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

I think he needs to cover everything. So if he just makes it about GC beliefs he's restricting his case.
IANAL, though.

I suspect he's trying to undermine any argument about this being a question of the OU's witnesses freedom of speech, as their conduct crossed into harassment. IIRC there was a bit in the Forstater judgment about things being context specific?

Copied from TT

BC Did it cross the line in her workplace, incl the hostile climate for GC beliefs. Getting to JMs points: there are various debates eg role of unis but has the caveat that not all debates have equal weight, is contextual. Partic protection for political views and not all she sai

BC are political. So u need to decide whether political and assess its value and content.
J Are u saying is it part of the political debate or not?
BC Is it a side issue or part of debate, and also what is the value of this to the debate? [gives example re Tories]

BC It's always multifactorial and context specific. U need to decide if a partic contribution contribs to political
J Is there any authority u rely on for this?
BC Re the value y'll see my submissions and 3 authorities, I cant remember the quotes. None put it the way in para 18.1

BC I have drawn from these re usually being relevant and whether crossing the line and no longer protected speech, and which perspective y're viewing it from. The factors shldnt really change. The 1st in her list doesnt always apply - just be likely- is content, tone used, extent

BC: [lists more incl reputational risk, impacts and proportionality]
BC: The 2nd of her points was distinction betwn words and actions, and decision makers and those seeking to influence them. If yr only an influencer using words u must be free to use words

think I'm finding it hard to follow as BC is responding to JM submission which we haven't seen.

Yep - same here.

Reminding myself that he knows what he's doing and sees a lot more of the picture than we do.

Yep, I'm lost

I will just copy and paste from TT, so greater minds than mine can decipher.

BC: Invite you to draw inferences from launch of GCRN - the discriminators and harassers have all been influenced by the Miller-style prejudice towards GC beliefs.

J: You mean stereotyping everyone with that view

BC: Exactly

I like that BC is arguing that it is not the case that all GC beliefs are inherently transphobic so therefore saying someone who is GC is inherently transphobic is a form of slander(?) I'm not sure that's the actual term he used. But that placing that label on someone has consequences and will damage their reputation. And this is relevant in terms of workplace harassment. I think.

At what point do the Barristers see each others closing written submissions?

This morning?

Then presumably whoever goes second has to think on their feet to respond to the first Barristers verbal closing comments?

Not only that but my phone flew out of my car window in sheer surprise and landed in a nearby river flowing to the sea.

Allegedly, Your Honour.

Copied from TT

BC I disagree. Firstly the distinction cant be taken too far as words are a form of action, and we wldnt entirely be here unless ?? So words are often accom by actions. And I dont accept distinction betwn influencers and decision makers.

BC Where is the line in this case. These distinctions dont help the analysis or as a matter of principle.
BC I'll skip over manifestations of prot beliefs. Follow JMs method.
The reason why issue, Miller and Forstster remain relevant

BC They decide it isnt reasonable or true to say GC beliefs are harmful - that is prejudice. So looking at why, just like homphobia, look at what they've done us hld look at what each harasser has done or said and their inferences. We invite u to draw the inference that

BC The discriminators and harassers have all been influenced by prejudice against GC beleifs
J They're all the same?
BC Yes. If u draw that inference the reason why test will be in favour of the C, it will be irrelevant what the manifestations are. It will be cos of discriminator

Oooh if the J makes a statement and B says "exactly" that's a good thing!

Thank heaves that there were only 7 of you in the car! (Or was it 17?). Could have been a nasty accident.

BC: Human rights act and equality act - have to apply that balancing exercise to the open letter, DDownes' tweet, each of those.

That's what I'm clinging to, @Feministwoman - the judge has asked a couple of Qs & that seems good.

He's taking this away just from harassment on the Protected Characteristic of GC and making it about Protected Characteristics in general, I think?

Arguably JP was also treated less favourably because she is L, rather than Trans or NB ?

So he's saying that most of the OU staff accused her of being a bigotted transphobe without any evidence, except heresay?

I think BC should have just gone with the Pants on Fire Closing Submission.

Copied from TT

BC general beliefs. So isnt about protection of specific words. Then look at harassment issues which are subjective and no legal difficulty here. The comparitor Q will be parked as there's a wrinkle here. Finally, re harassment was it reasonable to have the effect it did.

BC For direct discrim, is it reasonably a detriment?
J But there's also a reasonable test here
BC The wrinkle is re the alleged discrim is whether the alleged harassment affects the others FoS, and balancing exercise needed here. U apply this re the open letter or various emails

BC Because it doesnt matter which perspective u look at the matter the approach shld be the same, and whether ppl have overstepped the mark. I have set out my factors and my core framework.

BC Back to comparator issue, there are 2 caveats, sorry 3 I want to add

BC 1st from Shamoon, even when not a statutory comparator in LD differential treatment may have an evidential value in drawing conclusions. 2nd is to do with how you view protected manifestations of a belief.

The comparator q is impt. A case (which involved a male trans-identifying employee who was using the room where women might need to change clothes) failed recently when the wrong comparator seems to have been used and the claimant decided not to (or couldn't - money?) appeal.

I'm hoping that the "pants on fire" legal argument will come up later on, as a sort of coup de grâce.

I hope so. I wish we could read the closing subs. It might all become clear then.

BC: Having the benign motive of maintaining a happy dept doesn't help you if you sideline a female employee because it's full of men and they don't want to work with a woman.

He did say that he would use that in his submissions (obviously he couched it more diplomatically!)

I think we've got to assume BC knows what he is doing, but reading between the lines this isn't the 'BC rides in on a white stallion sporting VIking horns' spectacle that we were all hoping for?