Another GC Employment Tribunal: Roz Adams vs Edinburgh Rape Crisis Centre #5

[nauticant]

Roz Adams was employed by Edinburgh Rape Crisis Centre (ERCC) as a counsellor. She is claiming constructive dismissal for Gender Critical (GC) beliefs. The CEO of ERCC is a well known transwoman known for, among other things, controversial "reframe your trauma" remarks.

There's live tweeting from https://twitter.com/tribunaltweets or if Twitter doesn't show the tweets, look at https://nitter.net/tribunaltweets. There's an informative substack here: https://tribunaltweets.substack.com/p/adams-vs-edinburgh-rape-crisis-centre

This post explains how to get access to watch the hearing: https://www.mumsnet.com/talk/womens_rights/4988632-another-gc-employment-tribunal-roz-adams-vs-edinburgh-rape-crisis-centre-2?page=24&reply=132419912

Abbreviations:
J: Employment Judge McFatridge
RA: Roz Adams, the claimant
NC: Naomi Cunningham, barrister for the claimant
ERCC or R: Edinburgh Rape Crisis Centre, the respondent
DH: David Hay KC, barrister for the respondent
KM: Katy McTernan, ERCC Senior management
MR: Mairi Rosko, ERCC Board Member
MS: Miren Sagues, ERCC Board Member
KH: Katie Horburgh, ERCC Board Member
AB: ERCC staff member (name redacted)
NCi: Nico Ciubotariu, COO of ERCC
MW: Mridul Wadhwa, CEO of ERCC
BP: Beira's Place

RA gave evidence over 15-18 January 2024.

Witnesses:
Nicole Jones (NJ): 18 January 2024 (on behalf of RA)
Mairi Rosko (MR): 19 January 2024 (on behalf of ERCC)
Katy McTernan (referred to both as KT and KM): 22-23 January 2024 (on behalf of ERCC)
Miren Sagues (MS): 24 January 2024 (on behalf of ERCC)
Katie Horburgh (KH): 24 January 2024 (on behalf of ERCC)

Thread #1: https://www.mumsnet.com/talk/womens_rights/4985570-another-gc-employment-tribunal-adams-vs-edinburgh-rape-crsis
Thread #2: https://www.mumsnet.com/talk/womens_rights/4988632-another-gc-employment-tribunal-roz-adams-vs-edinburgh-rape-crisis-centre-2
Thread #3: https://www.mumsnet.com/talk/womens_rights/4990903-another-gc-employment-tribunal-roz-adams-vs-edinburgh-rape-crisis-centre-3
Thread #4: https://www.mumsnet.com/talk/womens_rights/4991883-another-gc-employment-tribunal-roz-adams-vs-edinburgh-rape-crisis-centre-4

@SaffronSpice Excellent article thanks

My recollection of the early parts of the tribunal evidence was that the wider “character assassination” claims had been set to one side during the disciplinary.

Where ERCC is on weak ground (edited to add: IMHO) is in the action they took, or rather didn’t take, after excluding the “she’s a massive transphobe” accusations from the disciplinary. In other words when they refused to apologise.

KH’s justification (as reported up thread) of that refusal seemed pretty slippery / disingenuous to me.

@RethinkingLife I did have the pleasure of attending some of Jo’s tribunal. The criticised witnesses were (for the most part) pretty confident in giving evidence (and nuance came up a few times together with an air of you mere mortals don’t understand!).

The judgement is though quite scathing of them and I trust it’s wiped the smile off their faces - would so love to be a fly on the wall - particularly re Drake, Westmarland, Williams & Bowes-Catton! The tribunal judgement assessed them perfectly imo!

It seems to me the policies suggest the organisation is really now all about pushing trans ideology rather than helping rape victims. KH didn't question that. At all.

This was the consistent appearance from all the witnesses: it was an accepted fact that they felt was right. NC repeatedly drew comments that evidenced the quite extreme double standards of expected sensitivity, consideration, care and support to staff with trans identities compared to those extended to service users. Again presented as being quite right and proper and unquestioned by these staff.

