Prof Jo Phoenix vs The OU - Employment Tribunal Thread 8

[ickky]

Started on 2nd October at Watford Employment Tribunal (Radius House, 51 Clarendon Rd, Watford WD17 1HP 01923 281750)

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URGENT CURRENT CASE - Public Access Request - J Phoenix - The Open University - 3322700/2021

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Abbreviations

JP - Jo Phoenix, Claimant (C)
OU - The Open University, Respondent (R)
J - Regional Employment Judge Young
P - Panel or panel member
BC - Ben Cooper KC, Counsel for C
JM - Jane Mulcahy KC, Counsel for R
OU Departments & Networks:
HWSRA - Health & Wellbeing Strategic Research Area
FASS - Faculty of Arts and Social Sciences
SPC - Dept of Social Policy & Criminology
KMi - Knowledge Media Institute
GCRN - Gender Critical Research Network

OU witnesses

PB - Dr Paraskevi Boukli, Former Senior Lecturer Criminology, Deputy Head SPC 2021-22
IF - Prof Ian Fribbance Dean of FASS
MW - Prof Marcia Wilson, Dean EDI, 2020-23
CM - Caragh Molloy, Group People Director 2019-23
LD - Dr Leigh Downes, Senior Lecturer in Criminology (in SPC), Academic Lead for EDI FASS 2019-21
PK - Peter Keogh, Professor Health & Society, Member RSSH
CW - Dr Christopher Williams, Senior Lecturer History
KS - Kevin Shakesheff. PVC for Research and Innovation
NatS - Natalie Starkey, Outreach & Public Engagement Officer Sch Physical Sciences, 2019-22
HBC - Helen Bowes-Catton, Lecturer Social Research Methods
JD - John Domingue, Prof of Computing Science, Director KMi, 2015-22
LW - Louise Westmarland, Prof of Criminology, Co-Deputy Head SPC, 2018-21, Current Head SPC
RH - Richard Holliman, Prof Engaged Research, Head School Environment, Earth & Ecosystem Sciences, 2019-22. Member of Investigation Panel investigating the C’s grievance
CT - Catherine Tomlinson, Senior Student Advisor
DD - Dr Deborah Drake, Senior Lecturer Criminology, Head of SPC 2018-21😇
SD - Shaun Daley, Head OU’s Resourcing Hub. Head Strategic Resources, Co-Chair OU’s LGBT+ Staff Network
SJ - Samantha Jacobson, Employee Relations Case Manager
NS - Nicola Snarey, Assoc Lecturer Eng Language - This witness did not give evidence.

Witness for JP:

SE - Professor Sarah Earle, Head of the HWSRA

Tribunal Tweets - https://twitter.com/tribunaltweets

TT coverage so far - https://tribunaltweets.substack.com/p/professor-jo-phoenix-v-the-open-university

Prof Jo Phoenix Witness Statement (scroll to bottom of page and download)

https://jophoenix.substack.com/p/phoenix-v-open-university?sd=pf

Thread 1
https://www.mumsnet.com/talk/womens_rights/4905118-jo-phoenix-vs-the-ou-employment-tribunal-2nd-october-whispers-ben-cooper?page=1

Thread 2
https://www.mumsnet.com/talk/womens_rights/4913946-prof-jo-phoenix-vs-the-ou-employment-tribunal-thread-2?page=1

Thread 3
https://www.mumsnet.com/talk/womens_rights/4917480-prof-jo-phoenix-vs-the-ou-employment-tribunal-thread-3

Thread 4
https://www.mumsnet.com/talk/womens_rights/4918479-prof-jo-phoenix-vs-the-ou-employment-tribunal-thread-4

Thread 5
https://www.mumsnet.com/talk/womens_rights/4919223-prof-jo-phoenix-vs-the-ou-employment-tribunal-thread-5

Thread 6
https://www.mumsnet.com/talk/womens_rights/4921308-prof-jo-phoenix-vs-the-ou-employment-tribunal-thread-6

Thread 7
https://www.mumsnet.com/talk/womens_rights/4922765-prof-jo-phoenix-vs-the-ou-employment-tribunal-thread-7

JM: Q is did JP resign as last straw bcs of statement of 10th november - we say no, the real reason was that she got the job at Reading. Interview 30/11, offer 1/12, resigned 2/12. Not saying interview a sham - wd never say that - but it's unheard of for things to go that fast

JM: It is not harassment or discrimination, what happened about the grievance, it's preposterous.

