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

J/NC: Agree R accepts was in place from 2023. NC maintains in place earlier because tacitly accepted

NC: Unfair for R to say it was accepted by by claimant or she would have complained earlier.

NC: In Equality Act: harassment related to relevant protected characteristic of sex. R denies. NC remarkably little evidence from R because there is not much they can say - Mr Letton said policy applied since time immemorial. Distress to claimant palpable in tribunal and must have been in course of grievance process. Plainly caused distress, humilating environment. As reasonable for C to experience harassment from a Tim as it would be if Mr Letton used womens toilets.

I apologise.

No need! Maybe I'm wrong?

Not providing transcript, but will stop and post later to be safe.

I got carried away, completely my fault. @unwashedanddazed is right! I didn't plan to make such detailed notes, but they help me concentrate, so I carried on and got carried away.

But disclaimer still applies (to anything I say!) that I am not trying to give live report as I haven't thad access to submissions, and my reason for labouring this point is to say to anyone reading this thread on or after 24 Oct., pls pls rely on Tribunal Tweets and not my ramblings!

Will keep some notes in a Word doc and post this evening if that would be helpful?

Breaking for lunch now.

Must say though, the Judge has the most fantastically expressive face and this should give great hope to all of us with non-poker faces that we can still achieve great things (if we work as hard as J has worked!) 😁

I feel like such a killjoy! Just didn't want to endanger our conversation here.

Sorry Nebulous. I have to say your summary is great. TT needs you!

I find the judge's face fascinating too. I think she has to restrain herself from nodding along at many points NC makes.

Definitely not being a killjoy. Getting us banned from viwing and/or discussing would kill the joy so thank you for raising it!

Hahaha for added joy, since TT are not live tweeting, if BoswellGriftsToday uses mumsnet to generate his AI summary for twitter, I hope my detailed account of NC's bare shelves make it into his weird account 😂

Would have been lovely if instead she got some v large posters of the anatomy of male and female genital and reproductive organs and hung them in front of the shelves. Or a lifesize poster of Mrs Pankhurst......

Back at 2pm

Just catching up and deeply disappointed to see NC saying

NC: undoubtedly TIMs have right to suitable space for their dignity, obvious answer is third spaces, pragmatic way of providing for TIMs is to give them access to accessible or disabled facilities. Recognise this may be unattractive proposition in some circles...

FFS! Et tu, NC?

Accessible facilities are for disabled people [aka 'some circles' ] who need them, and who campaigned for decades to get them. They are not a pragmatic workaround for men who choose not to use the men's toilets😡

Not only is this wrong - not 'unattractive', wrong - it also undermines the whole idea of certain spaces being designated for, and solely for, the use of members of specific groups.

Just as we want the spaces designated for women to be solely for adult human females, we also want accessible disabled spaces to be solely for disabled people who actually need them.

If allowing able-bodied TIMs use the accessible toilets designated for disabled people is an acceptable pragmatic solution, why not just let them use the toilets designated for women? They don't belong in either space.

What is the difference in principle between letting TIMs use the women's toilets, and letting able-bodied TIMs use the disabled toilets?

Well that's NC off my Solstice card list😒

@MarieDeGournay She is not expressing her personal opinion just arguments that can be won.

There may be occasions that a disabled loo can be used as a temporary measure, or where additional neutral facilities provision is not possible.

i dont agree with you that using lockable cubicle meant for disabled people is as bad as allowing men in women's toilets.

not the best solution obviously but better than Leonardos current practice.

In other words she is arguing they have no reasonable excuse

What is the difference in principle between letting TIMs use the women's toilets, and letting able-bodied TIMs use the disabled toilets?

I think the difference arises because of the purpose of the EA2010. In principle the Act is there to prevent things like separate toilets for different races, separate toilets for different religions, or separate toilets for for any protected characteristic. Sex is the one protected characteristic where some services can be provided separately or differently. The reason we're having such a hard time using the Act to get enforcement separate sex toilets is that it's an "equality" law not an "enforce differences" law.

The only issue with making accessible toilets serve also as gender neutral toilets would be if it resulted in an under-provision of toilets for the use of people with disabilities.

That is different from inviting trans people into opposite-sex spaces, which undermines the lawful separation for which single-sex facilities are established.

