Corby vc ACAS: Tribunal case about freedom of speech and expression

[Mmmnotsure]

Sean Corby vs ACAS , tribunal being held in Leeds now, 16-19 April

I know this is about free speech around race and racism, so not sex and gender, but there is a lot of commonality in the arguments and concerns involved. The Grainger test and WORIADS (worthy of respect in a democratic society) from Maya Forstater’s case were both invoked in the initial hearing held in 2023. This hearing is going ahead because Mr Corby’s beliefs were found to be protected.

Tribunal Tweets are covering this:
https://twitter.com/tribunaltweets
with the background on their substack
https://tribunaltweets.substack.com/p/corby-vs-acas

There is online access available by email to the Leeds Employment Tribunal
[email protected]
with the following case information in the subject heading
Case no 1805305/2022 Mr S Corby v ACAS
Ask in the email for remote access, and agree to abide by the rules of the court.

Hi all. I'm live tweeting this one. Brisk discussion this morning about an anonymity order for the 4 staff members who complained about Corby's posts. The request was rejected and the 4 can be named in the Tribunal and the live tweets.

Interesting because Corby's barrister is very well known and not necessarily for good reasons - here's his personal website https://jonholb.com/

He's also not an expert in employment law and my sense is he's used to a bigger stage. His questioning style is very confrontational. Of course, I've tweeted Naomi Cunningham - the assassin granny - in my last two cases.

But he's had the HR lead for ACAS admit that it was a conflict of protected beliefs and that he did not reinstate the posts because it would upset the employees above.

There is some glitch in the address above. Trying again
[email protected]

There is a pattern here like other tribunals, where the identity/need to feel safe of a group of people is weaponised against the ‘offender’.

(It has already been decided in a hearing that Sean Corby’s beliefs meet the Grainger test and are WORIADS.)

Sean Corby is white. His wife is black and they have children together. Corby made some posts on the ACAS Yammer thread about race, racism and critical race theory. Four people objected to these posts, saying they were racist and made them feel unsafe. ACAS HR took down the posts. From the HR person’s evidence today it appears that although he didn’t think they were racist, the comments were causing problems. So it came down to who shouted loudest and made the most fuss/risked disrupting the workplace. After it was decided that the posts were not racist, they still were not restored. Corby’s barrister pointed out the detriment to SC’s mental health as a result.

The judge refused the request to anonymise the four complainants, on the grounds of open justice [EJ = Employment Judge] [R = Respondent, ie ACAS]. My bold:

EJ - unanimous decision of tribunal that no anonymity order will be granted. R was on notice that it was likely they would be named and did not produce any evidence of harm.
The application is refused as they are all adults. We don't see how their identity is relevant but the principle of open justice has not been overcome.

From the Tribunal Tweets coverage:
SC: Sean Corby, claimant
JH: barrister for Sean Corby
EJ: Employment Judge
DE: ACAS HR, People Director.
PC: ACAS, Head of Employee Relations

They are talking about the investigation carried out because of the complaints.

JH - process could have been carried out with posts up, why did you do it
DE - group of employees felt very strongly
it seemed to me that the best course of action was to take the posts down.
JH - how did taking the posts down, enable the process to proceed more quickly
DE - due to the strength of feeling of the individuals making the complaints
EJ - not sure I understand your answer
DE - it allowed us to work more calmly with that group of individuals, there was a lot of disruption
EJ - disruption?
DE - a lot of noise, disruption of daily work
JH - if employees make enough of a fuss, you yield to what they want
DE - I wouldn't put it like that
JH - how would you put it?
DE - not like that

JH - PC described the way that they had reacted to the posts as
off the scale, and because they were concerned about their physical safety and had requested body guards. These people are unhinged arent' they?
DE - I can't make that assessment, that they were unhinged
JH - but you read the posts, not objectively offensive, requested body
guards, how would you describe that response?
DE - I would describe it as extreme.
JH - how did you respond to the extreme response of the staff
DE - I wasn't involved in that process
JH - did anyone at ACAS respond to that extreme behaviour
DE - PC talked to them and said
there wouldn't be bodyguards.
JH - so there was an actual convo that no bodyguards would be provided
DE - I don't know about the details but I assumed it
JH - why did you assume it?
DE - because they asked for bodyguards and we didn't provide them

JH - you've spoken about the process and the grievance. That grievance was not upheld is that correct?
DE - that is correct,
JH - now the process has taken place SC could have put the posts back up
DE - at that point it was clear the 4 indivs were
not appeased by the decision, they were going to appeal, they were still upset, the decision was to not put the posts back up.

