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 would assume 'immediate', for toilets, to mean without needing to open a standard (as opposed to cubicle) door. If you have dirty hands then standard doors are often too tricky to open without having to get the dirt all over the door as well. Push plates or pull handles - not hygienic or pleasant at all, even if everyone is about to wash their hands when they get to the other side! Could it be successfully argued this way?

Thank you for your thoughtful post. It is about dignity, possibly rather than propriety. That wording might suggest that the J belives women need to act in a certain manner, whereas we are expecting men, be they trans-identified or not to act with propriety. Whereas having the space for dignity is applicable to both sexes.

The following paragraphs describe either the respondents submission or the judge's conclusion that only one person ever complained about men using the women's lavatory. I am not totally sure which are submissions and which are conclusions because the judgment layout is confusing. But at least the last one or two must be conclusions.

147 (part) In the circumstances it was not considered likely
that female staff had not raised any concerns because they were reluctant to
do so but rather because they didn’t have any material concerns.

345 (part) there were no complaints from any other member of staff

377 (part) and only 1 out of 9,500 employees raised a concern

378 (part) However only 0.05% of the female workforce had complained

The claimant gave evidence that in the JCC they were legitimately delegated to speak on behalf of members of the workforce, but this evidence seems to have been ignored and not recorded in the judgment.

The claimant's evidence that at least a few other women had expressed dissatisfaction was recorded in the judgment, but this evidence was apparently not considered in the conclusions. It might not have been accepted, but paras 377 and 378 apparently ignore it without comment on whether it is believed or not.

Are these significant omissions?

She's pushed policy decisions about who can use a toiled out of 20(2) and back into 20(1), which (in her argument) allows more latitude.

Do you accept that "providing" separate toilets for men and women doesn't include consideration of any policy as to who is allowed to use them?

Seems to me that even if you build separate toilets, as soon as you say some men can use the women's, you're not providing separate toilets for men and women any more. I just want to confirm with you that you don't agree with that?

No, I do not agree with that, which is why I part company with her on paragraph 244. If you provide separate facilities, you should expect employees to use the facilities that align with their biological sex and be prepared to take disciplinary action against any who refuse.

The oft heard suggestion that you could only enforce it by appointing toilet police to guard each entrance is a typical straw man argument, designed as a reductio ad absurdum. You could actually do it the same way as you police bank robberies, by reacting to complaints about transgressors.

Nearly analogous to people that

• brew up stinky food in the office microwave
• dress inappropriately at work
• wear headphones that bleed enough sound to annoy people
• talk loudly on the phone
• etc.

There are no gatekeepers to enforce these things but they still get enforced

Unless you believe that no one can tell what anyone's sex is (including their own)

Just reread this apologies I read that as sanitary facilities (was rereading Scottish non-domestic regs)

A friend of a friend of a friend had gone out to a cafe with her husband and toddler when she felt herself bleeding (she was a couple of months pregnant) so went off to the loo. It was a small cafe so had a single loo in its own room with a floor to ceiling door and sink and drier all inside. She haemorrhaged, threw up, hit her head and passed out. Her husband had the toddler and didn't want to make a scene/draw attention when she had been gone a while so waited a lot longer than he should have before going looking for her.

The emergency services had to destroy the door I think.

I know that this family had to deal with not only the sadness of the miscarriage but the trauma of the very public and dramatic situation around her collapsing in the toilet too and it really made me realise that the gaps and doors you can easily unlock from outside are there for a reason.

IANAL but I’ve just had a quick scan of the judgment, and was thinking that the most promising ground for appeal seems to be the indirect sex discrimination section and wanted to share my (long winded sorry!) thoughts.

The relevant policy is in short that transgender staff can use toilets matching their gender identity. Women (and men) have a self contained.single occupancy stall that's further away.

Comparative risk: A woman alone with a trans woman faces a higher risk than a man alone with a trans man. The tribunal noted 80% of sexual offences are committed by men, but didn’t apply this to indirect discrimination reasoning afaik. Vetting doesn’t remove the risk differential. There are frequent powerful male sex offenders vetted positions, especially in male dominated workforces like the police.

Single-occupancy toilet issues: Tribunal calculate the time to reach it and said the extra minute to reach it wasn’t a problem, but it didn’t consider:

• The toilet might be occupied, whereas multiple cubicles have redundancy and a quicker turn around.
• Sometimes that's too long - i.e. dashing to the loo between back to back meetings, urgency for whatever reason such as menstruation, pregnancy, post partum issues etc.

And so whether practically the tribunal didn't consider adequately if women were being put at a disadvantage by this policy, especially compared to men in the equivalent position.

In fact, the judgement treated the claimants occasional use of the shared toilets as evidence of no disadvantage. I'd say the opposite: she was using it despite being uncomfortable probably because the alternative wasn't always practical depending on the circumstances.