The service quite blatantly has been made into a vehicle for the politics and those centred by them; the purpose of the service and the service users are merely resources for doing so, and of very secondary importance. And not by any means extended equal values or treatment.

My recollection of the early parts of the tribunal evidence was that the wider “character assassination” claims had been set to one side during the disciplinary.

That's my recollection too. Following that it was made very clear, at least to me, that in the culture of the organisation, "transphobe" was such a stain on an employee's character, that there would be not escaping it. Hence the constructive dismissal claim I assume.

I'm trusting this tribunal to have the same experience and skill! (Caveat, I've been unable to attend a single one. Yet again, I wish Open Justice gave us streaming and recordings.)

I think once you've demonstrated that even raped women in a rape crisis service come very much secondary to the interests, focus and support of TQ+ staff and the protection of them from the trauma of anything other than their preferred reality, with this seen as perfectly ethical......? You've pretty much proved beyond doubt that a member of staff rocking this boat could not be treated fairly or appropriately.

It's quite staggering how mild a rock was needed. But my gosh has this all been instructive. It a repeat of that feeling of however cynical you may feel you're being in interpretation of what you think happens in this political world, you're probably still being naive about the reality.

Taking it out of the disciplinary but then refusing to apologise for it isn't a neutral act. Either her actions were transphobic and therefore should be part of the disciplinary or they weren't transphobic and so the insult of being labelled as transphobic should be apologised for. Refusing to apologise shows that they are all continuing to view her as transphobic and it is impossible for that not to have coloured their decisions about the rest of the disciplinary.

I know I commented on KH, but can’t find it. I don’t think I was playing the person. It certainly wasn’t because her evidence was good so I resorted to spite.
I spent my working life in courts and often gave evidence and was cross examined. I also saw this happen to many others. Some barristers set out to humiliate and undermine witnesses. It’s a truly coruscating experience. I love Ben Cooper and Naomi because they don’t do that. They know their stuff and treat witnesses with courtesy.KH is very young and I worried for her , but Naomi was actually very gentle with her. She was confident, but actually by her own evidence , she did a terrible job, which is not surprising. A woman in her early 20 s with a year of work experience is not a suitable person to conduct disciplinary proceedings. And it is yet another example of poor governance that she was allocated the role. Her job was to ensure that the process had been fair, and it wasn’t, and then to decide on outcomes. Nicos report was clearly very biased, full of allegations about RAs views. KH said she ignored those parts as irrelevant, but they were not irrelevant, it was a clear indication of a flawed process, as were the admin errors, the delays, the lack of information.MW was supposed to have stayed away, but hadn’t, no care had been given for the welfare of the accused. No attempt was made to consider Forstater, which she knew of, it should have been clear to any intelligent person that this was relevant. She failed to accept the conclusion of her colleague, who had handled the appeal and said RA was not transphobic and should get an apology, but decided she might be and therefore no apology was necessary.

As to outcomes. Did it really not occur to any of these people that, by any normal standards, RA had done nothing wrong? AB announced they were now NB, and asked for privacy. Fine. But the name change caused a su to seek clarity about the sex of her allocated support worker. It was absolutely proper for RA to seek clarification, and it would have been rude to not copy AB in. A useful analogy for me would be that If someone asked for privacy after a bereavement, you would agree, and still need to talk to them about the practicalities. That’s what RA did. I’m sorry AB was upset, but it wasn’t about them, it was about an anxious rape victim and someone, like the team leader or the CEO, should have told them to get a grip. For me, any outcome other than complete exoneration and a fulsome apology to RA who went through months of anguish and fear, would be wrong.
Instead KH came into Court, and declared herself very content with her report, and her conduct. She would change nothing. And that’s why I think this witness lacks experience and humility. I’m not getting personal, I agree that’s wrong.

This puts it perfectly. Thank you.

@Zebracat you put it better than me. The fact that she treated the transphobia insults as irrelevant rather than as relevant to the failings and bias in the disciplinary process shows not just inexperience but wilfully participating in a biased and unfair procedure. Nothing to be proud of.

