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.

Maya shared the link on twitter so it must be OK to put it here: t.co/gyDxSPCOHQ

How does this arguement fit with the view that CGD has no corporate view? Very hard for them to argue that they need a party line on just this one thing (particularly if they have not bothered to understand it)

• In terms of the actual work, enjoyed large amount of freedom - what work, how, when
• Therefore written agreements highly significant
• Notable that claimant was required to and did invoice for her work at all times
• In invoices, she distinguished entities she was contracted with, and they matched arrangements for billing.
• At no time did she get a salary or wage
• One document she relied upon - word salary used - doesn't match reality, which was that contract required invoicing
• Responsible for own tax

Moving to second contract, some relevant matters.

• Discussion between VR and MF by email on 18 October where VR asked MF whether she would be interested to work on a proposal.
• It's clear MF and VR had not agreed an ongoing relationship
• MF reply reinforces this. Would be interested, but not in a daily commute'
• Second contract ended, but MF argues work went on to Feb 2018. Uses this to bridge period between second and third contract. She was late. Doesn't extend the relationship. Billed on 15 December 2017. Thereafter, not entitled to new work or pay.
• Fact there was no expectation either side is clear from communications between the parties.
• Jan 2017 VR asked MF whether she had luck on fundraising. OB would 'like her to keep working with them' - no obligation and MF didn't express that to CGD.
• Email 21 Feb to OB, where MF says she will need funding from somewhere soon. She didn't think there was obligation.
• We know Ford grant not extended beyond 31 Dec (seed grant). Discussions about taking MF as employee started in Feb 2018 where VR said she and OB had discussed this.
• Phrase 'pitching you as wider than tax and this is key' - too narrow to support paid role'
• This is relevant to your consideration of 'applicant for employment'
• VR did take CV to MA. Reported back on MA view that MF's experience too narrow before revisiting prospect of appointing you
• Whatever discussions had taken place, by this time this message superseded any earlier discussions.
• It was not a realistic prospect
• Where MF seeks to resurrect those discussions in her statement to suggest those had some bearing on later discussions, I submit that is untenable.
• MA position with respect to MF reiterated shortly after this in any event. In discussion with OB he stated, 'Any commitment would be limited in time and scope.'
• BC will argue this was only with respect to one contract. But consider wider context. By this time MA knew OB and VR had wanted to employ MF. He had discussions with them about this. Therefore he is reiterating 'no'.

@MayaWasSackedForGCBeliefs

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

go to page 2593 in the bundle. It's BC's closing submission.

Third contract must have been backdated given 2 March 2018, OB and MA were only just discussing the work. Note the boilerplate terms are nearly identical to first - one off paper, even shorter than first contract, and was with a different respondent to second contract (US/UK).

• Plainly a consultancy contract and consistent with messages - limited in time and scope
• Fourth contract. Consider discussion in bundle which gives insight into how contract came into being. In examination, asked MF about email in bundle. Put it to her that she could have rejected the work. MF said wouldn't feel comfortable rejecting - that tends to suggest that earlier, she could have rejected it.
• OD says MF knew there was no obligation.
• Terms of fourth contract, we see Mr Mitchell proposing suggestions as to manner of payment and scope of work.
• Whether lump sum or day rate etc. - all to be commented on, so she had degree of input and scope.
• Consider again terms of contract - same as third contract
• Consider scope and autonomy she had
• Even in final contract, MF not in position of subordination.
• She was largely involved in setting scope of work
• Continued invoicing, as little as four days (May 2018)
• 2017 and 18 MF continued working for other clients.
• B Team - right through 2018
• Wanted to keep 10% of working time for them
• A UN network, Council on Foreign Relations, Tax Journal, World Bank - Does demonstrate she was still a consultant and had other clients
• Get to August 2018. Email MP and MF. MP was still in DC. In email, we see the discussion. MP states if X funding secured, we could discuss employment. Condition required this funding.
• In evidence, MF accepted no other discussions between this email and Nov 2019
• Clear discussion never progressed. Distant prospect.
• We know when MP wrote that email he hadn't spoken to MA about employment, and upon speaking, MA reiterated his position that MF work was too narrow.
• This particular element, relevant to status where she says she was not offered employment, also relevant as to whether this was failure to offer her a role. OD offers there was no role available.
• Whatever MP understood in 2018 was an incorrect understanding, which was corrected.
• Also need for PGQ - not a strict need, but in CGD 20 year history, only one other person appointed without it.
• Drawing threads together, at no time in position which might require tribunal to look outside the written contract and look only at the relationship. In reality, they did work to the contracts.
• Plain from evidence there was no umbrella contract.
• No expectation of work to be offered or accepted.

-

got it now thanks

Will BC's submission tomorrow just be him reading out what's on p 2593 then? Deciding whether to try and rearrange work!

Quite want to see the mighty BC in action.

• Lack of mutuality.
• OD submits arguments that CGD was one respondent rather than two is misplaced in law.
• Separate office with separate board and separate workforce.
• Programmes conflicted.
• In MP evidence, programme structure wasn't really implemented in London until he came to support in 2018.
• LE evidence that operations are not co-ordinated (HR/finance)
• May have presented one CGD, that was a branding exercise.
• In MF evidence, still not fully affected.

