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

I hesitate to correct Naomi, but there certainly isn't an over provision of accessible toilets in the South West of England where I live and it's not just about employers. It's about being able to go out like anyone else and use a loo when I want or need to. Not giving them up wholesale doesn't mean not giving them up to yet another group who'll feel entitled to them.

I won't go any more off topic because it seems to be too much to expect people without a disability to understand. I hope you never have to find out how much thathurts and how your life shrinks down and down and then watch people advocating taking a bit more of it away under the guise of recovering rights for some women.

I think the biggest issue with an exception, this example of accessible toilets in private workspaces being used fir an additional function being one, is that it feeds into that wider culture of these toilets not being just based on accessibility and need.

It will drop feed wider into how the general public view them and I think @Easytoconfuse is right to be concerned if this is the angle being argued.

Accessible loos are there to meet a specific need. If trans people are so unable to use the facilities for their birth sex it should be for them to resolve by arguing for the space they need. But for spaces not designed for that need to be handed over.

It’s both offensive when considered as disability discrimination (reduction in service), and also offensive by nature of still giving them some special status because of their view that they want to be the opposite sex. They don’t NEED separate provision. They WANT it. It’s up for that group to articulate and advocate why that WANT warrants additional provision. Not for accessible toilets to be ceded to them.

I think Naomi was talking specifically in an employment context¹. And I can see why it might be the best argument for this case. But it's one I don't like seeing made because it will inevitably be extrapolated to situations where it's not suitable - including public loos where there definitely isn't an oversupply. And I agree it reinforces and legitimises the waving aside of the needs of disabled people.

¹ Where it might be reasonable on a case-by-case basis, if the specific employer meets a series of 'if' tests. (Something along the lines of doing the usual calculation for number of accessible toilets needed, then doing the same calculation for number of 'unisex trans' toilets needed, adding the 2 numbers together and making them all accessible - rsulting in more rather than less provision for the disabled people who actually need them. Funnily enough, I have a feeling that sort of expense might make employers rather less keen to wave the trans-inclusion flag.)

also offensive by nature of still giving them some special status because of their view that they want to be the opposite sex. They don’t NEED separate provision. They WANT it. It’s up for that group to articulate and advocate why that WANT warrants additional provision.

Agreed!

It might catch on, don't get caught out by the 'surge' pricing at peak times

I know the tone of the thread was a bit more jovial earlier but the case is obviously a serious subject. There is a short and unpleasant history to disabled toilets - they haven’t been around that long. They are misused because of their design (mixed sex, private, large space). Because of their design they are out of order a lot, and used for other purposes (rough sleeping, storage). It has to be remembered that are the only toilets most people in wheelchairs can use.

They were renamed ‘accessible’ so people don’t have a go at people without wheelchairs that genuinely need them and ‘disabled’ being an emotive term. But they are the most important toilets of all. They should be the most respected and cleaned toilets. They also benefit society in general in so many ways not least they enable society to see people in wheelchairs and it be normalised for planning to be accessible for everyone. Any of us could become a wheelchair user by tomorrow. I have cared for two wheelchair users and so know about the extra worry and hassle planning where they are going. It is made easier by details on websites showing details such as which side the transfer is on as there’s a lot of factors to consider. It shouldn’t be this much of a battle.

From my research most men who don’t want to be men will not want to use any mixed sex toilets and protest. Most women who don’t want to be women want mixed sex toilets as they don’t like the men’s but, there is evidence that after time, depending on how bad the mixed sex toilets get, they will start using the women’s again. Young women (and their parents) protest for gender neutral toilets then a few years down the line they are using women’s. I also know a lot of people have problems with urgency and need sanitary protection when they have had genital surgery (irrespective of the reason for surgery).

Ambulant toilet designs can take away some of the congestion. But not for people in wheelchairs. They are ‘stuck’ with one toilet design. You can’t identify out of it and some of the language used has been disgustingly belittling of accessible toilets and their users.

This is a new problem. Men and women using each others toilets was not even discussed in the 2008 government documents on public toilet provision (and they didn’t hold back with views on sex, drugs etc). There was a lot of talk about disabled toilets and assisting disabled people in that report and it seems we are going backwards in provision - we seem to have become more prudish about discussing toilet problems.

