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

My LA seems to have closed all the public toilet blocks. Some have been shuttered, some demolished, at least one repurposed. This started and finished years ago. Initially they had agreements with nearby businesses that anyone could use their facilities, not just customers. There were signs on the former loo doors informing the desperate of their new options. I assume the businesses got a stipend from the Council. Of course time has passed. The signs have gone, in many cases I suspect the businesses have gone, the toilet provision remains gone.

I had to leave to bring in my washing as it started raining. Is this a break?

OK - it's back now.

@MarieDeGournay I think you're right about accessible toilets, didn't NC make that point that MK and other women wouldn't want to deprive people with disabiliites? I might have remembered this wrong from the earlier evidence but Leonardo could have said "we looked into it and we don't have enough access for people with disabilities, or we think it's wrong for able people to use them,. so we decided transwomen using the accessible toilets wasn't an option". Only they didn't did say that.

Instead Leonardo thought it was better for lots of women who couldn't or didn't want to use mixed-sex toilets to use the accessible toilets, instead of the very tiny number of transwomen.

And, of course, most of the businesses that did that didn't have disabled facilities. I must have missed the howls of anguish from the great and good about how disabled people are shut out of public life by things like this and not being able to use trains or even get into shops. Or, alternatively, people with disabilities are less important that the tiny transgender minority. Really cross about this (in case you couldn't tell!)

Thank you!
I'll stop arguing now, and I'll just sit seething in a corner for the rest of the tribunal
edited to say 'for the rest of the tribunal today' - otherwise I could be committing myself to sitting in a corner for 40 threads or more😁

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

Isn't it true that in an ideal world, all sex-segregated toilets would be accessible for people with disabilities, and there would be no need for separate provision? Am I wrong to think that having specific toilets for disabled people is a concession to a very non-ideal world?

Whereas in an ideal world, all toilets would remain sex-segregated?

I may be wrong here, but I don’t believe there is any requirement for designated spaces accessible to disabled people only. The requirement is to provide sufficient spaces accessible to disabled people so that they are not disadvantaged. In practice almost all disabled toilets in places I have worked have been multi-functional and explicitly accessible to all employees.

So while I absolutely get the push back on this particularly in terms of public loos, from a legal perspective using accessible toilets is an entirely legally valid solution. It’s important for NC to be able to show that there was a way for Leonardo to meet all their legal obligations including providing safe toilet facilities for women, TIMs and disabled people.

wrong thread

Accessible toilets are mixed sex/unisex/gender neutral to allow a carer of the opposite sex to assist a disabled user.

Or perhaps they presumed that almost no women would want/need single-sex facilities. They ignored their own survey about unisex facilities after all.

Some of the accessible toilets at my workplace are single user / unisex rooms, others are larger cubicles with handgrips etc in the women's toilets (and presumably in the men's too, I wouldn't know!) None of them are RADAR locked and they don't require an "official" disability. Nor should they - what would that look like? I do expect people to dive in and use one if e.g. age or a health condition means they can't get to a "non accessible" one in time. That should not need special permission from HR!

What's expected of the company is that depending on the balance of people working there (or interested in working there!) they meet everyone's needs under Heath & Safety and the Equality Act 2010. And that complaints are all dealt with properly, whether that's complaints about lack of facilities or poor policies and labelling or even complaints about individual people taking the piss. (Sorry, couldn't resist!)

I notice that the judge is not asking KW as many questions. Don't know if that is good or bad.

Well quite. Trans ID men and women can still use the facilities for their sex. My personal view is they do not need to use the accessible spaces, unless they also have a disability or access need that means they are also included in that protected category.

They have provision. The fact that they don’t like it is their issue.

Please may I ask two questions of all those who think that using accessible toilets is the answer?

What happens to the disabled person when the accessible toilet is being used by the special ones or those who want a safe space? Please bear in mind that they often can't use alternatives.

If it is wrong to take facilities from women and give them to men who want them, why is it not also wrong to take facilities from disabled people to solve a problem? Please bear in mind that some of us disabled people are also women who deal with humiliation in so many other ways when dealing with a world that would rather we don't exist.

It’s annoying how ashamed of their biology they are, but also super proud to be trans. No one else is running around cheering about being a man or a woman. They just crack on with life.

Using the right bathroom is no bother at all and is the kind of considerate, thoughtful behaviour you expect from a grown up.