Turning to relationship in fourth contract.

• OD submits ET should focus on nature of relationship in that contract
• How it was operated in practise
• Summarises as saying at no time was MF integrated into respondent's operations. Not employed or an applicant for employment.
• Never a real prospect of employment - never advanced past position in March 2018. She would need a few more years of expanding breadth of her work.
• Finally, wasn't a decision by MP not to offer employment in Nov 2018. When he informed her, he was simply correcting his own misunderstanding.

-

OD: There was no prospect of employment for MF.

That's an interesting claim.

OD: There was no decision by MP not to offer employment to MF.

@MayaWasSackedForGCBeliefs

there's stellar cast in the viewers gallery today

I am fan girling all over the list of people watching this.

OD moves on to substantive claim.

• Sets out the law (as she sees it).
• Correct comparator: OD submits correct comparator is 'person who does not share the protected characteristic but whose circumstances are same' (OD suggesting it would be someone who didn't hold the beliefs but produced the tweets).
• EJ: That's difficult to envisage.
• OD - yes, but has quoted extensively from case law. Asks ET to consider a case (Lee and Ashers?) - here, it is stated that judge considered indissociability. (I don't understand this bit.)

(OD seems to be arguing the protected characteristic can be removed from the behaviour?)

• Not a case where MF can say her behaviour was inseparable from the belief.
• OD says various of MF comms are not even manifestations of the belief. Can't say compulsion to take to Twitter, or to bring in the pamphlet, are indissociable from the belief. Too far removed from the belief.

-

OD: The compulsion to bring in the pamphlet

Wasn't the evidence that MF had gone to work after attending a protest and so simply had the pamphlet with her?

Is she really trying to say that tweeting gender critical views isn't connected to having gender critical beliefs....

It does seem that OD is reaching.

I'm struck by, so far, OD not relying on the evidence about how offensive MF's tweets were. She's, so far, going down the route that in some way the tweeting wasn't a manifestation of MF's protected beliefs.

I am fan girling all over the list of people watching this.
I want to know who!

I am in awe of the mental gymnastics that view would require @nauticant

OD is painting a picture that CGD having to have a continued afflilation with someone holding MF's protected beliefs would present a terrible risk to CGD. I'm just not feeling this.

Now onto the law of harassment!

Just now from Maya's twitter:

image didn't stick

Compulsion for thee but not for me

OD citing a case of leafleting, where the leafleting was not regarded as a manifestation of pacifist belief, let alone as indissociable.

• Whether saying a gender fluid person 'a man in a dress' is a manifestation of GC belief, or saying someone has 'a literal delusion' is.
• Relies on Paige (a case where claimant employed by NHS trust and gave media interview where he expressed a belief against same-sex adoption in Christian adoption). They found against him because the treatment was the way he did it in the national media. Court of Appeal found the tribunal was right to find that even that expression of the belief was not a manifestation of the belief. Article 9 not even engaged.
• Extended discussion of Paige, the cake icing case.
• OD submits that connection between the respondent and the messages was direct.
• At some length, she suggested there was a firm connection between MF and the dev community.
• Her connection to CGD online included website, any time she published an article, her Twitter handle, and on her Twitter handle she was connected to CGDE Twitter.
• She accepted her 2000 followers were mainly from dev community.
• Individuals who interacted were leaders in development
• Combined audience of 160k followers
• So in OD submission, the risk of continued affiliation was one of association with her views (back to Lee and Ashers).
• Lady Hale found that because that would be the effect (the compelled speech), therefore the law could be regarded as incompatible with Convention rights.
• What OD suggests is that the ET has to address 'indissociability' but also this question of association.
• Requires ET to weigh up the respective interferences.
• Impact on MF Convention rights by reason of CGD decisions, but also against risk and damage to CGD corporate Convention rights, both as a corporation and individuals standing behind.

OD turns to law on harassment.

• Considering whether conduct was related to protected belief
• Sets out various cases dealing with when an expression is regarded as a manifestation of belief, such as to make it related to unwanted conduct.
• Case of (? - begins with W) : rights are subject to limitation. If in effect your finding is that the decisions were taken because of a manifestation, you have to consider whether there is the right to interfere with it.
• Only in unlikely circumstances that you found it was ONLY because of the belief that you would not have to weigh these things. You will be required to consider balancing of respective rights and the mechanism in Lee and Asher where there is risk of compelled speech if claimant were to have been retained or employed.
• Has set out the principles for when Art 9 is engaged.

-Turning to if tribunal were to find unwanted conduct engaged article 9, balancing exercise is one set out in (cites case in UK Supreme Court).

BREAK

So her basic argument is: -

• She was never employed
• If she was employed, her actions were not solely manifestations of a protected belief
• If they were solely manifestations of a protected belief, there is a rights weighing exercise to be done vis-a-vis CGD corporate human rights.

(I think.)

Or, sorry - I think she says it is only if it is found that her beliefs were inseparable from her actions that the ET doesn't have to weigh up her right? To be honest, I got confused. That's not to say I think OD is confused (just that I was).