Kelly v Leonardo Employment Tribunal Thread 4

[ickky]

The Tribunal has now finished and we await the judgement.

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

Thread 3
https://www.mumsnet.com/talk/womens_rights/5421183-kelly-v-leonardo-employment-tribunal-thread-3

I am guessing that the concern would be the attention this decsion would get if SP wins against NHF Fife. Compared to NHF Fife this has not had the same level of media attention, getting this decision out early ensures it wont catch fire in the media. Lets face it, one the Fife decision is out it will be big news no matter what the decision.

You have a lovely turn of phrase, Alpacajigsaw, this made me laugh out loud😂

I remember when FWS won, people were saying that this was just the beginning and we still had an uphill battle. I guess this is proof of that, and it will continue to have to be fought in the courts. A SC court judgement should give us reassurance, but as pp mentioned, if this ends up at the ECHR, then its bias, will be a concern.

And it worries me that in future we could end up with the Green Party in power as part of some "progressive" alliance. Although perhaps that will force the issue and the other 80% might pay more attention to what is going on. And I think increasingly people are becoming fed up with the aggressive tactics of trans activists.

They must provide the separate facilities - the discretion applies to who can be allowed to use opposite sex facilities as a special exception.

Not saying I agree, but the special exception concept exists eg to very young males in Schedule 3 facilities. J thinks employers can do the same for its trans employees, and EA2010 doesn't apply.

I think it falls down because of her 'moral propriety' idea - because it puts non-believers in transgenderism at a disadvantage, illegally.

I am unsure how much, if any, of Document T would apply to Scotland. However in Scottish regs there is a mandatory requirement to have safe toilets and all toilets should be able to be opened from the outside (like Doc T). So ‘lockable’ is subjective.

What could be interesting is that Document T was clearly commissioned as a way of trying to sort out these problems. So it could mean differences between England and Scotland. Good luck saying to Kemi that men and women mean different things in Document T. That is retrospective though, that’s for all new toilets and refurbs since 2024.

I remember when FWS won, I said thank god I don’t have to talk about toilets anymore.

Yes. It is an utterly ridiculous (and desperate, perhaps even specious) approach to interpreting the law and in any event, it is not legally coherent that earlier subordinate legislation should have a conflicting interpretation with later primary legislation. The latter has to govern the former, both in terms of time of creation and in the legislative hierarchy.

But surely she is incorrect about the discretion as the 1992 regs do not give provision for any discretion, do they? The regs state seperate facilties and if those are not feasible then 'unisex' facilties but they have to meet the specific design requirements and the Leonardo loos dont meet those requirements...or have I got that wrong? Surely its not 'Regulations' if you can have discretion about applying them, unless the regulations themselves highlight certain parts that are discretionary ? It would be guidance then?🤔

Is she stating the law as she would like it to read rather than what it actually states? A bit of Stonwall's 'getting ahead of the law'?

I am waiting to hear back from the Ministry of Housing, Communities and Local Government about similar. I wrote to them last month saying if you have a case-by-case basis you either make every design mixed sex (even just economically that’s a nightmare) or you keep provision as it is with all the single sex designs being mixed sex without risk assessments/ equality impact assessments and rewrite health and safety legislation, building regulations and standards BS6465 and the Sexual Offences Act (2003) may need refining. The HSE told me to write to the MHCLG and did not give any thoughts.

It would be incredulous if men were using ladies toilets and women were using the gents in 2008 it would not have been discussed in a lengthy report, the governments ‘The Provision of Public Toilets’. There’s lots of sex and a bit of drugs in that. And comments about unisex toilets being worse for women.

This.

@prh47bridge Adding my own appreciation. I was very much hoping you would add your always insightful views. 🙏

It is always interesting to me to see how HR and law firms report on tribunal outcomes. This one is being treated quite cautiously, eg: https://www.personneltoday.com/hr/engineer-loses-sex-discrimination-claim-over-toilet-policy/

Jo Mackie, employment partner with law firm Michelmores said: “On the face of it, this does not apply the law after For Women Scotland, and finding the risk of an assault, however small, as a proportionate means of achieving a legitimate aim is an interesting decision. I am sure this will appeal and we will see strong opinions on both sides.”

and finding the risk of an assault, however small, as a proportionate means of achieving a legitimate aim is an interesting decision.

I know it's not funny really but that did make me laugh

I think Sir Humphrey would describe it as a "brave decision".