Can I take this opportunity for a shout out for ‘Euans Guide’, particularly their campaign to make sure the red emergency cords aren’t tied up and disabled toilets are not used for storage. This is the kind of practical stuff disabled people have hassle with all the time.

Rather than create more mixed sex ‘gender-neutral’ private toilets I think one way forward is to design in single sex toilets for wheelchair users within single sex provision. For those disabled people who don’t need carers, (or carers of the same sex) it would give them the health and safety benefits, independence and dignity that able-bodied people enjoy in single sex toilets.

It took years to get women’s loos. It took much longer to get disabled loos. And yes, wants and needs are completely different things - for such wants by so few people to potentially change provision* across the country on this time scale is quite staggering.

*in terms of the massive introduction of ‘gender neutral’ loos

In Portugal the cord doesn't hang from the ceiling, it is threaded around the room on the skirting boards at about 3cm above the floor. It is accessible for those on the floor and not able.to be tidied away.

By contrast, the toilet on my hospital ward has the cord dangling right in front of the toilet - imagine sitting on the loo with the cord dangling between your legs in front of the toilet bowl. It's very inconvenient but absolutely vital that it isn't tidied away because many patients need to call for assistance to get back to bed.

That’s really interesting. Thank you.

@Keeptoiletssafe - thank you, you have explained it so accurately.

It is incredibly distressing to realise just how quickly other women are prepared to give away hard fought provisions made for disabled women. As if we need a reminder of just how little we matter to society in general, and non-disabled women in particular (in this case).

In my experience the emergency cord is usually offset so doesn't get in the way, so having it placed as in your example is crap design!
But how often do you find that the emergency cord, which has to be accessible to someone who has fallen on the floor and needs assistance, has been used by someone to practise their knot-tying or macramé skills?🙄

Thank you. In fact, a hundred million thank you's for saying this when I needed to hear it.

Wednesday's Tribunal Tweets are linked from their substack now
https://tribunaltweets.substack.com/p/kelly-vs-leonardo-uk-ltd

That Portuguese cord system sounds brilliant.

I think this discussion has uncovered one of the flaws of a case-law based system rather than a purely legislative one.

Legislators [should] consider all aspects of a question, how it applies in different - including worst-case -scenarios, knock on effects and unintended consequences. Their job is to come up with law that works in all circumstances, for all people.

The purpose of litigation is very different from the purpose of legislation. Although it may end up creating case law, a barrister's job is not to consider all these things; it is to win the case in front of them. And that may often be incompatible with, or at least not fully aligned with, the greater good.

She is not talking about South West of England. She is talking about this particular place of work.

I know that, thanks. I also know that this is the sort of case that sets precedents and I don't think it's right that the one she's setting is 'anyone who doesn't like sharing with transgender can use the accessible facilities.' We already share them with mops and spare loo rolls and people who want a bit of extra space, and we don't have anywhere else to go.

Transgender people are talking a lot about not being able to participate in everyday life. No one, strangely, seems to think that this solution will do the same to people with disabilities.

Our local pub grub eatery and soft play venue has awful toilet accessibility and hygeine in the accessible toilets. Lovely in the standard WCs though.

I've complained twice!

In the soft play there are 2 toilets, a normal WC, with a toddler step etc. All normal so far. A bit narrow, definitely can't get a buggy in but its in like an enclosed space anyway where nobody can see (under some angled stairs with walls round it), so absolutely no need to take a pushchair into that toilet.

Next to it however is the accessible toilet. Problem number 1. The baby change unit. It doesn't lock in an upright position, it flops down, and the door opens inward so unless you have the mobility to hold the door with one hand and shove the changing unit up with the other you can't get in. Ditto on the way out, what a fire hazard it is. Problem number 2, parents also use it as a toddler/child facility so they tie the cord right up and out of the way so their darling little children don't pull on the fun red cord. I noticed their hourly cleaning rota didn't also include untying the cord after spending an ungodly 3 hour session using their facilities.