Appropriate separation-by-sex is present in accessible toilets because they are single lockable rooms. Provided that enough accessible toilets are present there is no detriment to people with disabilities.

Any action under the Equality Act would centre on under-provision resulting from trans use, just as it would if there was under-provision resulting from any other cause (eg use as a baby-changing facility, or simple under-provision for financial or construction-related reasons

@ProfoundlyPeculiarAndWeird has captured it well. I'm pretty sure I heard NC say that is was about the level of provision and there is generally an over-provision of disabled facilities.

I will post Tribunal Tweets' thread on here tomorrow when it is published on TwiX.

While the provision of toilets is subject to legislation, there is no law that says men may not use the women's toilets.
Until the TRAs started demanding access to women's toilets, it was always 'policed' by respect, not legislation:
'the good men stay out so the bad men stand out'

There is no law that says able-bodied people are banned from using the accessible toilets, but the same principle of respecting the space should apply, especially as disabled people who need adapted toilets have no alternative.

Respect for disabled people's spaces certainly shouldn't be suspended to provide employers with a cheap workaround. It may well be uneconomic to provide fourth spaces - not third - for trans staff, but it is not right to 'grant' them access to disabled people's facilities as an alternative. There are already toilets available for them, which they choose not to use. They do not need adapted toilets as disabled people do, they are perfectly capable of using the existing toilets.

It may be cheap and easy to say they may use the disabled toilets, but there is a principle involved here which needs to be respected.

I do not disagree with you in principal at all but it would not be a good legal argument in this case, as it seems generally accepted that a third space for trans is required.

I can think of a number of businesses near me that have space for only a single toilet available for customers, and so have made it an accessible one. Even if badged as accessible, it is not solely and exclusively for the use of people who are disabled. All users are equally provided for in that scenario.

I think the nature of all of these laws is to force businesses to increase provision, rather than to protect provision by restricting access - so, mandating businesses build enough male and female toilets in the H&S regs, build sufficient accessible facilities as per the Building regs, etc.

The guiding principle being not to put people with disabilities at a substantial disadvantage. As a result certain workplaces or locations need more disabled and accessible facilities than the minimum standards required in the Building regs eg. hospitals, the headquarters of the Paralympics, the offices of the British Disability Forum. If a workplace is trying to work out what to do with a trans employee, a unisex accessible toilet is an option so long as there aren't so many trans employees that it will affect the availability for disabled users - in the same way that if there are enough disabled employees the provision of disabled toilets may also need to increase to ensure availability for all disabled users.

A trans person using a disabled toilet at work doesn't reduce availability unless there are sufficient trans people and disabled people in that facility to then require more accessible provision to be provided by the employer. Given the tiny numbers of trans people in question this is unlikely to affect disabled provision in a workplace like Leonardo - I think that's why there were questions as posed at 12:07 above about numbers of trans people on the floor vs how many desks, how many worked from home, to assess whether this is a reasonable solution without disadvantaging employees with disabilities .

Whereas a male using a women's toilets that has multiple cubicles reduces their availability to all women, as it is no longer a single-sex space.

Thank you Marie for saying what I was thinking. Unless, of course, the loos should all need RADAR keys, because then the Tiny Transgender Minority wouldn't want them because they'd be outing themselves! It'd sort out the 'it's easier because I've got kids' brigade too.

There is a law that says men can't use women's toilets - it's that single sex toilets must be provided. If men are using those toilets they are no longer single sex, so the employer is no longer providing what they are supposed to in law.

I should say, if men are using the single sex women's toilets, they are no longer single sex. Obviously if men are using the single sex men's toilets then all is well.

This is why trans people should use the toilets of their sex, not their gender. (Segregating toilets by gender doesn't work if there are 100s of genders anyway!)

What kind of legal argument would justify disregarding the designation of specific spaces for disabled people?

These hard-won spaces exist as a result of decades of campaigning by disability rights activists, and are needed by the millions of disabled people in the UK - the census has 16 million, but not all of them need adapted toilets - for the sake of argument, let's say that only half of them definitely need accessible toilets because they are not able to use 'standard' toilets.
That's at the very least 8 million people who have no choice about which toilet to use, they need the disabled toilet - and there usually is only one available.

They are either for disabled people who need them, or they are not.
They can't be for disabled people, but also for some self-selecting 'special' able-bodied people who choose not to use the toilets designated for their sex.