Kelly v Leonardo Employment Tribunal Thread 3

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Ms BM Kelly v Leonardo UK Limited Employment Tribunal – hearing Case number: 8001497/2024

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Abbreviations:
C or MK - Claimant, Maria Kelly
NC - Naomi Cunningham, barrister for C
KW - Katy Wedderburn, solicitor for C
R or L - Respondent. Leonardo UK
ST - Susanne Tanner KC, barrister for R
J - Judge
P - Panel member
GC - gender critical
GI - gender identity
AL - Andrew R Letton VP People Shared Services Leonardo - respondent witness

Tribunal Tweets coverage here

https://tribunaltweets.substack.com/p/kelly-vs-leonardo-uk-ltd

Thread 1 https://www.mumsnet.com/talk/womens_rights/5416903-kelly-v-leonardo-employment-tribunal-29th-september-10am?page=1

Thread 2 https://www.mumsnet.com/talk/womens_rights/5420656-kelly-v-leonardo-employment-tribunal-thread-2?page=1

@WaterThyme You are onto something with the women in the workplace had to conceal all evidence of female differences. It’s linked to the largely outdated concept of women must shield men they live with from any evidence of “unsightly” female bodily functions.

Would any woman think that washing blood from her hands from an injury should only happen in a single sex space? Probably not. Washing off menstrual blood is a completely different thing.

@Xiaoxiong I suspect you're right (though I only know what I've read on here, especially the TT comments). However, his lack of preparation for the tribunal shows a complete lack of professionalism, and suggests that he right up to entering the courtroom he didn't take MK's complaint seriously at all.

I agree to a point. But in quite a lot of these sort of cases, HR simply weren't actually doing their jobs properly. We've seen impact assessments either simply not done or done so poorly that they were pointless. We've seen HR staff being told to pipe down by other HR staff/other departments when they tried to point out obvious issues. It does get to a point when there has to be some reckoning for people fucking up.

And there's always the 'we were advised....'. Why are these companies who were so poorly advised not suing the shit out of these activist organisations who told them a pack of lies? Garden Court, University of Essex, ERCC etc etc. The Stonewall defence of 'our advice was shit but that's on you really' seems unchallenged. It's bizarre.

@DuesToTheDirt oh absolutely! You can add "arrogant" as well to my assessment of him being lazy and thoughtless...

I just mean that he is likely in the same place that many of us women here on this very board were at some point in the past, still in our "be kind" era, not yet peaked, not really thinking through the implications for women of pronouns or ceding single sex spaces to a man who "just wants to pee", maybe with a lovely trans friend who is no threat to anyone (not my Nigel/Nigella etc)

I suspect he didn't take Maria's complaint seriously at all because it came from a woman.

And if he had taken it seriously, he might have had to say no to three men, which he was not prepared to do. Even when he knew beyond doubt after the FWS ruling that not only was she right and the Supreme Court agreed with her - the solution was to ensure there was no single sex female toilets anywhere on site.

I'd guess, as a lawyer myself, that the advice they received is either non-binding "guidance", or legal advice that was hedged round with so many caveats that a challenge to it wouldn't stand up with a professional indemnity insurer.

It also doesn't help that guidance from the EHRC got it wrong for many years, and all the lower courts also got it wrong so it had to go all the way up to the supreme court for the law to be clarified, so these advice giving bodies like Make UK have plenty of plausible deniability for their errors.

Don't get me wrong, this guy is a dope and absolutely deserves to be made to squirm under NC's withering cross. I'm very pleased this has ended up in a tribunal and I hope that it cascades down into other organisations quickly. Accountability is needed and all these policies need to be changed.

my memory of that is how much it focussed on loss of mental acuity

So basically this "awareness" is mostly reinforcing stereotypes that count against women and not dealing with practical issues that have a massive impact on women's ability to work. Lovely.

I wasn’t watching, just catching up on here.
I know there was much talk of consultations and getting it right for everyone but I can’t remember, did NC get him to admit that after SC in April Leonardo knew their toilet situation was not lawful?

I always feel a bit of sympathy towards anybody who is being given a hard time - yes, even if they richly deserve it, it's just a twinge of 'god that must feel awful' that automatically pops up..

I was starting to feel that about Andy, but when, even after all that questioning from Naomi 'Nemesis' Cunningham, when she referred to men using the women's toilets as men, he 'corrected' her and said they were 'transgender females', and then when she said that the law should be obeyed, he snottily arrogantly replied 'that's your view'.

So any slight feelings of sympathy went out the window with those two illustrations of the fact that he still thinks that TWAW, and that obeying the law, insofar as it protects women's rights, is optional.

And of course there's the underlying fact about Andy, be he lovely or not - he is a high-level HR professional who hasn't bothered to keep up with significant developments employment law, and who clearly hasn't bothered to prepare properly for this tribunal.

'Make UK', the name reminds me of the scene in Friends, Ross waiting outside in the snow after Phoebe's wedding with the wee, ratty dog for it to have a shit, shouting 'Make, make!'.

