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

Does anyone think that AL would have got different advice from anyone else though? Stonewall and their ilk had everyone sing from the same himsheet (not a typo). ScotGov took it to the Supreme Court because they were that convinced that tw(with a grc)ww. From the NHS threads every single one seems to have been twaw.

It's a good question cake. I'm trying to think of another point of law where every single law firm and professional advisor has got it so wrong, for so many years.

I doubt there could be claims for negligence for advice provided before the supreme court judgement - prior to that judgement I would think that MakeUK and other advisors could rely squarely on the fact that all other reasonable professionals would have given the same advice. There is something called the Bolam test which is where a professional's actions are "accepted professional practice", they're likely to be protected from a negligence claim.

It's more that MakeUK is still, even after the FWS case, publishing duff advice on their website about letting trans staff use the single sex spaces of their choice/gender identity, not biological sex, that a claim might arise...

I've just gardened for Sara Morrison this evening , it's still open.

@Contemporaneouslyagog Yes, it's still open and I expect Sara will be donating anything left over to other similar cases, as is usual for such crowdfunders. There are, unfortunately, others who do not yet have enough funding so I'll be donating direct to those cases.

PAvel S is a solicitor I think. Simon Cheetham is supposed to be pretty good so I'm a bit worried about this one. The CLC legal team is not in the same league as Naomi and CHarlotte I'm afraid.

Hopefully they will have the sense to ask Michael Foran to sit in - he has certainly helped in other cases.

I would agree if it wasn't for the fact that the Equality Act specifically contained exemptions along with examples, that precluded transexuals (language of the Act) from women's single sex spaces.

Stonewall deliberately introduced gender identity rather than transexuals and ignored the exemptions. And interpreted the reasonable and proportionate test to mean as long as it's not unreasonable or disproportionate for trans people. Then they proceeded to give out prizes for organisations who followed their illegal advice.

Any reasonable employment lawyer would go to the legislation and see what was written and advise accordingly.

We have been campaigning against gender ID since before 2018 when the Scottish government was trying to get gender ID through the back door. Forstater was being pled in 2019.

Make UK should have had more sense than to follow Stonewall law.

Unfortunately Michael Foran has now taken up his new post at Keble College, Oxford, so will be both too far away and far too busy to be able to help out here. The July hearing in the Sandie Peggie tribunal was after the end of term and he was still in Glasgow then.

Stonewall we're also heavily pushing the interpretation of 'case by case" re reasonable and proportionate in the EA to mean that you had to apply the test to each individual person rather than each situation.

Even if people were unclear about the status of a GRC until this year, wasn't the law clarified re: those without a GRC back in 2022?

Did the EHRC update their guidance then?

It's wasn't just Make UK, Stonewall, every NHS Trust, ScotGov, the Senedd, most Universities, the MOD, courts, etc. FWS lost prior to the SC. AL was not going to find advice anywhere that dissented. Arguably he should have gone back to first principles, they all should have, and looked at the legislation. Realistically, and obviously in practice, no-one's going to do that.

Even after the SC clarified everything for the hard of understanding many places are waiting for the EHRC guidance. Or (strangely I have more respect for this stance (respect meaning a hair above utter contempt)) have flatly said they're going to ignore it.

'Everyone else was doing it' is no defence, but I'm not sure if there's been a situation where 'everyone' had the caliber of this 'everyone'. Possibly (sorry this seems hyperbolic but it's all I've got) Nazi Germany, what you think would be unthinkable becomes normalised.

I watch interviews with GC people and I can feel it on my own face. Alongside the anger, the sadness, how I'm utterly dumbfounded that this batshit gender ideology got everywhere. That people I thought were intelligent, kind, espouse it as though it makes any kind of reasonable sense.

@NotAtMyAge
I am aware that he was asked to look at Sal Grover's most recent case
... after his pretty brutal analysis of the first one.
if the Darlington team are sensible they will let him review skeleton points before the hearing to make sure the best emphasis is applied

@Talkinpeace that could certainly work if he has the time. My post was in reply to one suggesting he might sit in on the hearings (presumably either in person or as an observer) which would be impossible for him given his work commitments.

