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)

You may attend in person or remote viewing has been quite limited but you can request log in details from

Email [email protected]

Header should read

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

Ask for access link and pin and please give your name and address in the email as they check when you connect to the tribunal.

The clerk will ask you (in a private remote room) to put your camera on to verify, this involves looking at you, but no ID is needed. You may turn off your camera after this pointless and unnecessary process.

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

Yes, comparator is important.

He's going for a general "they didn't treat JP equally" argument, but has got the GC (and L, I think) PCs in his argument as well.

But it's not so much about PCs, it's about general discrimination I think?

(And, the other lot have blazing underpants)

As the case has gone on I haven't got the feeling the judge has been Stonewalled. The pronouns business on the first day I think was a combination of being a relative newbie to the bench and an understandable desire for clarity given she might have had a wtf moment on reading the papers.

I might be wrong of course.

OK so he's saying that a business owner treating a employee differently because a customer has a problem with their protected characteristic is still discrimination, even though the business owner themself might not hold discriminatory beliefs.

This applies here because the employer behaved the way they did because of the 'customers' (colleagues/other people involved) who were being hostile. Rather than think critically about whether this was the right action, they sought to appease those who held discriminatory beliefs, and treated Jo less favourably as a result. Which makes this direct discrimination.

Ok, we’re moving in from technical points of law, to particular instances in this case, and now addressing the WhatsApp issue.

Copied from TT

BC: In para 44, in order to give effect to EA10 [reads re manifestation and balancing and defining comparitor] This excludes the PC, and as protected manifestations yr comparitor has neither manifested GC beliefs nor holds them.

BC The 3rd JM ascribes to the comparior holding sim contested beliefs. I think that's likely right, but with caveat if an employer treats someone less favourably cos of the objections to that person by staff or suppliers, cos of a PC, then indisociability principle will be the

BC [missed] In order to maintain a happy dept doesnt work here. If u do something due to pressure of workers, who object to a PC, then u adopt their discriminatory motives even if for benign reasons. So yes, ann equiv controversial belief but not against the grain of prevailing

BC views. The hostile atmosphere is relevant here. I didnt put to the witnesses that they'd adopted hostility due to discrim beliefd. But they were influenced by hostility to her beliefs and bent to the influence of other workers.

BC Re the facts, detailed in submissions. Regarding the conduct of the C, and undue focus has been on attacking her. The WhatsAPP arent a diametrically opposed story to her narrative evidence. Consider them in parallel reflecting the same ups and downs, written in diff contexts

Presumably, it's not enough to say that the OU's case was full of holes, BC has to make his own case as well. It's just a bit more nuanced than we'd think I suppose.

Now onto the whatsapps, and why thhe other side is misrepresenting the context of them.

Is that wrong comparator case BC is talking about the TW and the Sheffield hospitals one, when the TW was allowed to use the female changing rooms and was naked in them? The comparator was wrongly stated as being a female when it should have been a male.

Being an English expat, living in Canada for the last 12 years, I frequently bemoan the scarcity of things like pork pie and scotch eggs. Sourcing them would necessitate a very long drive to a “British” butcher.

If any of you are in Lincolnshire could you please have a slice of plum bread with some Lincolnshire Poacher for me. I will have to console myself with some crap Canadian cheddar ( think we send you the decent stuff!)

I think so. They'd have won if they'd used the male comparator, apparently

BC: The WhatsApp was set up by people sharing a perspective which was different from the rest of their colleagues, a safe private space because they knew they were under siege. It was a bunker mentality. But then these little vignettes, eg someone wrote an article and someone else said well done for putting your head above the parapet. [ie they were threatened that much]

BC: The very idea that the OU is now taking credit for this group surviving is seen as an irony on this side.

Popping in to say cheers for the continuing commentary, catching up now.

A judge will often bend over backwards both in court and particluarly in their judgement to be kind to the party they're ultimately going to rule against. It avoids any ground of appeal on the basis of bias.

tbh, I've often wondered if that was a strategic decision by the NHS who couldn't afford to oppose that case successfully. Otherwise, the legal advice was pretty questionable.

I think BC's approach here is similar to the one he takes with witnesses. Taking time to build the foundation, which doesn't always look relevant until you see where he's going (particularly as this is quite technical stuff).

Catching up, missed the cheese talk and I luffs cheese, any cheeses except the abomination called feta. feta is the highly offensive version of all cheeses.

Cannot wait to see Ben's summing up put on here and I'm just about caught up enough to see it in real time. Whoop.

Perhaps he will step into a telephone box, remove his glasses and turn from BC, mild-mannered barrister of the crown, into SUPERBEN!

<hopeful>

Copied from TT

BC These ppl found themselves and it was set up as they knew they were under siege, understood need for confidentiality. It's a bunker mentality between them [reads about putting head above parapet]. You see them strategising over union mtgs eg over a death threat

BC This isnt a great campaign for a movement in the uni but trying for little wins, and supporting each other. The idea the OU takes credit for RN surviving is viewed w irony on this side. They know they'll be attacked, but not the extent. Now hunker down as they know it'll be

BC difficult. You'll see msgs incl JPk saying y'll need to step aside now. JP had been putting on a brave face and she needed to step out. She was seriously ill & distressed at that time - all the witnesses perceived that. I cant recall any of Rs witnesses denying that, esp IF

BC has important view. Prof H saw her break down so it's not true she had a private and personal persona in all this. She's in Sergeant Major mode trying to create space. Unless u think she's an arch manipulator or great actress, she didnt put everything down in one place

This I can understand, at least. The rest is a bit technical for me.

I'm just struck by the difference between JM and BC: BC demonstrating a strategy, citing precedents, telling the judge what he thinks they should pay attention to and what they shouldn't be distracted by. He's totally on it, in a way JM wasn't.

I think BCs approach here is similar to the one he takes with witnesses. Taking time to build the foundation, which doesn't always look relevant until you see where he's going (particularly as this is quite technical stuff)

Yes, I thought that after my stallion/viking horns comment. Having watched him live in the Alison Bailey tribunal it was striking the way at first it seemed like he was going round the houses until the brilliant 'Gotcha!' moment.

He's on to the unkindness to JP and her obvious distress 😒

BC: when JP finally has to break and step out of the WApp group. we know she was seriously ill and distressed at that time. All the OU witnesses perceived that. I can't recall any OU witness disagreeing with the fact that JP was upset and distressed - IF is impt in that regard, even DDrake thought it. Holliman saw JP break down in grievance mtg. JM view that JP is one (the true) person in private and another on public crumbles in context of whole evidence.

BC: Unless she is a astonishingly good actor and has been manipulating people all the way through... and if you think that after seeing her give evidence there is nothing more I can say

The fact that she expects hostility does not mean that she welocmes it or that she has to put up with it. YES BEN.

She knew what would happen if she publicly set up this network. That doesn't mean she should have to accept the harrassment. It means that the people she worked with were dissapointingly predictable in their discriminatory thinking.

BC seemed to be getting into his stride now. Let's not forget his has been ill.