Relatedly, the allowing transgender colleagues to use the loos as a "proportionate means to a legitimate end" was flawed. No equality assessment, no staff consultation...that's all been discussed on here so I won't repeat.

What a horrible situation, very scary @DrProfessorYaffle . I hear so many similar stories unfortunately. No one in government is recording incidents in toilets like this and collating them. As everyone will be aware, small cafes often have one private universal toilet design for mixed sex use. Private because it’s mixed sex though this judge seems to challenge this rule.

I find it difficult to believe the Judge doesn’t know that women are in need of safe toilets. Even Waterloo Road did an episode where a young girl collapsed in a school toilet due to endometriosis. Her friends got her out with a coin turn lock. And Fleabag had a miscarriage toilet scene with the 2 sisters. Obviously fiction but depict real life stories. In real life, women are more likely to be spiked and according stories on charity websites, women often end up in the toilets. Of course assaults are where design plays a preventative role too.

I still can’t get over what she said about assault risks and also toilet paper. Appalling.

Was the ghetto comment from another case? If so I’d love a reference. 🙏

Yes so Id have to read the whole thing in context but where the handwashing is connected to the use of the loo it follows it has to be single sex. This is because it’s an essential part of the single sex toileting journey so to speak.

If you have some random sinks about the building I.e. in a nurses room in GP clinic it won’t need to be behind a single sexed lockable door as it’s generally used for washing hands unconnected to matters requiring privacy/ toileting.

This is because it’s an essential part of the single sex toileting journey so to speak.

Can you frame this argument specifically in terms of the various regulations that apply?

So it’s the wee hours and I’m on my phone and for some reason it’s not cutting and pasting from the Regs!

There are the regulations and there is the guidance that follows.

So if you go to page 38 here it cites reg 21 then goes into great detail about the ratio of toilets to the sex of workers, type of window covering, how the door opens to that space and so on.

https://courses.theccm.co.uk/wp-content/uploads/2016/01/320-5-Workplace-Health-Safety-and-Welfare-Regulations-1992.pdf

I think that the guidance will clear that point up. I terms of framing I’ll come back to you on that in one mo as a rough and ready assessment.

At 4.52

@CraftyRedBird I would suggest to the judge that the abuse stats should be specific to toilet situations in terms of victims. It should consider the risk in mixed sex design and single sex design because that is relevant. This is almost impossible to do because no one has all the data.

I have not come across any incidents of serious sexual assaults of transgender people fortunately. The following isn’t nice: a man flashed a transwoman in protest of using ladies loos, a transwoman got pushed out of the womens toilets by 2 women because shouting didn't work. That is from surveys from Stonewall and another from (I think, will check) Translucent so unverified. From this, it is concluded a mixed sex design is less risky for transgender people in terms of assaults.

In contrast I have so many incidents of rapes, serious sexual assaults and a few deaths of women that are reported in papers. The chance of this happening is related to the design of the toilet cubicle/room. From this it is concluded a mixed sex design is more risky for women in terms of assaults.

This is more relevant.

Washing facilities

21.—(1) Suitable and sufficient washing facilities, including showers if required by the nature of the work or for health reasons, shall be provided at readily accessible places.

Without prejudice to the generality of paragraph (1), washing facilities shall not be suitable unless—

(a)they are provided in the immediate vicinity of every sanitary convenience, whether or not provided elsewhere as well;

(b)they are provided in the vicinity of any changing rooms required by these Regulations, whether or not provided elsewhere as well;

(c)they include a supply of clean hot and cold, or warm, water (which shall be running water so far as is practicable);

(d)they include soap or other suitable means of cleaning;

(e)they include towels or other suitable means of drying;

(f)the rooms containing them are sufficiently ventilated and lit;

(g)they and the rooms containing them are kept in a clean and orderly condition; and

(h)separate facilities are provided for men and women, except where and so far as they are provided in a room the door of which is capable of being secured from inside and the facilities in each such room are intended to be used by only one person at a time.

Paragraph (2)(h) shall not apply to facilities which are provided for washing hands, forearms and face only.

So this is only about washing facilities as a stand alone item.

For washing facilities to suitable you need to provide them -

adjacent to sanitary conveniences
in changing rooms
keep them clean and orderly
be single sex

The only exception is where they are provided just as a hand washing provision. So handwashing sink in restaurant kitchen doesn’t need to be single sex and behind a locked door as it’s only for the purpose of hand washing related to the neutral activity you are carrying out, or a sink in a doctors office as they clean hands before tasks as it’s only for sanitary purposes related to the work.

In a hospital ward sinks are provided for hand / face washing only - they don’t have to be in lockable rooms as they’re not being provided to support a single sex activity such as getting changed, showering or using the loo.