JM: It's argued the lengthiness shows institutional cowardice, perhaps even anti GC views. We say absolutely not. Nobody asked IF or the VC that.

JM: Coming to the grievance. We had lots of talk about how long it was taking - am sure everyone here has been involved in grievances that take a long time especially complicated ones like this v lots of people.

JM: No harassment - we've seen JP was v happy 18/6, and there is no objective harassment in letter. No one suffered detriment. GCRN carries on existing and is still the only one at any UK university.

JM: Letter writers object to OU badging. OU hadn't even been aware - GCRN had to go and apply for it thereafter. Writers have every right to express concerns about all this.

JM: so re open letter. What were authors trying to achieve. That AF should not come at expense of marginalised ppl. Does not mention GC beliefs - mentions GC feminism which JP agrees are different and she says she is not the latter.

JM: Am using "campaigner" in this context - don't mean standing in Downing Street, I mean campaigning to achieve what they wanted.

JM: And JP public face eg to IF, contrast with what's going on behind scenes, campaign to launch GCRN and then take GC views forward. JM: the VC had looked at website - saw public, open to all

JM: So for example if we look at how we've dealt with the OU letter. We remind that JP is a campaigner and knew strong reaction would come. J: Evidence she's a campaigner? She denied JM: See whatsapp. talk of politicising, whether or not.

JM: We say comparator must be an OU prof involved in a different controversial debate which also has the possibility of harm to others.

JM: Want to briefly focus on - insofar as there are complaints of discrimination. JP relies on hypothetical comparator. Need to think who that might be. Not LD bcs wasn't claimed so and anyway not same grade in OU.

JM: Just to note that we have made subs in a way perhaps not common as we thought more helpful to court. We have gone event by event - have tried to unpick to help court.

JM: We have written response re Miller. Completely different case. That was whether lawful to record NCHI - J: Not necessary - we have in written.

JM: if we look at Nailard v Unite. Is re inaction by an organisation to alleged harassment / discrimination. Cannot impute a discriminatory motive just bcs inaction.

JM: Moving on to the legal framework. BC was distinguishing between attacks on the person, ad hominem, and more general. We say the cases he cites are not ad hominem. J: if you mean Higgs and Miller cases, no need. JM: No [two
JM: There are two different telescopes here. BC is looking through one end, we through the other, They are very different. Court is going to have to decide which reality to accept. You have an unusual amount of evidence in our favour, in this case.

JM: JP resignation letter - does not mention job at Reading, which she'd heard of the previous day. And so OU decided to suspend investigation. We don't accept it was bcs of claim.

JM: JP resignation letter - does not mention job at Reading, which she'd heard of the previous day. And so OU decided to suspend investigation. We don't accept it was bcs of claim.
12:09 PM · Oct 20, 2023

JM: There are two different telescopes here. BC is looking through one end, we through the other, They are very different. Court is going to have to decide which reality to accept. You have an unusual amount of evidence in our favour, in this case.

JM: Moving on to the legal framework. BC was distinguishing between attacks on the person, ad hominem, and more general. We say the cases he cites are not ad hominem. J: if you mean Higgs and Miller cases, no need. JM: No [two other cases]

JM: if we look at Nailard v Unite. Is re inaction by an organisation to alleged harassment / discrimination. Cannot impute a discriminatory motive just bcs inaction.

JM: We have written response re Miller. Completely different case. That was whether lawful to record NCHI - J: Not necessary - we have in written.

JM: Just to note that we have made subs in a way perhaps not common as we thought more helpful to court. We have gone event by event - have tried to unpick to help court.

JM: Want to briefly focus on - insofar as there are complaints of discrimination. JP relies on hypothetical comparator. Need to think who that might be. Not LD bcs wasn't claimed so and anyway not same grade in OU.

JM: We say comparator must be an OU prof involved in a different controversial debate which also has the possibility of harm to others.

JM: So for example if we look at how we've dealt with the OU letter. We remind that JP is a campaigner and knew strong reaction would come. J: Evidence she's a campaigner? She denied JM: See whatsapp. talk of politicising, whether or not.