I couldn't attend much of Jo Phoenix's tribunals but I'm sure that some of those had a seniority-appropriate level of self-confidence and experience in fluent public speaking.

They certainly did - to the extent of treating the court as their own lecture theatre. Not a way to endear oneself to the judge.

no experience for and almost certainly without good oversight, having a questionable level of training and legal advice, not seeming to be aware of the wider remit and real responsibilities of being a board member (the conscience of the org, being prepared to challenge the management on difficult issues, etc), being put forward to the Tribunal in the absence of MW and Nico, parroting the party line and following policy without questioning the policy.

Exactly. It may have been a clear account of carefully following process - but it was the wrong process. And what NC drew out was not just the actions taken, but the gaps - 'didn't consider that relevant', 'no training', 'wasn't there', 'I'm not Nico'. Negative space also builds a picture, and the judge will know what should have been in those holes.

It's another step up, or down.

Jo Phoenix was treated differently from her trans-identified and trans-ally colleagues. She was 'very much secondary to the interests, focus and support of TQ+ staff'.

Here, at ERCC, actual rape victims are 'very much secondary to the interests, focus and support of TQ+ staff'.

The rape victims, btw, whose taxes contribute to the salaries of those staff.

Thank you for talking through that, it gives it a lot more clarity.

What is left is that either this is someone who knows exactly what they are doing - and did not do it right or properly and continued the prejudice and bias of the organisation's process.

Or they are too young and inexperienced to have the insight or skills needed to fully understand or challenge this, or to challenge a powerful internal culture, and the organisation is at fault for not ensuring that they sent a trustee into this situation that could do the job properly.

Either way, ERCC does not come out well.

They certainly did - to the extent of treating the court as their own lecture theatre.

YY, it was quite something to watch.

Exactly. And when you place this in the context of the Scot Govs proposed conversion bill which potentially criminalises anyone who doesn’t fall completely in line…

Ooh yes. I found the arrogance from those witnesses quite shocking really. And frightening. I can't imagine how it would have felt for JP.

In all these employment tribunals, what comes across is that the organisation forgets its duty of care to the employee under investigation. I think it often happens that an organisation subconsciously assumes that “there’s no smoke without fire” and conducts the investigation by looking for proof of misconduct, forgetting the possibility that there was no misconduct or that there were sufficient mitigating factors such that no formal warning or sanction is needed. They act like the prosecution, leaving the accused to defend themself, with the support of a colleague or union rep at best.

As other people pointed out, this tribunal has two audiences: the public and the judge.

The judge will know what KH responsibilities should be as a Trustee and whether she has fulfilled them and whether its ok to just say 'oh i knew about the judgment but didn't do anything because I hadn't had training'.

The judge SHOULD be looking for evidence that employment law was followed at all times and if there were failings who was responsible for that. So it doesn't matter how polished her answers were, she should have had a better response to the question. Strictly speaking, anything short of 'we heard about the Forstater ruling and understood it could have implications for us and took x, y and z steps', should be viewed as a failing by the board.

Keep in mind that Trustees should be proactive rather than reactive. This means they take the iniative to seek out new information and training for themselves and others if they are aware of something significant and they should keep as up to date as possible with significant issues, rather than just wait for someone else to say 'hey we need training for this, lets all get booked on it'. They should have broad, good general knowledge and follow through if and when they see a problem. They shouldn't sit on their hands.

The Employment Tribunal's purpose is to assess whether Roz was acting reasonably and whether she was treated fairly.

Questions here are:

1. Were Roz's actions reasonable - were her questions reasonable? (Forstater actually helps here because it does suggest yes the questions were reasonable because of the impact and concerns of vulnerable women who Roz was checking on).
2. Even if the ruling only came during the period AFTER Roz asked those questions it remains relevant to the handling of the process afterward. Given the nature of the issue, the charity should have been proactively looking for and seeking out similar employment issues - Forstater was NOT a case which isn't widely known. Its had a great deal of publicity.
3. If you knew about Forstater and you were actively leading a displinary in this area and didn't think to double check the implications and whether your other policies (separate to Roz) going forward were now current and up to date. Responses which are vague about 'lacking nuance' mean you also do understand this, but don't want to upset the apple cart and tackle other people in your organisation who are going around saying that using the wrong pronouns are 'an unforgivable sin'.

