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

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.

That is certainly a valid argument - that all single-sex spaces are discriminatory against men, because that enables women to be away from the violent sex.

If men have to be in with other men, then it's only fair that women should have to be in with them.

It obviously massively breaches all sane safeguarding and harm minimisation, but it makes sense if looked at from the point of view of discrimination only.

Except that the Equality Act explicitly made all the exceptions permitting that form of discrimination, knowing that "pure" discrimination legislation would have made such safeguarding problematic.

Yes, it seems a bit disingenuous to say you have to provide separate toilets but hey, who knows what happens after that?

By the same logic presumably construction sites have to have hard hat areas, but people don't actually have to wear hard hats in them - they just need to be hard hat areas.

And the face of Paul Eddington's Hacker who above all did not want to be doing anything brave. 🤣

She had added in 'propriety' hasn't she? It doesn't appear in Reg 20; it only appears in Reg 24 in relation to changing clothes? She's making an appeal to the transient nature of the social construct of propriety that isn't in the Reg she relies on for her argument.
https://www.legislation.gov.uk/uksi/1992/3004/regulation/20
https://www.legislation.gov.uk/uksi/1992/3004/regulation/24

This is the problem with building standards and whether they are enforceable or not. When part of my house fell down, I made sure it was inspected and the work was signed off by a building inspector. Venues aren’t following building standards or getting stuff signed off.

It’s important to know what the BS6465 was at the time of H&S legislation as that’s what legislators were working to. That was single sex toilets with gaps btw!

If you have two sets of regulations apparently saying different things, the regulations that are more specific to the situation apply. So, for example, the Building Regulations Schedule 1 Part T applies generally to buildings other than dwellings, care homes, schools, nurseries and prison cells. However, the Workplace Regulations apply specifically to places of work and an employer's duty to their employees. So, when looking at toilet provision by an employer, an arrangement that does not comply with the Workplace Regulations is unlawful even if it complies with Building Regulations.

That is why single sex toilets with door gaps are better for boys and men too.
Imagine you let your son go to a supermarket toilet on their own. Which design is safer? A male toilet that’s enclosed, a unisex toilet that’s enclosed or a male toilet that’s got door gaps?

My data shows which design is safer. The fact that we have exceptions for children going into toilets with their parents is right, but we need to also protect the child going into a toilet with any adult. That’s why a reason for more enclosed toilets shouldn’t be so a man can take a female child in there.

I hate talking about what I did in my previous post but I think Judges need to realise why total privacy isn’t safety.

I’ve collapsed in a loo, fortunately in my own house and fell with enough of a bang to wake DH up. On the odd occasion when I’ve felt unwell I’ve always headed to the bathroom or loo, not just because I’ve wanted to vomit, but also to lay on the floor as it’s generally the coldest place in the house.

My brother’s wife went through a spell of collapsing after using the loo, and so did a colleague of my DH. All three of us otherwise generally fit and well, and put down as vasovagal episodes.

I agree. I also suspect that if her judgement came out after the Peggie one and appeared to be at odds with it (fingers crossed and hoping) she might have felt obliged to differentiate (which she probably can't do). So the easiest way to contort the law to follow her feelings was to get in first with as little as possible.

Part of the claim is founded on - or at least it has been raised that - single sex cubicles in a women's toilet not providing adequate privacy from trans-identifying men present because on occasion women have to use the adjacent hand-washing facilities in that same single-sex toilet to deal with menstrual blood.

In this case the workplace regulations are silent on the location of handwashing facilities. However explicitly mixed-sex hand washing facilities are permitted under the building regulations in force at the time. If they are good enough under the building regulations then they should also be good enough to vitiate a claim for discrimination.

Keep the door unlocked and don’t fall in front of the door. That’s why in Document T and Scottish regs all toilet doors have to be openable from the outside and be able to be altered so you can make the door open outwards.

A paramedic told me it’s the first place they go to when they enter a house and can’t hear anyone.

Interestingly the 1992 Workplace Regulations specifically mention with regard to provision of sanitary conveniences that if it's an existing workplace & provision is already as per the Factories Act 1961 then it's deemed sufficient compliance.