I emailed them photos and the response I got was that there are other accessible loos on site in the pub bit. All well and dandy but to get out of the soft play area, to the pubs accessible facilities, you need to be able to reach the mag-lock release button for the childproof gate which is situated 6 foot in the air. Not a fantastic set up if you're busting, your catheter is overflowing, or you want to feel like a human and have autonomy when all of these issues could be rectified by them simply ensuring the accessible toilet in the soft play was actually accessible. They also promised me they were sorting the baby change unit out but over 2 visits a month apart they had the same issue.

Then the accessible toilet in the pub is the closest to the bar, and is used by pissed up men who participate in their own hose pipe competition. A she-wee could never reach the heights of the piss on those walls. I could never work in a pub or a restaurant because I imagine this isn't even a remotely isolated incident, and I feel for the staff that have to clean up after them but like, why can't they just leave our toilets alone? Even the radar key system has gone to pot seen as you can just buy them off boots and amazon.

Thanks @WFTCHTJ for the posting the link to Naomi C's submissions- a brilliant, clear summary.

Really useful it's now available on the TT substack as her arguments can be repeated by women across the country reminding councils/ employers to respect our legal rights and bodily privacy. (Even though it still shocks me unions etc are trying to undermine womens' human rights and the SC judgement in so many places!).

Sadly I think we'll be seeing more legal cases though.

Ssh. We don't want people to know that! Otherwise, totally, tragically right right. Can I add trying to get the door open with arthritic hands? Why do people think bolts need to be small?

Naomi is talking about one workplace where there may be no-one in need of a toilet that takes a wheelchair.

Publicly available accessible toilets are a different matter as they may need to be used by a disabled person at any time. There needs to be more of them but not shared. More ambulant toilets would help ensure accessible ones were not used inappropriately.

It is interesting as a side point, that accessible toilets in places of work are not being used by disabled people because there is a lack of disabled people working or visiting there. There was an article in the Spectator discussing how the new ones at the BBC were widely known to be used for sex instead.

my friend works in a 16-18 year old 6th form college, she says the disabled toilets are used for sex there too.

The precedent in this case would be where there is an oversupply of accessible toilets even when trans employees are using them, then it is ok for trans employees to use them. (Though this court doesn’t set legal precedents).

But the real issue here is a failure to interrogate what ‘trans’ actually is. It seems it is, by turns, a belief system, a sexual fetish, and a mental health condition.

Clearly, no one should be required to accommodate someone’s sexual fetish and this includes being required to use female names or them being allowed to wear female clothing at work. Nor should concessions be made to allow them to stay ‘in character’ of their fetish - including accessible toilets. They wouldn’t want to use accessible toilets anyway as they defeat the purpose of the fetish which requires access to non-consenting women. The movement almost got as far as openly arguing directly that sexual fetishes must be supported in the workplace but hadn’t quite got there, but it was this clear intent that caused a public backlash.

As a belief system it is a bit more tricky but gender ideology hasn’t actually been assessed to determine if it is WORIADS yet by court. I would argue that we do not even have a democratic society if we say others must lay aside reality to uphold someone else’s belief.

But if it is considered a mental health condition that requires hugely invasive harmful ‘treatment’ as the NHS seem to think, then they would be entitled to access accessible toilets in their own right - as individuals disabled by a mental health conditions.

They feature on Everyone’s Invited website too.

You don't know that there's no one there who needs an accessible toilet, which isn't the same thing as being in a wheelchair. Or that they might come to work there in the future. What I do know is that disabled people are often ruled out of working because of a lack of accessible facilities. Then they're demonised for it as scroungers.

The Darlington nurses just want a private place to change. Maria Kelly just wants privacy when she needs the loo. You support that. A lot of disabled people need a place they can use when they need to. It's so sad that people not only can't seem to support but that need, but are telling people who share lived experience that it's not that bad or doesn't apply in this case.

It's time for me to walk away from Mumsnet for a while because I don't feel I belong here.

You don't know that there's no one there who needs an accessible toilet, which isn't the same thing as being in a wheelchair. Or that they might come to work there in the future. What I do know is that disabled people are often ruled out of working because of a lack of accessible facilities.

And if that need arises from a mental health condition?