DE - I thought it was the best decision to keep
the posts down, because of the unrest and disruption that would be created.
JH - why did you say unrest
DE - the individuals had strong feelings, it would take up management time, distraction from our normal work.

They requested bodyguards?!?!

Apparently so!

This feels like so many cases - including Jo Phoenix's and the atmosphere around that, and the support animal appearances. The idea of 'safe' seems to have become untethered from reality.

I'd forgotten about this case then I read the Tribunal Tweets about them wanting bodyguards and it all came flooding back!

The EJ didn't seem particularly happy with JHs questioning on some areas

@Justabaker "Naomi Cunningham - the assassin granny"... I've just splurted (is that a word?) my wine down my front because that made me cackle!

What were these terrifying posts that left them feeling the need for personal security?

"Corby argued that a better approach to addressing racism was to follow the ideas of Martin Luther King, who said that people should be judged by the content of their character rather than the colour of their skin.

Some of Corby’s colleagues complained to managers that his comments demonstrated “a deep-rooted hatred towards black and minority ethnic people who challenge racism, organise in black structures and safe spaces and mobilise against racism” and were “promoting racist ideas”.

They added that they would not feel “safe to be in contact with him in person” and questioned his right to be employed by Acas."

https://www.personneltoday.com/hr/opposing-critical-race-theory-belief-belief-corby-v-acas/

Spiked article as well

https://www.spiked-online.com/2023/10/03/blms-critics-will-not-be-silenced/

I entirely agree with the principle, and don’t know how yammer is used and what it’s for.

I admin a Facebook page and loathe people making controversial posts because it causes aggravation all round.

Was that the right place to be discussing BLM CRT etc? I would have expected a no politics/ideology rule, myself.

I am guessing his post would have been in response to other posts. Which reminds me of !egalfeminist’s guidance after Maya’s trial - if you don’t want GC leaflets in you place of work then you can’t have pride flags/gender ideology stuff either.

JH - PC described the way that they had reacted to the posts as
off the scale, and because they were concerned about their physical safety and had requested body guards. These people are unhinged aren't they?

Will these complainers be giving evidence, do we know?

There's a discussion to be had about the size of the room if four witnesses all require support animals as well as bodyguards.

He quoted MLK and that was racist!? Bodyguards!?

It's interesting, isn't it, that four employees who work for actual wages for the Advisory, Conciliation and Arbitration Service (ACAS) asked for bodyguards as a result of posts from a colleague about topics such as Martin Luther King.

They were denied those bodyguards, but the colleague's posts were nevertheless removed and never re-instated.

There may be a case for ACAS to refresh its Yammer posting policy as a result of this tribunal, but that means it will have to be even-handed about it and apply the policy without fear or favour.

Bodyguards, ffs.

I've been to the court where this is being held and can confirm that the rooms are not big enough for the usual crew plus bodyguards and support animals.

Also remember what this organisation is meant to do:

Acas gives employees and employers free, impartial advice on workplace rights, rules and best practice. We also offer training and help to resolve disputes.

How would you fair in a dispute resolution process around race if these staff are involved?

None of the Gang of 4 (was dying to write that yesterday when live tweeting) is going to give evidence. Of course not, those that call up the mob and start the witch hunt never do.

IANAL but my assessment is that JH is correct - ACAS just want to appease the Gang of 4 and was terrified of being called institutionally racist in summer 2021. And there was nothing wrong with any of the Yammer posts - based on the two that were described they were of the 'judge a man by his character not his colour' type. SC and his wife seem like the nicest people.
BTW - SC is apparently a gift jazz trombonist who's played with Winton Marsalis.
I see the judge's frustration with JH because of his inexperience and she doesn't like his style with witnesses.

Witnesses did okay - I didn't spot obvious porkies until LL who investigated the grievance and then there were a couple of 'I don't remember who sent that to me' variety. But there's a lot of buck passing and dodging behind process.

Yammer is a sort of internal social network - more like Facebook. I did a lot of digital stuff in my time and I came to the conclusion that they are at best a waste of resources and at worst become incubators for mobs.