Which, I think, sums them up 🤷‍♀️

I interpreted 'that's your view' as meaning that the correct application of FWS to the workplace is a matter of opinion. Not that he seemed very clued up, but this particular trope seems very widespread in HR circles.

Couldn't we say 'this is the law, follow it or face consequences?' How many people have you noticed building golden bridges for us? We seem to get wonky, poorly maintained wooden ones with crocodiles underneath them. Equal rights means lurking crocodiles for all!

That poses the hypothetical that I could set up an organisation which gives any old shit as 'guidance' but which has an actual day to day impact on other people's employment rights and if the any old shit is exposed as, well, any old shit, then there are no consequences to me doing that at all.

Male UK might be a better name

A small comment.

I took the 'that's your view' to mean 'that's your view of the law, it isn't how I have had it explained to me'. So not saying they shouldn't follow the law, just that they have understood it differently. Which if they have been listening to outside organisations telling them it is so complicated is plausible, even if misguided.

I have been in situations where managers have preferred the vox pop 'what do you guys think this means' to listening to me, the expert, telling them what it actually means. Very frustrating.

I'd guess, as a lawyer myself, that the advice they received is either non-binding "guidance", or legal advice that was hedged round with so many caveats that a challenge to it wouldn't stand up with a professional indemnity insurer.

Even if Make UK can't be taken to court, if a company who relied on their advice ends up paying substantial damages, I wonder how much that affects their business model?

From what I remember, he said the ruling wasn't clear and they were waiting for the EHCR guidance.

In addition to this - the women's organisations which were supposed to promote women's rights and needs were agreeing with the stonewall position. The fawcett society, women's groups in unions and political parties, and even WEP were all agreeing with the fake consensus, or ripping themselves apart over it. I would imagine if there ever was a women's network / group at the company it became a general equality group and adopted the same position. - I noticed he talked to a group called "equalize" and thought i bet that is the descendent of a women's committee or network (could be wrong obvs). - Plus many of his piers in hr are female and were obviously saying the same thing. So if he did think 'but won't women object?' the answer was all around him. It was the wrong answer but that's how we've got here.

On the one hand, AR wasn't very professional about the case and he was very smug. As @MarieDeGournay says he set himself up for the verbal kicking he got.

On the other hand Leonardo are no worse than many employers and probably better than some. They and all the other employers were waiting for "guidance" meaning they were waiting for someone else to take the flak or be made an example of in court before they decide to change anything. AR doesn't need a golden bridge because AR is the golden bridge for everyone else. If MK wins then Leonardo are the (well probably "an") example that everyone else will need to change their policies if not their minds. Even if they do accept TWAW because everyone says so they aren't really that deeply invested in TWAW. They're mostly waiting for someone else to go first.

AR and Leonardo were unlucky that they drew the short straw with a determined employee with a very professional approach and access to funds. Could have been a lot of other organisations. Hopefully it wont need to be.

(sp correction)

We are saying they need to follow the law or else face the consequences, that's why women keep bringing and winning employment tribunals and in the Supreme Court. I am furious we still have to, since FWS, but I think there will need to be a few more demonstrations like the Sandy Peggie case, the Darlington nurses, and this one to make wider change stick. Also remember this one is a private sector organisation so lighter obligations to do things like impact assessments - he probably was able to look at public sector employment cases and file them under "irrelevant to a private company".

I just meant a golden bridge in terms of understanding what this man's motives are in getting this all so wrong. I doubt he was actively motivated by hatred of women and so attributing his actions to misogyny is not going to help him cross that golden bridge.

I have to believe that, because I don't think I myself, pre-peaking, was motivated by misogyny either. I was thoughtless and lazy, and didn't think through the implications until I peaked and then peaked again, and again, and again as the full ramifications of what the simple falsehood TWAW would mean legally, practically and truthfully.

Luckily I wasn't in a position where my lazy thoughtlessness resulted in detriments to women's rights.

Even if Make UK can't be taken to court, if a company who relied on their advice ends up paying substantial damages, I wonder how much that affects their business model?

Allison Baillie's discrimination case worked out very badly for Stonewall's business model. Stonewall was exonerated from discrimination but it was seen that following their advice got GCC in trouble.

I was just trying to find that in TT. MK says there was no change in policy post the SC ruling. AL says they did a survey. A survey on whether to follow the law!

NC - p407 the questionnaire in the aftermath of Supreme Court For Women Scot.
NC - after the intro, it sets out questions that it's important to capture your understanding.
Do you have any view on how it should be enforced (quotes from questionnaire).
So it seems that L thought fit to ask it's pred male workforce, 'what do you think this means...
..should we do what it says'
AL - talks about unions, all employees of company have participated in the survey [again muffled]
NC - do you usally use a vox pop? Is that a normal way to procede?
AL - this situation very sensitive

@AmaryllisNightAndDay that's a great point - Leonardo are probably just unlucky that they had the amazing MK in their workforce so they became the test case. It could easily have been any other company who all had the same policies (or lack thereof) so hopefully when MK wins, all those other orgs will have to sit up and take note.

Naomi 'Nemesis' Cunningham 😀