Does that make sense? To actually get to a slam dunk legal position I’d need to spend time on it.

But if you interpret that hand washing isn’t an intrinsic part of the activity that needs privacy - how would you apply her logic to having a sink in a changing room?

If men just want to wash their face they can wander in there?

And the way the legislation flows.

Reg 24 - Changing rooms are single sex

Reg 20 - Toilets have to be single sex

Reg 21 - You have to also provide washing facilities in the toilets and changing rooms as well no matter if you also provide handwashing outside the single sex toilets or changing rooms.

a)they are provided in the immediate vicinity of every sanitary convenience, whether or not provided elsewhere as well;

(b)they are provided in the vicinity of any changing rooms required by these Regulations, whether or not provided elsewhere as well;

We wouldn’t interpret a sink being provided outide the changing room as in the vicinity

We shouldn’t interpret s20 paragraph 2(h) exclusion applying to a sink being provided outside a sanitary convenience but within the single sex spaces of the toilet.

The design and purpose of that sink is extrinsically linked to the use of the single sex sanitary convenience.

Just as the sink in the changing room is extrinsically linked to the purpose of the changing room.

For other hand washing at work not connected to activities that require privacy- then of course individuals with gender dysphoria can wash hands their hands at a standalone sink after coming in from a gardening job to have their lunch in a canteen.

Better link to the accompanying guidance.

https://www.hse.gov.uk/pubns/priced/l24.pdf

I didn’t follow the trial closely and am only getting familiar with it.

But employers have to provide single sex spaces at workplaces which include showering facilities if required, changing rooms and toilets. Those areas all require sinks to be included in their envelope.

Only providing single sex toilets, but providing mixed sex washing facilities elsehwere doesn’t sit with the immediate vicinity aspect.

Sinks are provided in the toilets because their use isn’t limited to a quick hand wash unconnected to toilet use. Their use is for cleaning up as part of the toileting process for which privacy is required on a single sex basis.

The accompanying guidance to Regulation 21 at ACOP 21 on page 38 explains:

Single sex toilet spaces have to have the following characteristics

• lockable toilets
• further doors to the public area unless there is a privacy design (that’s like the zig zag entrances to large toilet spaces in airports that mean you don’t need to open an actual door but no one can see into the actual toileting area)

https://www.hse.gov.uk/pubns/priced/l24.pdf

A man can’t come into the single sex spaced toilet to use the sink only. If he comes from
the public area through doors he is coming into into a single sex space. That single sex toileting space must include at a bare minimum lockable toilets, somewhere to dispose of sanitary products, adequate sinks in the immediate vicinity of the toilet.

There’s clearly a lot of other stuff to rebut in the judgement but that’s my thoughts on the decoupling of the sink from the toilet as a single sex space.

There’s a lot of very imaginative reframing of regulations going on here!

Maybe it will be an element of any appeal, in which case another judge may opine on the topic.

Ok so in the reverse- give me a real life example in the UK of where toilets are provided on a single sex basis but hand washing is mixed sex?

Even at the grottiest festivals (in my limited experience) the toilets are single sex cordoned off areas and the handwashing facilities are contained within the single lockable toilet unit.

I have never been to a toilet with more than one toilet cubicle where sinks weren’t provided that wasn’t bounded by a further door or shielded exit and marked as single sex.

Can you do the reverse? Explain to me how the Regs & ACOP allows for multiple toilets within a room to be designated single sex but the sinks within that room can be considered mixed sex and complaint with the regs?

I am actually very intellectually curious about this and I responded genuinely with reference to Reg’s & guidance as requested which you called ‘imaginative reframing’.

It is for Judical interpretation but also for all of us it has to make logical sense in the real world. We’re all impacted by toilets in our workspaces.

If I legally had to use a loo then open a cubicle to a man that would impact my privacy. It doesn’t happen because all toilets are single sex, unless the sink is enclosed with the envelope of the locked toilet unit. Even then I won’t encounter a man because my single sex rights are protected within that single unit as no one can enter that space.

I've only skimmed the judgement but it reminds me of a Sports Council report a few years back which considered the issues of safety, fairness and inclusion. At the time many sports had prioritised inclusion over safety and fairness.

The judgement seems to following a similar line that inclusion is a legitimate aim and so can override privacy and dignity.

The reverse.

Secondary school near me.

Two rooms, with a fire door, each containing 6 cubicals, one room male, one room female.

Use the toilet, leave the cubicle, walk to the door, push open the self closing fire door, walk across to a row of mixed sex sinks, in view of the rest of the corridor.

Originally, the two rooms didn't have a fire door, and were also open to the corridor and mixed sex, but the students self regulated into single sex areas, and complained lots and lots. So the doors were put on, and designated as male and female.