I’m talking strictly legally here. There is no obligation for there to be an accessible toilet that is 100% guaranteed to be free at all times. It is considered legally acceptable for disabled people to occasionally have to wait to use the loo. The fact that disabled people frequently can’t wait as long as non disabled people should be taken into account in the number of accessible facilities available in order to not cause disadvantage but still does not mean they should never be full. In most workplaces the small number of TIMs or TIFs also using disabled facilities would still mean that the provision of accessible facilities compared to the number or users was well above any legal requirement and comfortably above any social expectation. I fully accept that public availability is a completely different matter and frequently appalling.

super proud to be trans

while simultaneously reluctant to use the toilets appropriate to their sex as it would be 'outing.'

I’ll play steelman, @Easytoconfuse. Trans identified people have identified as having a type of disability, and their safety a dignity balanced with that of other people is net served by giving them access to disabled loos. Once we remove the validation of access to opposite sex loos, the number of trans identifient males who suddenly discover an uncontrollable need to avoid the appropriate toilet for their sex will diminish, so the total load on disabled toilets will remain low and disabled users will be mainly unaffected.

(Not a fabulous effort, but I’ve tried.)

What is classed as lockable? That when you push a door it shouldn’t open? That no one can enter it? I think people think ‘lockable’ means the latter but it doesn’t with public toilets.

Mixed sex cubicles are notorious for boys letting themselves into the girls. They just have to know the mechanism (coin, hinge). The other trick is to push the girl in while she’s coming out and close the door.

Document T (similar safety instructions have been around for years):
2.4 The door to a toilet cubicle, a toilet room or a universal toilet should meet the following.

1. Not obstruct emergency escape routes when opened.
2. Be fitted with light action privacy bolts operable with a closed fist and operable by people with a variety of dexterity or strength combinations.
3. Be capable of being opened from the outside if a person has collapsed against it while inside the toilet room or cubicle.
4. If the door is inward opening, have an emergency release mechanism so that the door is capable of being opened outward, from the outside, in case of emergency, such as when a person has collapsed while inside the toilet room or cubicle.
5. Be as light in weight as possible and, if required to self-close, be opened using a force at the leading edge of not more than 30N from 0 degrees (the door in the closed position) to 30 degrees open, and not more than 22.5N from 30 degrees to 60 degrees of the opening cycle.
6. Open with one hand using a closed fist (e.g. a lever handle).
7. Adequately resist the passage of sound in toilet rooms.

That’s just one of the reasons it’s a safeguard to have door gaps so the occupant has some warning who is about. Anyone can left themselves in. I saw men’s feet waiting right by my door when I was in a cubicle. It was the days before I had a phone. I froze but I heard another lady come in and Mr Brown Loafers ran out. I opened the cubicle and she told me she was shocked and was peering under the doors to see if there were more men in the room but it was only me. l waited for her to finish and we went out together. Unless he had a desperate need for that cubicle I have no idea what could have happened.

edit: didn’t mean to attach that quote. It was just that I hope people understand the meaning of ‘lockable’.

So it looks as though the Trust are going to say that all this has been inflamed by lawyers and nurse antipathy towards RH. As to the changing room policy, maybe they'll say we were wrong but folowing advice, and the nurses got carried away and made it all seem worse than it was. But the remarks of HR telling them to be more inclusive? are they going to deny that was said? Is this why we have the Hutchinsons tomorrow morning? if not, it may mean that it's in the witness statekments and the Trust are not disputing that it was said.

I agree with you morally but I suspect others may be correct about the law. (IANAL.) I do know that there are some unique provisions about the PC of disability. My issue is that everyone has a sex and people who claim a "trans" identity have no need of special provision for that reason. Many such people use the facilities intended for their sex anyway and I don't want society to accept the idea that "transness" is a real thing which requires accommodations in toilet provision or in sports. Distress, etc, can be real but "trans" isn't.

Wrong tribunal thread?

Both @AirborneElephant and @BendoftheBeginning have provided some good responses. Policing access to accessible toilets is hard enough at the best fo times, but depending on how far down the 'transition' a person is, they may well have need of a disabled/accessible loo for legitimate purposes.

I think there would need to be some nuance in terms of the level of provision, too. I would expect that in, say, a refuse depot there would be more male provision than in, say, a pre-school nursery. There should be male, female and accessible provision in both, but the levels of that provision would be different. Companies should have a handle on their staff numbers and provide adequate provision, and ideally have some sort of capacity to adapt where necessary.

Sorry, wrong thread

Valiant effort, but it's not at all clear that they identify as having a disability - and even if they did, identifying as disabled means they don't actually have a disability.

There are too many! I have multiple tabs open - it’s so confusing.