JM: And JP public face eg to IF, contrast with what's going on behind scenes, campaign to launch GCRN and then take GC views forward. JM: the VC had looked at website - saw public, open to all

JM: Am using "campaigner" in this context - don't mean standing in Downing Street, I mean campaigning to achieve what they wanted.

JM: so re open letter. What were authors trying to achieve. That AF should not come at expense of marginalised ppl. Does not mention GC beliefs - mentions GC feminism which JP agrees are different and she says she is not the latter.

JM: Letter writers object to OU badging. OU hadn't even been aware - GCRN had to go and apply for it thereafter. Writers have every right to express concerns about all this.

JM: No harassment - we've seen JP was v happy 18/6, and there is no objective harassment in letter. No one suffered detriment. GCRN carries on existing and is still the only one at any UK university.

JM: Coming to the grievance. We had lots of talk about how long it was taking - am sure everyone here has been involved in grievances that take a long time especially complicated ones like this v lots of people.

JM: It's argued the lengthiness shows institutional cowardice, perhaps even anti GC views. We say absolutely not. Nobody asked IF or the VC that.

JM: It is not harassment or discrimination, what happened about the grievance, it's preposterous.

JM: Q is did JP resign as last straw bcs of statement of 10th november - we say no, the real reason was that she got the job at Reading. Interview 30/11, offer 1/12, resigned 2/12. Not saying interview a sham - wd never say that - but it's unheard of for things to go that fast

JM: Final point - jurisdiction. "Excluding claims" - those of 2019. We say no evidence JP did not get work she wanted - have put all in subs. But re out of time - not bothering to argue re [referring to numbered points so don't know which] but re [same] we do argue out of time

JM: J you asked JP when she had realised what her legal rights were and she said June 2021, but, see whatsapp - talk of Forstater case in the February. So - JP might not have known GC protected until June 2021 but knew it was in the air.

JM: And when Reindorf report came out - predates forstater but, mentions possibility of indirect sex discrimination. Which is was a claim initially made by JP tho now dropped. JP knew earlier than June 2021

JM: End of my remarks J. Would like to thank court eg for late sittings. J: One Q. You pose the idea there is a Q of whether reasonable to express view that GC views are transphobic is a valid debate - want to know if you are fitting some tweets into that, re podcast
JM: I think BC agreed - not necessarily against the law to say someone with GC beliefs is a transphobe, bcs GC beliefs are very broad - can span everyone that thinks eg sex is immutable so trans ppl have no right even to exist, to, much more nuanced version.

JM: So it's not necessarily wrong to say GC is transphobe. See also emails LD/JP re what does transphobic mean. Also in the podcast, Julian Vigo says X is homophobic and JP doesn't object.

J: But the tweets in question? JM: Not aimed at individuals. Well, maybe one. But not the main things. J: We'll break until 2pm [LUNCH]

This is for people who don't have Twitter as the thread reader app missed the last half.

@ifIwerenotanandroid
It's a small organisation; send them an email/phone them and ask.

Try 01225 448 748 now the lunchtime rush is over.

I was actually going to write silly little girl but backed off. It was interesting too the way she talked to the judge directly, sort of 'we have a connection, you and I, don't we?' Lots of tinkly laughs.

OK we are back

I was a nurse, and got offered the jobs I’d applied for on the day of interview. The one time I had to wait was when I didn’t get the job - I already knew because I hadn’t heard from them.

So glad I didn’t miss BC - hope everyone listening will be able to reproduce his arguments, as TT threadreader missing half the content.

I’ve been using the “Thanks” button as a like button, anything that made me smile or think.

You have an unusual amount of evidence in our favour, in this case.

Really?

As someone who won a tribunal earlier this year, I am following with interest. Mine related to sex discrimination and harassment, whistleblowing detriment and a smattering of disability discrimination, and the public sector witnesses were just as awful as the calibre of the OU ones here. The respondents did a similar tactic of flooding the tribunal with witnesses. I think some of the thinking is that both sides have equal cross examination time, regardless of number of witnesses, so I was giving evidence for 3 days, and our three days was to get through around 10 witnesses. It failed spectacularly for them. In the written outcome the judge used each of their witnesses' evidence against them. They would have been better off having very few. Having said that, it feels like a hollow victory. I lost my job, my career and my mental health. We are still awaiting remedy. There will be zero consequence for those involved most of whom have since retired of a fat pension.

