Maya Forstater Tribunal March 2022- Thread 4

[Whatamesssss]

Thread one, here:

www.mumsnet.com/Talk/womens_rights/4498167-Maya-Forstater-hearing-starts-Monday

Thread two, here:

www.mumsnet.com/Talk/womens_rights/4505825-Maya-Forstater-Tribunal-March-2022-Thread-2?pg=1

Thread three, here:

www.mumsnet.com/Talk/womens_rights/4507443-Maya-Forstater-Tribunal-March-2022-Thread-3

Abbreviations:
BC = Ben Cooper QC, counsel for
MF = Maya Forstater - Claimant
AP = Anya Palmer, assisting BC
OD = Olivia Dobbie, counsel for the respondents
EJ = Employment judge, leading the panel
Panel = any one of the 3 members

CGDE (CGD Europe) – Respondent 1

CGD = Centre for Global Development – Respondent 2

LE = Luke Easley, Vice president for HR and operations at CGD, first witness for CGD
AG = Amanda Glassman, Chief Operating Officer, Senior Fellow and Board Secretary of CGD and a Trustee of CGD(Europe), second witness for CGD
MP = Mark Plant, Chief Operating Officer of CGD Europe, third witness for CGD
MA = Masood Ahmed, President of CGD and Chair of the Board of CGDE – Respondent 3, fourth witness for CGD

EM = Ellen MacKenzie, an off-stage character at CGD, involved in much that went on.

Maya's website has lots of relevant information and is collating the live tweets.
www.hiyamaya.net

twitter.com/tribunaltweets is the account to look at for the live tweets. Plus some live posting and discussion on these threads.

It is all online. If you want to watch you need to email the tribunal for a log in to [email protected]

They will send you pin number and a link to log in to the tribunal.

I’m stunned that OD has mentioned “compelled speech” so often.

Meanwhile, I now have audio but no video. Frustrating.

OD we couldnt control everything MF said so she couldnt remain at CGD (paraphrasing obvs)

there's stellar cast in the viewers gallery today

@ShagMeRiggins

I’m stunned that OD has mentioned “compelled speech” so often.

Meanwhile, I now have audio but no video. Frustrating.

DARVO

OD submits MF didn't follow CGD guidance.

MA took measured and balanced approach to disruption.

• recognised it was the affiliation that was liable to cause risk of reputational damage
• that carried with it risk of compelled speech
• BC x examined witnesses about extent of those risks, but ask to consider MF final plea, she stated she had decided not to tweet 'very much' on the Twitter account; so she would tweet just less.
• also stated she would use preferred pronouns in 'most' situations but not all (social)
• so in light of that, when MF sought to persuade CGD to make space for debate, OD submits MA concern is reasonable and decision not to renew VF but to offer paid contract was reasonable and lawful
• he weighed up benefits and risks and decided appropriate way to move forward, balancing rights

Now OD will look more at the law. MF does not argue she was an employee. Argues she was employed under contract in Equality Act. Argues she was an applicant for employment.

(Discussion of the law I don't fully understand - states case authorities to suggest MF wasn't employed.)

Gay cake case being relied on, I think — Ashers?

She's making them sound reasonable.

As I understand it, the “compelled speech” argument by OD is that if CGD couldn't get rid of MF then when MF continued the nasty manifestations of her protected beliefs there would be a perception by others that these were in some way coming from CGD.

Yes that's the one. She is saying that it's the same form of compelled speech for CGD to have to maintain an association with Maya against their corporate values, as being forced to promote gay marriage with a product you sell.

I’m stunned that OD has mentioned “compelled speech” so often.

She had me spluttering at my computer from the get-go, and then from complaining about "compelled speech" to making it a grievance against Maya that she said she would use preferred pronouns in "most" but not "all" social situations. Even when she hadn't managed to avoid using an unpreferred pronoun in the hearing herself...

@Ereshkigalangcleg

Yes that's the one. She is saying that it's the same form of compelled speech for CGD to have to maintain an association with Maya against their corporate values, as being forced to promote gay marriage with a product you sell.

If Maya had been dismissed for gross misconduct then she might have been able to argue this. But of course, Maya was never dismissed.

Their argument seems to have rather a huge hole in it, imo.

• As to how to draw distinction between 'employed under contract to do work' and those who are self-employed, ET will have to consider a case, namely whether person performs services for and under direction of another person, or whether they are an independent provider of services (OD implying MF was latter).

• In light of these authorities, OD submits core aspects of that test (employed or not). Has to demonstrate there was a contract. If she can, demonstrate she had to work personally. Finally, whether she was working for and under direction of CGD.

• OD submits where there is no contract, claim will fail. BC will say there is no need for a contract but OD disagrees.

• Links to another case of volunteer advisor that was non-contractual. Not regarded as falling within the scope.

• Consider period between second contract and start of third, when she had only her nominal title and received no pay for any work.

• Personal service is a necessary but not sufficient requirement.