I am HOPING the judge sees what I'm seeing.

The answers the other witnesses gave were awful but showed dreadful levels of ignorance and blind repetition of mantra. This witness showed awareness of problematic issues but didn't do anything to protect the charity nor vulnerable service users accordingly, so potentially could be considered wilfully neglient and thought they'd be able to get away with it and continue to run the charity without considering Forstater.

So I ask again. Who gave the better answers?

Its really not as clear cut as people think if you remember the context of the responsibilities of those who gave evidence. The previous witnesses are easier for the public to spot as having answered badly, but I really really don't think KH gave better answers. She just may have incriminated ERCC in a different way.

Put this another way, even after all of this process why are we still getting ANY member of the board repeatedly saying that they don't know Forstater, don't think it's revelate, haven't had training etc etc.

They ALL should have woken up to it precisely because they were asked to apologise and should have updated their current policies to reflect this.

The fact that no changes have been made even now, give ln they've been handling this case, begs questions.

The ´nonbinaria/nonbinario’ thing really isn’t proof of anything helpful. Yes, it’s a fun soundbite, but to anyone who speaks a language where all nouns have a grammatical gender it’s obvious that it really mean anything significant that there’s a possible grammatically masculine and feminine version of an adjective.
Adjectives take on the gender of the noun that are modifying. So in Spanish a nonbinary question would need the feminine ending and a nonbinary problem the masculine ending. And grammatical gender is only very loosely connected to sex or gender as a social phenomenon.
Yes, when we’re talking about people then actual sex or gender in the sense of gender roles or gender identity inform which grammatical gender is attached to a particular person. But there are also rules like a mixed sex/gender group of people are grammatically masculine plural and words like ´persona’ and ´gente’ and ´bebé’ also have grammatical gender that doesn’t necessarily match the sex or gender identity of the person you’re talking about.
I’m sure there’s a debate going on in Spanish languages spaces about how grammatical gender might need to adapt to suit gender identity beliefs but it would be a nightmare to sort. In English people aren’t always keen on using ´they’ in the singular. But in Spanish you’d have to invent a whole new set of pronouns AND adjective endings AND probably noun ending too. The nonbinaria/nonbinario says more about the grammar of English and Spanish than is does about society’s understanding/confusion or acceptance/rejection of gender theory.

Just to say common law rulings are generally retrospective, which means a judge has determined what the law has always been. Obviously there are caveats to that.

For the trustees ignorance of the law is not a defence, beside which they knew of it, which is worse.

It is the responsibility of the trustees to understand what is and is not lawful, thats why it is important that a trustee has HR duties, or outsources it.

Not to do so creates an organisational risk.

The ´nonbinaria/nonbinario’ thing really isn’t proof of anything helpful. Yes, it’s a fun soundbite, but to anyone who speaks a language where all nouns have a grammatical gender

It was striking enough to elicit this admiration from Human Rights KC Sarah Vine.

Yes, it sounds like a fantastic admission of the whole thing being nonsense to English speakers. The witness was not a native English speaker.

Great post, and legitimate criticism imo.

People who talk confidently but demonstrate through their actions to lack knowledge and judgement are being criticised because of the latter not the former.

I agree that KH was shown to dismiss things as 'irrelevant' that were clearly not 'irrelevant' at all but NC very cleverly laid out clearly at the start that perhaps someone with KH's level of experience could not reasonably be expected to have good judgement in regard to this case.

To a certain extent, being a good trustee does involve being critical of / acknowledging gaps in your experience and knowledge and having curiosity about these and seeking further information / expert advice where you do not have appropriate experience or knowledge (and in an certain situations acknowledging you cannot fulfil a particular role e.g. if you have not had appropriate training) - so for example going away and finding out how the Forstater judgement could be relevant in this case, rather than just ignoring it. Even if you think it's not relevant, making sure you don't have a massive blind spot because you don't agree with MF personally.