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

Sanitary convenience means the toilet bowl, cistern etc. Handwashing facilities are not sanitary conveniences.

chewing and typing! They are included I think. The lav on old diagrams used to mean the sink area.

I too understood that toilets had to have same sex handwashing facilities. I was in a public loo the other day and a woman came out to wash her hands and mooncup before returning to her cubicle. I was next waiting and just stayed put, for which she thanked me (a bit embarassed). So I'm no legal expert but no way can women be expected to do that in front of male strangers or work colleagues . M aybe the appeal will have to address issues like that which only affect women.

Here's another bit of dubious legal argument from the judgment:

237. If a separate toilet block is provided for men and women, Reg 20(2) does not require separate toilet cubicles for each user. If a separate toilet block is not provided, Reg 20(2) requires each convenience to be in a separate lockable room. The relevant ACOP states: “196. Facilities should be arranged to ensure adequate privacy for the user. In particular: each toilet should be in a separate room or cubicle, with a door that can be secured from the inside”. Accordingly, cubicles with gaps (which may allow for more hygienic cleaning), may, depending upon the circumstances, provide adequate bodily privacy for each user and moral propriety between the sexes if no urinals are provided.

So: as long as you don't have urinals, shared-sex toilets with cubicles provide adequate privacy and propriety. WTAF?

BTW the ACOP is the Approved Code of Practice - an analogue of the EHRC's CoP but for the Workplace Regulations. It doesn't particularly address the issue of single sex toilets.
www.hse.gov.uk/pubns/priced/l24.pdf

I think you're right - the provision for washing hands, forearms and face only is not related to toilets, it's for workplaces where workers get dirty, or where food prep etc is taking place..
There's no need for them to be sex-segregated, as they only involve washing normally exposed parts of the body.

Where is the wtaf emoji?! Where is the bold bit from? Is she rewriting standards or legislation?

Edit: to my mind, both

The Approved Code of Practice from the HSE says this, immediately after the section on toilets:

193 Washbasins should have hot and cold, or warm, running water, and be large enough to allow a worker to wash their face, hands and forearms.

Showers or baths should also be provided where the work is: ■ particularly strenuous; ■ dirty; or ■ results in contamination of the skin by hazardous or offensive materials.

It does appear to suggest that absent any of those conditions being present, if an employer provides facilities for washing only face hands and forearms along with toilets than it has met its duties under the workplace regulations. And those are not required to be single sex.

Sorry - should have said. The bold text is written by the judge, highlighted by me. It's her interpretation of the regulations.

My head is getting close to exploding with the various arguments around the regulation and configuration of toilets and basins. I take comfort from the thought that Charlotte Elves will thoroughly go through all of this and then Naomi Cunningham will tie it up in a neat little package that the thickest EAT Judge will easily understand.

It what secondary school children have to put up with. It’s awful.

Yes, I realise, I was wtaf agreeing!

Not trying to explode anyone's head, but instead trying to understand the judgement, the better to understand what might be appealable.

Here's the summary of the section on the interpretation of the Workplace Regulations as interpreted by the Judge, with my commentary restatement of her argument as I follow it to be.

242. In summary, the specific duty under Reg 20(2) requires the provision of separate toilets for men and women by way of the physical estate designed to meet their different physiological and biological needs such that workplaces are commonly constructed or adapted to have a toilet facility with cubicles and 25 a urinal badged as male, a toilet facility with cubicles and sanitary bins badged as female and an accessible toilet facilities badged as disabled.

The requirement for "separate rooms containing conveniences are provided for men and women" should be interpreted as a duty extending only as far as building separate spaces, such that the men's suits men's physiological needs, and the women's mutatis mutandis.

243. Under Reg 20(2) separate toilet blocks must be provided for men and women except where each toilet is in a separate lockable room which may be formed by partitions. There is no requirement under the 1992 Regs for that room to 30 contain the hand basin provided it is readily accessible. Each toilet must be compliant with the general duty of health, safety and welfare under the 1974 Act, but it is not necessary for all toilets to comply with Reg 20 provided a sufficient number do comply.