On a tangential note, I haven't tried ginger biscuits with cheese, but I can thoroughly recommend Xmas cake and mature cheddar.

I’ve been using the “Thanks” button as a like button, anything that made me smile or think.

I do this too, but also often respond with (say) LOL! - a few emojis would have stopped the thread being slowed down. (Cheese discussions are acceptable)

BC: case is c fos. Novel element is where line is drawn re GC people - ie if GI people crossed the line rather than in other cases where it's been if GC people crossed line. Think this is the first case like this.

I'm sorry to hear that @NigellaAwesome . Hopefully it'll backfire on the OU in the same way. I'm now settling in with the metaphorical popcorn for the commentary on BCKC's submission.

I think she meant to say "you have an unusual amount of witnesses we've called to bump up JP costs "

BC: Tests you'll need to apply are v context specific. My citing all cases Forstater/Higgs etc are only there to provide eg of factors which it's helpful to identify and consider as a tool when you are looking at balance.

Zero evidence in one’s favour is probably very unusual

@NigellaAwesome

I'm sorry you have gone - are still going - through this. I left my academic job due to similar pressure - no tribunal because I physically and mentally could not have coped with it. I was on the brink of total collapse as it was.

The fact that perpetrators of this type of bullying get away scot-free, as you say, is one of the most galling parts of it.

Christmas cake and stilton is also very good.

A most perspicacious observation.

I don't think this is a good analogy.

What @ickky ?

What are we followers here missing?

BC suggests to J she look at other cases to see where on the spectrum JPs expressions lie.

BC: I'll start by knocking down one straw man, that Forstater not relevant cos c protected status of GC belief and so .This case not c what can be said by GC beliefs, it's about between harassment and not, discrim or not, in treatment of people with GC beliefs in this specific workplace context.

Take someone show thinks being gay is unnatural and immoral. Whether it's a reasonable view or not they have art 10 to express that view, inc on twitter. But it changes on the context in which they express this. If a person posts on twitteer that being gay is unnatural or immoral, they can do that. If they say on twitter therefore my colleague BC is unnatural and immoral, that's different - they have brought tweet into workplace context and it is targeted and personal, esp if person knows BC also is on twitter.

Copied from TT

BC: It's the line of FoS against a GC person where has been where GCs cross the line in the past. SO looking at a diff stage of the analysis and artic of beliefs. I'm not aware this has arisen before, but all are distinguasable on the facts

BC E'thing is highly dependant on context. I site cases on principle.
J: Checking paras
BC: I've never suggested they're not distinguishable on the facts but as a tool for structuring yr analysis of competing rights. 1 extreme of a debate v abusive personal slander

BC The mix may be different and somewhere on a spectrum. Where does the expression in Q lie? My framework involves knocking down a strawman - the suggestion in Forstater and Miller isnt relevant as is about beleifs - what can reasonably said? This isnt about GC beliefs

BC It's about the treatment of ppl with these beliefs in this context - ie B&H. Taking it out of GC beliefs, eg about morality of being gay. Whether it's reasonable or not a person can express that view, but the analysis changes dep on context they say this

BC eg if expressed within a biblical context it's fine, but if the same posted on X saying BC is immoral, they've bought into the workplace context and made it personal and targeted, even if not abusive. We might take a different view.
Tribunal Tweets

BC Context is all & this isnt about what someone can say about a PC without it breaking the law, or by being targetted to make it harassemnt. So looking a precise analysis to see if it crosses the line or is legit FoS

This is all a bit odd. Am finding it a bit difficult to pick out the import points - perhaps that's just me. J is having to ask BC to clarify.

I think he's going for the angle that this isn't about being GC, as such, it's about JP not getting treated fairly/the same as other staff by OU.

Do we think this is in case the judge is Stonewalled? Because of the whole pronoun thing at the beginning? Otherwise I’m a bit lost. He has a great case.

I'm on twitter/X & I'm lost. I guess we just trust that BC knows where he's going & it'll be good when he gets there.

'Unusual' does not necessarily mean 'large'.