blokes have a choice to share or use single sex facilities?

If you mean, you'd expect the 0.5% of men using the facility to commit more than 4% of the assaults (which is my intuition too) I think that comes from two sources:

• I haven't looked at where the 90% of assaults committed by men comes from, but that sounds low to me: perhaps it depends on the kind of assault we're talking about
• sadly, I think it's reasonable to think that the 0.5% of female-toilet users who are men are likely not to be typical of men, but instead to be far more likely than the average man to commit assault. Good men stay out so that bad men stand out.

Also, in any individual workplace female toilet, it's quantised. It's not that each one will have 0.5% of its users being male, because few workplace toilets are used by as many as 200 people (which is what it would take for 0.5% of users to be as many as 1 user). Far more likely it's either 0% of users are male (no transwomen around), or it's a much higher percentage, if there is a man who uses that particular toilet. Overall it's a silly argument anyway - we're not really talking about the actual statistical likelihood of being assaulted, we're talking about the fear of being assaulted which comes from a whole-society set of data plus personal experience, and we're talking about privacy and dignity.

Tangental to this but shows what we are up against:

My local leisure centre said that they had listened to complaints that the toilets weren't up to standard. They used to have one set of Ladies with two cubicles. I don't know about the Gents obviously but the same amount of space allocated so1 cubicle and urinals, I guess.

Now they are very proud that they have two "gender neutral" toilets i.e. have two self contained rooms, one of which has baby change facilities. As far as I am concerned they have not improved them. I don't want to use mixed sex facilities so in my opinion they have made the provision worse - apart from the baby change. Fortunately I live nearby so don't need to use them often.

Presumably, this is the very type of "hold my beer" work that NC will be devoting her time to, having stepped back from chairing Sex Matters.

You can only appeal an ET decision on a point of law, not because you don’t agree with the outcome. Hopefully M’s legal team are all over it.

"We wouldn't accept discrimination against employees with disabilities because only a small number had felt sufficiently confident to raise their concerns"

This was not the crux of the decision though was it?

Did the judge primarily say that the company is entitled to view an inclusive workplace as a "legitimate aim"

The 1 complaint and percentages seemed to be more of a rebuttal of the "rights of the many trump the few"

As posters gave said whether this is reasonable will be decided on appeal...

So women commit 96% of the assaults despite being 99.5% of the assaulters

Men commit 4% of the assaults despite being only 0.5% of the assaulters

Still seems a high ratio given the amount of men who use the facility

I still vividly remember the J's visibly confused face, and I thought at the time that she was someone who just had a face that displayed all of her 'workings out' as she was thinking. I'm sorry to see that the apparent confusion seems to have played out into the judgement.

The arithmetic works, if the underlying stats and assumptions are true - a big if, of course. As follows:

If men commit 90% of assaults (is that all??), women 10%, this means a man is 9 times more likely than a woman to commit an assault. Say we have 1000 users of whom 995 are women and 5 men (i.e. 0.5% of users are male). Say each woman commits x assaults, so there are 995 woman-caused assaults, then each man commits 9x assaults, so there are 45 man-caused assaults. So in total there are 1040 assaults of which 995 are woman caused: 995/1040 is indeed 96% (rounding to nearest percent).

I will happily contribute to fund any appeal.

Really sorry to read this. If you are reading, Maria, I just wanted to say again that you are brilliant and inspiring and we all love what you have done, and will be rooting for you all the way to the appeal. ❤

Yes shes said she will appeal in the Herald and Sex Matters reported same.

I think its really badly drafted altogether - haven't got to that bit yet. One for @Keeptoiletssafe

Too quick - its full of typos and lacks consideration. And clearly hasn't applied the law correctly but I am just going through it now.

An appeal is necessary so I'm happy Maria is going to appeal. I wonder if we need to garden for it?

WTAF? (Thanks for /transgender UK for noting this one)

"136. Even if the crime statistics can reliably be applied to female toilets being
accessed by trans women (whether public toilets or at work), it is much more likely that any assault (including sexual assault) will be committed by a
biological woman than a trans woman (96% of any assaults in the female
toilets will be committed by biological women and 4% by trans women given
that 99.5% of the facility users will be women and women commit 10% of
5 assaults and 0.5% of the users will be trans women and biological men
commit 90% of assaults"

This logic makes no sense to me , but then I am not a judge... This seems to be such an astonishingly (embarrassingly) bad judgement that I am worried I am missing something?

(Edit: spelling)

Sounds to me that the judge deliberately dismissed the claim so that someone else (EAT) would make the final binding decision on appeal. It might be for the best in the end.

https://www.heraldscotland.com/news/25670467.leonardo-engineer-loses-trans-row-toilet-policy-tribunal/

The respondent acted in compliance with Reg 20 throughout the relevant
period because it provided a sufficient number of toilets which complied

doesn’t seem to make much sense. Unless some were badged unisex toilets surely trans identified men could have used any of the them, meaning that they would no longer comply with Reg 20?

Employment judge seems a bit dense

Does she have leave to appeal? Let's hope she does have the stomach for the fight- it's a battle being fought for all of us.

".....in the alternative, any disadvantage was minor and insignificant".

To quote Billy Connolly, "Oh, do you bloody think so?" I don't think someone taking it to a Tribunal is sitting there thinking it's a minor issue.

Crazy judgement, and I'll be tuning in for the appeal.

Clearly the judge does not 'get' what the issues are. I do hope Maria can face the appeal process and I will be very happen to garden for this. A successful appeal would be very good in setting a precedent.