Yes I wondered about the EHRC guidance too. The old guidance has been withdrawn but FWS had already gained clarification about people who don’t hold a GRC.
Even the Counsel for Scottish Ministers stood up in the Supreme Court last year and stated legally a trans woman without a GRC was a man! That was already accepted in law

I suspect the chair has been trying to wrench the wheel around on the tanker their entire time in post, and it's been a very long, slow, hard job.

Sorry, I was wrong. The JKR retweet was from 2024, before the fund was launched.

Rather than update their guidance post-Haldane, EHRC elected to concentrate on lobbying ministers to disapply the GRA to the EA altogether, because the two tier GRC problem made the whole thing so unworkable. With hindsight, maybe it would have been more fun to write it anyway, in a really sarcastic tone of voice..... You must have a certificate to use the changing room! Who's got a certificate? Nobody knows!

It does seem a bit of a stretch to argue that no legal experts could possibly understand the implications of the Haldane judgement without EHRC guidance.

I don't know why, but everyone just carried on arguing for inclusion of non-GRC holders under the heading of indirect gender reassignment discrimination. Maybe because Haldane didn't stress the Schedule 3 consequences in the way the Supreme Court did. This will carry on being relevant because respondents will keep arguing that they followed what was thought right at the time.

The only explanation I can give is that if you have done enough mental gymnastics/had enough "training" aka indoctrination to convince yourself that
a) TWAW in all circumstances and
b) women's objections are motivated by ignorance/bigotry/prejudice, then it might feel as difficult to change course following Haldane/EHRC guidance/Forstater/FWS and it would be for one of us to stand up and sincerely argue for Stonewall law. I do think this is why so many people on the other side of this claim that GC campaigners are aligned with the right-wing - because that emphasises (b).

It's possible that all these bodies and advisors just kind of thought that eventually the law HAD to catch up because that was the way the world was going. So it was ok to get out in front of it because that's what should be happening and the law would be updated eventually to reflect "reality". Add to that the gaslighting by every HR and diversity training group, every activist group in the country, every media outlet and TV show and social media group think and you have a perfect storm. Nobody wants to be the tall poppy who has actually read the law but then gets shouted down by the younger people in the office as a bigot, deemed unsafe, dragged on twitter, etc.

Look how many of us over the years have been afraid to have our names and employment doxxed - because we all knew there could be real consequences to be willing to say that sex is real and it matters in some circumstances! And those real consequences kept a lot of people in line, for a long time, regardless of the actual law.

When you have all 3 political parties apparently backing your cause of introducing self-ID, other countries like Ireland and Australia passing self-ID laws, the US government under the Democrats going the same way...it must have felt like an absolutely guaranteed conclusion that Stonewall's interpretation of the law would eventually prevail and all this outdated stuff like the H&S legislation and the EA would just go away, or be reinterpreted as wherever the legislation says "women" it would officially be read as "ciswomen and transwomen". Australia did it and we came perilously close when the Tories consulted on GRA reform in 2018.

@FortheloveofPetethePlumber I think it was in June this year when Baroness Falkner got quite emotional at a commons select committee saying her staff had been bullying her, or briefing against her or something along those lines. You can imagine she's been fighting for years and years to fight this internally.

This is from 4 years ago and she was fighting already at that point - fascinating to read the comments as they were in 2021 on there:
www.reddit.com/r/transgenderUK/comments/twuy6r/baroness_falkner_on_womans_hour_today/

There is, sadly, a difference between law and real life. I don't know if it's getting worse or if I'm just noticing it more, but you only have to look at things like statutory guidance for SEND and what councils and schools do to see it. Or the NHS Charter and what happens to patients.

Thoughts and prayers for Andy Letton and Leonardo exec. www.bbc.co.uk/news/articles/c306ejmz05mo.amp

And they were vandalised again over the weekend, but I was sure Andy was so convinced that everyone except Maria was happy, happy, happy....

The vandalism isn’t connected with this, is it? It’s related to their security/military role.