Agreed.

utterly fucking awful.

No one should need to complain.

Keep your man-self in the man-room.

I'm looking at paragraphs 207ff of the judgement. The judge draws attention to the fact that regulation 20 in the Workplace regulation is split in two parts. She says that the requirement to provide separate toilets for men and women is in 20(2) and is absolute. But she says that refers to physical estate only. She says that any requirement to police or manage who uses which toilet falls entirely under 20(1), that requires the broader duty to provide "suitable and sufficient sanitary facilities".

She also says that the Approved Code of Practice from the HSE "does not articulate any requirement to control access to the toilet facilities. Accordingly, any requirement to control access (presumably through effective and enforced policy) must therefore be limited to what is reasonably practicable for the purpose of ensuring health, safety and welfare (including their bodily privacy) and moral propriety."

Then she can use her own opinion of what is both proper, and practicable to argue that trans identifying men can be permitted in the womens' toilets.

Personally I think that when 20(2) requires the employer to "provide" separate toilets for men and women, the extent of that provision goes beyond simply building them and putting stickers on the doors. I don't think it's very hard to see that if an employer has a policy of allowing any men to use the toilets "provided for" women then de-facto they are no longer "provided" for women. I think the extent of provision in 20(2) goes further than bricks-and-mortar and includes policies both written and unwritten. I think the judge's interpretation will fall on appeal.

Would this judges other interests fit the circumstances for recusal for bias

There are some good points in there though. For instance, if men are allowed in the women's, and women are allowed in the men's, then it's hard(er) to argue that women are being disadvantaged more than men are.

Also - regulations (up until Document T, I think) allow for single-occupant toilets with mixed-sex hand washing facilities. An argument that menstrual blood requires women to have single-sex hand washing facilities (and that without which they necessarily will succeed in a claim for unlawful discrimination) would require all such previously-lawful facilities to need rebuilding or refitting. I don't think a court is going to rush to that conclusion.

If chickens are allowed in the fox enclosure, and foxes are allowed in the chicken enclosure, is it hard to argue that chickens are being disadvantaged more than foxes?

It falls down on Health and Safety because the designs for a single sex toilet are not the same as the designs for a mixed sex toilet. Although they all have to have doors you can open from the outside, the mixed sex toilets have to be enclosed and completely private. That is worse for women, children and medically vulnerable for safety reasons.

Health for example
https://salus.global/article-show/pathogen-findings-raise-concerns-about-move-to-unisex-hospital-facilities

@MyAmpleSheep ’Also - regulations (up until Document T, I think) allow for single-occupant toilets with mixed-sex hand washing facilities’. I don’t think this is correct. Document T is not applicable in Scotland either which I believe this was in.

It's easier if you present the court with solid, reliable, well-sourced data on the danger chickens pose to foxes in fox enclosures vs the danger foxes pose to chickens in chicken enclosures.

It gets harder if you also find that foxes attack other foxes in fox enclosures, and so that chickens in a chicken-only enclosure are already at a positive advantage to foxes in a fox-only enclosure.

Especially when it’s a hidden, sound resistant enclosure for one.

I don't disagree with you on points of fact, but I don't think anyone put those facts before the tribunal in this case.

The wider point is that where a regulation more or less explicitly permits a particular toilet and washing facility arrangement, it's a tough row to hoe to use a different regulation or law to hold that particular toilet and washing facility arrangement to be unlawful.

Yes, it seems a bit disingenuous to say you have to provide separate toilets but hey, who knows what happens after that?
It seems obvious that if an employer correctly provides separate toilets, correctly signed as being exclusively for women/men, they should expect their employees to use the facilities accordingly.

They can't police who uses which, but they can and should clearly state that it is company policy that single sex toilets are to be used according to biological sex, not according to individual choice.

A male employee who persists in using the women's toilet would be refusing to comply with a clearly-stated policy. An employee who persisted in parking on a space which was reserved for deliveries would be told to stop, and would face some kind of sanction if they refused to stop, so the same should apply to the man using the women's facilities.

I think all that was expected of employers in the wake of the SC judgement was to assert that they were following the law and their single-sex toilets were separated on the basis of biological sex. Nobody expected them to have a security guard with a swab kit at the door, but it wasn't too much to ask them to assert the rules, and be open to dealing with complaints about persistent cases of breaking the rules.

Not the free-for-all that this judge seems to think is OK.