Yes similar to Doc T saying this is from 2024 onwards. The economics of changing toilet designs is a huge headache. At the moment 25% of secondary schools have mixed sex toilets. Pupils safety doesn’t fall under 1992 legislation or Doc T apparently - it’s only for the teachers.

She has noted (para. 200) that the Regulations are enacted under the Health and Safety at Work Act (1974) and "The general purpose of the 1974 Act is 5 to secure the health, safety and welfare of persons at work. Section 2 provides that “it is the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees” (the “general duty”)."

She then notes that the only mention of "propriety" is (as you say) in reference to changing facilities.

She goes on to say that "The secondary purpose of the welfare facilities duty is therefore to provide facilities which are separate “where necessary for reasons of “propriety” (what is morally proper)."

Having set out her stall that propriety is a secondary purpose, she then asserts that the separation of men and women in 20(2) is for propriety only. As you point out, 20(2) doesn't say why men and women's facilities have to be separate; it could be for safety, dignity or any other reasons, but she infers it to be only for propriety. I think that's a challengeable flaw in her reasoning.

She then draws attention to a (in her mind) difference between privacy and propriety. She says that privacy is an Article 8 human right, and that single-user cubicles ensure privacy and therefore are required under 20(1). But propriety is not a human right. ("Moral propriety and bodily privacy are not the same. The first depends upon what is socially acceptable. The second is an inalienable human right.")

Therefore, since 20(2) is concerned with propriety, not privacy, Article 8 rights are not engaged when trying to interpret 20(2).

Are not the considerations different for hand washing facilities for the protection of a factory process from dirty hands or workers from a factory process and for hand washing facilities in a toilet?

I don't think the law distinguishes between handwashing facilities for use after using a toilet and hand washing facilities provided for any other purpose. Up until Document T, at any rate.

Toilets have to be near handwashing facilities. That's it.

The answer is yes.

Which is why it won't stand. It's hokey cokey law where definitions aren't definitions.

The judge decided that, since women were only 20% of the workforce and only one woman had complained, the rights of the men should prevail. That isn't how the Equality Act works. If there had been racial discrimination but only one black person complained, would she have used that as justification to dismiss the complaint?

Saying that transwomen are men is just like racism. Until apparently it's not.

It's fascinating to watch.

Too late for that, I think. The next step is appeal

I guess since 99% of the fire service is males they don't have to provide female provision for female staff....

Health and Safety (which she ignored here) being more of an Article 2 right, which is absolute.

From EHRC Article 2: It also means the Government should take appropriate measures to safeguard life by making laws to protect you.

Single sex loos with door gaps being a good example.

I have unfortunately lots of incidents of people dying in privately designs of toilets in very public places. Also the same in private designs for women and children being sexually assaulted by males. Supermarkets, schools, shopping centres, hospitals, railway carriages, stations, nightclubs, pubs, restaurants.

290. The claimant did not perceive that operation of the toilet access policy violated her dignity or created degrading, etc environment for her. Prior to application of the policy, trans women had been regularly using the female toilets from 2022 to her knowledge, and without objection or material change of use on her part. After introduction of the toilet policy she continued to use the multiple occupancy female toilet block and the application of the policy caused no material change of use on her part or theirs. The claimant was not upset by operation of the policy which had no practical effect.

In other word, because TiM had been using the women's toilets before the policy was made explicit by Leonardo, the application of the policy changed nothing; so it was not possible for K to be upset by it.

That is very flawed reasoning and seems to be wide open to appeal.

By the same reasoning, any practice that has been in wide application without a formal policy can be cemented and legalized when the policy is formalized in writing, as clearly the policy has no "practical effect".

The judge has decided against Kelly, saying it is proportionate to allow TiMs to use the toilets that match their gender, and that you can't tell someone's sex by looking at them. Doesn't seem to have read the SC judgement. Kelly is appealing.

This may be a misreading of the regulations. Single sex facilities have single sex washing facilities in the single sex communal area.

Single occupancy toilets used by either sex, must have floor to ceiling doors and be enclosed with a wash basin inside. I don't understand where the regulations say single occupancy toilets have mixed sex washing facilities outside them.