• Mutuality of obligation also important. Has to demonstrate a contractual agreement. Was there an obligation to provide or accept work?

• Was there an overarching or umbrella contract?

• Cites another case where it says fact a worker only works casually, it means they are an independent contractor, not employee. Reaffirmed in another case. Legit to consider lack of obligation between contracts when working out nature of the relationship.

• Cites another passage from same case.

She is saying that it's the same form of compelled speech for CGD to have to maintain an association with Maya against their corporate values, as being forced to promote gay marriage with a product you sell.

This is a fairly common US approach - to subvert individual protections and try to apply them to institutions as if they were people against individuals.

OD seems to be referring to this case.

482pe539799u3ynseg2hl1r3-wpengine.netdna-ssl.com/wp-content/uploads/2014/03/2012-december-olivia-faith-dobbie-x-v-cab.pdf

Lee v Asher cake case

amp.theguardian.com/law/2022/jan/06/gay-cake-row-man-loses-seven-year-battle-against-belfast-bakery

This is a fairly common US approach - to subvert individual protections and try to apply them to institutions as if they were people against individuals.

Interesting.

Ah…she’s just said she or he. Who’d have thunk it, eh?

You know when you're looking forward to a new season of your favourite show and it's just not as good?

No disrespect to OD, but the writers of this latest episode... well it's just not as entertaining as last week. Bring BC back!

OD suggests ET has to consider all these factors in this case (whether she was a worker in the extended sense).

• Sets out some helpful factors.

• Turning to facts of MF status. Recall she set up her consultancy business c. 2000. Evident from CV.
• At all times whilst offering services to CGD she had her own website page offering services to other clients.
• Quotes from MF CV in 2018: she describes herself as a 'research consultant' (extended passage)
• For 15 years prior to interaction with CGD she was independent consultant
• MF accepts first contract in 2015 was a consultancy contract
• Interactions for second contract, asks ET to consider submissions, and note degree of collaboration in developing a project; claimant had a large degree of input into drawing up concept note and terms of reference for her own contract. Uses word 'collaboration' to describe her own interactions. Notable that in 2016 when claimant had no contract/pay she was meeting with potential funders to develop a workstream.
• This is significant because it demonstrates that she would normally do these things; it is work-seeking activity, not work
• BC will argue that essentially under third and fourth contract work was put her way so she could continue fundraising, and OD disputes this.

@Ereshkigalangcleg

Yes that's the one. She is saying that it's the same form of compelled speech for CGD to have to maintain an association with Maya against their corporate values, as being forced to promote gay marriage with a product you sell.

I agree with your summary but this seems to be an argument that MF doesn't even need to be manifesting her protected beliefs in a bad way, it's to claim a broader freedom of CGD to be completely dissociated from MF's beliefs, or anyone's of any kind, even if they are clearly protected. That seems rather bold to me.

@Awkwardy

You know when you're looking forward to a new season of your favourite show and it's just not as good?

No disrespect to OD, but the writers of this latest episode... well it's just not as entertaining as last week. Bring BC back!

I remember Sue Barker saying years ago that top-flight tennis players enjoy all of the technical aspects of the game that tend not to be interesting to the person with an interest in, but not devotion to, the game.

I'm assuming my lack of technical knowledge is hampering my engagement here and that there may be knowledgeable people for whom she is making one cogent and key point after another.

I doubt Maya and her legal team are at all complacent, I think OD is a good representative for CGD, better than the last one they had. But looking forward to BC.

• No promise and no obligations
• Third and fourth contracts she was remunerated for work done.
• Back to lead up to second contract, OD has set out extent of MF input into scope of the work.
• Asks ET to note lack of obligation on attending office or lunches.
• Later states this is really a red herring
• CGD and MF agree nobody had to attend the office
• On lunches, only ever strongly advised to attend
• Employees were obliged
• Second contract, OD submits that when you look at interactions between MF and US entity that contracted her, there is not the sort of situation that arose in (cites cases).
• In this case MF had large input into scope and framing and timetable of her work
• Had autonomy before and during the contract
• Asks ET to consider the terms carefully
• Very broad aims with scope for MF to frame the work.
• Not forced or compelled to accept standard terms. Some standard terms, but those are very basic.

I have downloaded OD's statement from the bundle linked in the tribunal chat. Not sure about rules re sharing it? 75 page pdf

Can see BC's yet

I agree with your summary but this seems to be an argument that MF doesn't even need to be manifesting her protected beliefs in a bad way, it's to claim a broader freedom of CGD to be completely dissociated from MF's beliefs, or anyone's of any kind, even if they are clearly protected. That seems rather bold to me.

I can't believe that there would be no conflict with the EA rights to non discrimination, it's Maya's freedom of speech the case is about rather than theirs, it seems a bit tenuous but who knows whether it will play well with the tribunal.

But if it was about the question of a Christian company being allowed to disassociate from people of other religions they had a contractual relationship with, because they didn't want to promote their protected beliefs, and causing them detriment I doubt she'd be relying on this argument.