Other than the comments on whether washbasins have to be in the room or not, all toilets must be generally safe etc. but it's not necessary for all toilets to comply with regulation 20, as long as enough of them do.

244. The broader duty under Reg 20(1) to provide suitable and sufficient facilities requires access to those facilities to be controlled only to the extent reasonably practicable to ensure the primary purpose of health, safety and welfare (including bodily privacy) for all users and the secondary purpose of moral propriety between the sexes. This does not necessarily require either a biological or certified gender approach which may be counter to the primary 40 purpose and in any event not reasonably practicable. In most cases the respondent will have no reason to distinguish between sex and gender.

As far as policy on who can use which toilet, this is explicitly not covered by the absolute "separate rooms ... for men and women" clause. Instead, policy has to reasonably ensure primarily health safety and welfare, with a secondary purpose of propriety between the sexes. This could be done on a biological, or certified gender, or another approach. And in fact a biological separation of who uses which toilet might not only be impossible but could be contrary to the primary health, safety and welfare purpose of the legislation.

Unbelievable.

The FWS covered single sex ablution spaces.
A lower court cannot contradict a higher one and expect to go unchallenged.
Nice for Naomi and Charlotte to get more fees.
Bad for UK civil society.

It is the same person. It’s through kids names but it’s her.

I agree with her paragraphs 242 and 243, but paragraph 244 is ludicrous. She offers no evidence that a biological or certified gender approach could be "counter to the primary purpose" and asserts that neither approach is reasonably practicable, so clearly it is not, in her view, reasonably practicable for an employer to tell employees that they should use the facilities that align with their biological sex and expect them to do so. That, after all, is all that is required. I can only assume she thinks that controlling use would require someone stationed outside the toilets administering gender tests on anyone who wanted to enter.

What's your reasoning to follow her interpretation of 242?

To my mind when you "provide" something in a particular way, you have to not just build it, but operate it in such a manner as to meet the required condition.

In the sense that the law is always speaking, the requirement that "separate rooms are provided" reaches through the moment that the user enters the toilet and extends to the time they leave it, and beyond. I don't see how you can terminate that requirement after the bricks and mortar are assembled.

If I agree to provide you with lunch, that doesn't mean just once back in 1963, it means I have to make a lunch available to you, at lunchtime.

Interesting. Mooncups only came long after I finished my early menopause, so I've never used one. No girls in the family, so I've never needed to understand how they work. I genuinely hadn't realised that women needed to rinse them out during the day. In my head i just thought start and end of day at home. You could be anywhere - work, public toilets, cafes, etc. So your final point is well made - thank you.

Ok so I think this is a repeat of something Amplesheep and I have discussed before. And it boils down to definitions and what legislators meant at the time. In both cases the Judge is wrong.

As we all know, your bog-standard (!) single sex provision is a row of cubicles, each containing a WC, within a room you have to enter. The sinks are in the room. I can’t post pictures for some reason but you know what I mean. There’s a floor-door gap in the WC cubicle and a space above the door up to the ceiling.

The judge is mixing up cubicles and rooms. In legislation a room is not a cubicle. Unisex has to be a room. In 1992 what was a room and what was a cubicle is clear in standards. Where does the judge get this: ‘a room can be formed by partitions’ come from in 243?!

This is what the Standards part 1 Section 6.1 said at the time the H&S 1992 legislation 20(2) was being written up:

Doors to WC compartments, WC cubicles and bathrooms should be fitted with simple safety locks, easily released from outside for access in case of emergency. This is particularly important where elderly or disabled persons or children are involved….where a range of WCs is provided, each in a separate cubicle within a single room, e.g. in schools, offices, factories, public buildings and public conveniences, it simplifies ventilation, cleaning and, to some extent, supervision and prevention of wilful misuse, if the cubicle walls terminate above the floor as well as below the ceiling. These advantages are gained only at the expense of a certain degree of privacy. Where cubicles are used, the whole room in which they are situated may be regarded as a single unit for the purposes of ventilation. Where partition walls and doors of WC cubicles are kept clear of the floor, the clearance should be not less than 100 mm and not more than 150 mm. Partitions and doors that terminate below ceiling level should be not less than
2 m in height from the floor.

