New blog by barrister Anya Palmer for Legal Feminist

[justicewomen]

twitter.com/legalfeminist/status/1556362596512632838

How a false assumption led an employment tribunal to wrongly find an NHS Trust guilty of discrimination in a gender reassignment case

Direct link for people not logged in to Twitter;

www.legalfeminist.org.uk/2022/08/07/false-equivalence-a-guest-blog-by-barrister-anya-palmer/

Wow very interesting. Thank you for sharing, I now understand the equality act a little better.

Here is the direct link to the article, not via Twitter (although if you are on twitter I imagine it's a good thing to repost it)

https://www.legalfeminist.org.uk/2022/08/07/false-equivalence-a-guest-blog-by-barrister-anya-palmer/

In discrimination cases ( I have now learnt) there needs to be a comparison - a comparison with someone who does not hold the same protected characteristic, but the comparison needs to be materially the same in every other way.

In this NHS case the judgement was made by comparing the mid transition 'transwoman' to a 'ciswoman'. This is an incorrect comparison...

In short: the correct comparator for a trans-identified male who does not have a GRC, and is claiming gender reassignment discrimination, is a male who does not identify as trans.

The correct comparator is a person who does not have the protected characteristic of gender reassignment. But the comparator should be the same in all other material respects. So if the claimant is male, the comparator must also be male.

...
The flaw in the tribunal’s reasoning is obvious once we consider the question the tribunal should have asked:

Was Mrs Hawkshaw likely to have been concerned about a non-transgender male in a state of undress while using the women’s changing room?

Well of course she would. Because it was a women’s changing room, and the non-trans male comparator is… male.

I do hope they appeal.

Thanks, justice - I hope that the Trust appeals against the ET's decision.

Excellent piece. The case being referred to is this one:

www.mumsnet.com/talk/womens_rights/4593138-transwoman-wins-employment-discrimination-case-against-nhs-for-being-treated-differently-from-women-in-changing-room

Very interesting read, and very clear too. I hope the trust appeals.

I note that she identifies the probable claimant in the case, which surprised me. I assume there aren't any rules against doing that?

Very interesting thank you for posting. I'm hopeful that the trust will successfully appeal. I was surprised that her blog linked to a bbc TV interview with the claimant. Th3 name had been changed but the appearance wasn't disguised in any way.

I think it's unlikely the trust will appeal. I suspect it will be more expensive to do that than to pay whatever the claimant is awarded. Having worked in the NHS I know they will sometimes settle out of court for cases they could easily win because the out of court settlement is cheaper than taking a case to court and even if they win in court the are unlikely to have their costs paid because the claimant simply doesn't have the money to do so.

I'm not a lawyer so would appreciate the insight of anyone with legal expertise. How could the trust appeal on the grounds of the incorrect comparator being used when they treated the employee as a "woman" by allowing the claimant to use the female changing room. Surely this would be the same as admitting they had granted a man access to the changing room which would open the door to multiple claims from female employees, which I think would be justified and they probably have a case even without the Trust appealing the tribunal decision. Essentially it would reveal that their equality policy is logically inconsistent and I'm not sure why they would want to do that.

With or without a GRC the Trust could have lawfully denied the claimant use of the female changing room so the situation was entirely one of their own making.

I was wondering also about the female staff who were forced to share their changing room with this person and was subjected to her being naked below the waist exposing her penis. Would they also have a claim against their employer for not respecting their right to single spaces?

I was surprised that her blog linked to a bbc TV interview with the claimant. The name had been changed but the appearance wasn't disguised in any way.

The name hadn't been changed - if you listen to the report, it says that they decided not to use her full name. A quick google turns up the person's Twitter account, which includes the information that they are a law graduate.

As their name was withheld for legal reasons (presumably on the grounds that they were regarded as vulnerable), it is strange that Anya Palmer effectively chose to identify them, but I assume Anya knows the law better than I do.

I think FOJN makes a good point about the appeal and the incorrect comparator. I have no idea whether it's legally the case that they would be opening the door to claims from female employees, but logically, it makes sense. The trust has decided to treat the claimant as if the claimant was a woman, and therefore they (the trust) are entirely the author of their own misfortune.

I do feel deeply sorry for the female staff who have had to put up with this.

I do feel deeply sorry for the female staff who have had to put up with this.

Yes, especially those that were the subject of unwarranted allegations from the claimant.

My only hope is that this case will illustrate the kind of shit show which can result from good intentions and other Trusts will decide to implement the actual law rather than SW law.

I thought this statement from the interview linked in the blog post was interesting.

Quote
"Amy admits she was known to the police having had other incidents with neighbours"

I'm reading that as intentional ambiguity about whose behaviour might have warranted police involvement on other occasions.

Thank you, that is useful extra information.

Yes "admits" is an interesting word to use.

Yes it's v interesting. Also a law graduate being employed in that NHS position? Do people ever deliberately bring about these employment cases? It's as if the employer was being goaded.

If you've read the whole judgment there are certain conclusions you might draw, certainly.

I have no idea whether it's legally the case that they would be opening the door to claims from female employees, but logically, it makes sense.

As I said I'm not a lawyer but in the tribunal report there was a list of legal principles included before the recorded evidence. One of the principles (I'm paraphrasing from memory) said something along the lines of:

"discrimination against an employee by an employee can be considered as discrimination by the employer if the employer has not taken all reasonable steps to prevent it"

I believe this was why the Trust did not dispute the claims about overheard conversations despite there being no witnesses, they were able to prove that as an employer they had done everything possible to prevent discriminatory behaviour against the claimant and therefore it served no useful purpose for their case to challenge the allegations the claimant made against colleagues.

However they did not do everything possible to prevent sexual harassment of the female employees which is why a male could be naked from the waist down in the female changing rooms.

I know that judgements and the law are not determined by layman's logic so I could be very wrong about this.

Also a law graduate being employed in that NHS position? Do people ever deliberately bring about these employment cases? It's as if the employer was being goaded.

It's reminiscent of our old friend Steph Hayden, who has a law degree but isn't allowed to practise as a result of numerous criminal convictions. Steph puts their law degree to good use by reporting supposed hate crimes by feminists to the police and by engaging in repeated litigation.

In other news...

the arson attack was our fault. People like Lee Harrison wouldn't exist f it wasn't for terfs. I appeal to you all to terminate your terfery now and bring and end to male violence.

mobile.twitter.com/mimmymum/status/1364382023247355906

My memory is a bit hazy but I thought male violence was a thing long before there were T shirts with the definition of woman on them.

I've often gone to get out second wave feminist books from the library, only for them to tell me that Darren Knuckles got there first.

Thelnebriati · Yesterday 21:09
Direct link for people not logged in to Twitter;

www.legalfeminist.org.uk/2022/08/07/false-equivalence-a-guest-blog-by-barrister-anya-palmer/

Thank you very much. It definitely seems as though a mistake was made in the judgement. I hope the NHS will appeal.

I also hope the poor woman involved in asking the trans gender person about their underwear will know about this other legal view point - the one that vindicates her.

The NHS won't appeal this- it wouldn't be worth their while. I'm hoping some of the women concerned will though. Does anyone know them?

They can't appeal because it's not their case. But I suppose they could take legal action against their employer if they were so minded - but it would probably be time-consuming and expensive, unless a lawyer were prepared to act pro bono.

It's such a shame @RoyalCorgi, because those women have been named and they will have some negativity from some quarters, I'm sure. But I thought I had read on a legal blog that the women could take action? Maybe not.

I agree - it's massively unfair that the women were named in that judgement when they presumably had no desire to be involved in it and no doubt just wanted a quiet life.