The above shows that cubicles and rooms were very much thought as separate entities, even if there were no door gaps. It shows privacy is affected to a degree when you have door gaps and importantly completely ties in with 20 (2) in the H&S legislation 1992:

20 (2)c Sanitary conveniences
20.—(1) Suitable and sufficient sanitary conveniences shall be provided at readily accessible places.
(2) Without prejudice to the generality of paragraph (1), sanitary conveniences shall not be suitable unless—

1. the rooms containing them are adequately ventilated and lit;
2. they and the rooms containing them are kept in a clean and orderly condition; and
3. separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside.

My bold.

I started in construction in 1988. Any single sex multi person toilet block I was involved in constructing (new buildings and conversions in older ones) had hand washing facilities just outside the toilet cubicles, but still within the space that had an external door back into the corridor.

So no mixed sex hand basins.

The women's toilets had cubicles and sinks, the men's toilets had cubicles urinals and sinks. I cannot imagine why anyone would think it OK to build 2 blocks of single sex toilets then find another space nearby to shove some sinks. If you building toilet blocks you put all the stuff needed in each block.

@Keeptoiletssafe

I don't think she's mixing up rooms and cubicles. I think she's genuinely found a (to her) satisfactory legal way to assert that cubicles (as you and I understand them - with gaps) are adequate to preserve privacy between the sexes. I don't have any doubt that she's wrong, but I think she's trying to rewrite the rules and isn't simply misunderstanding them.

Moon cups are a messy business but also a Godsend. They need emptied in the loo, rinsed out and then re-inserted. Ideally at home but sometimes in the wild.

I am proud of my period and want to break down barriers around that. But also hard to make polite chit chat with a man while wiping clots off my hand. Like someone emptying a stoma bag. We know it happens, but when emptying a bag for a relative, I want to offer them dignity and privacy while supporting them. I don’t want to have to do it at open mixed sex sinks.

More fool Michelle and her judicial knowledge of menopause, pregnancy and maternity. The law firm MacRoberts LLP where she worked since min 2010 had single sex toilets, they had breast milk expressing rooms, flexible working, remote working and everything besides. Her dignity and ‘propriety’ was intact.

She then moved on the Justiciary in 2018, and in Judicial chambers where she controls her entire environment. No one is watching her wash blood of her hands. She feels a menopausal flood and she rises. The entire courtroom stands up to accommodate her. She has privacy, dignity and is never questioned.

I used mooncups. No need for anything now! I wish they'd been around when I was younger.

Anyway, I never washed them out in public sinks; a wipe with loo roll was fine. Obviously I don't speak for other women, who may need or prefer to wash them each time they empty them.

I agree she’s trying to rewrite the rules. It was clear what was a room and what was a cubicle (with gaps or not). I have never comes across the phrases she is using regarding the 1992 legislation.

Her use of the word ‘gap’ is funny - I wonder if she’s got that off here - officials use ‘space’. There has never been a mixed sex design regulation including door gaps as far as I know. She really is rewriting the rule book.

You don't have to rinse every time. I do if there's a sink within arm's reach, otherwise just a quick wipe with paper. Some people carry a water bottle to rinse it into the loo but I doubt I could manage that without making a mess or dropping it.

My reasoning is that I don't agree with your interpretation of what she has written!

In paragraph 242 she says that regulation 20(2) requires separate toilets for each sex. She does not say that is all it requires. When looking at a legal judgement, it is important not to read into it things that aren't there (a mistake she has made when looking at Croft). It is only with paragraph 244 that she gets on to the question of whether employers are required to control access. The first sentence of 244 could (and perhaps should) have referred to 20(2) rather than 20(1), but the second and third sentences are where she goes seriously astray.