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

Yes. I have had different ones for various volunteer jobs as well as teaching. The system has changed a few times - I believe the horrible case with Ian Huntley changed the system too.

I had to act as a character witness for a school friend who went through enhanced vetting in the early 2000's. I was invited to a members club by a retired officer, we had a nice lunch then he got onto the questions

• Did x go to parties a lot?
• Did he like to drink?
• Did he drink excessively?
• Did I think that he could keep a secret?
• Did he have money troubles
• Had I ever lent him money
• Was he a homosexual?
• Did I consider him to be a womanizer?

It did seem like a pretty blunt tool - especially as my friend nominated me as a character witness

How horrendous. I don't know much about DBS checks, but you're saying that murderers and rapists can pass? Do these convictions get spent? Surely violent crimes should prevent getting a DBS for the rest of your life.

Yes, the Huntley case led to the Bichard inquiry which in turn led to the founding of the Independent Safeguarding Authority, which was subsequently merged with the CRB to form the DBS. The inquiry also led to various procedures being tightened.

In safeguarding training, we always tell trainees that DBS checks on their own are not enough. They will only tell you about convictions or, rarely, cases where the police have relevant non-conviction information.

The judge uses the small number of trans staff and the vetting requirements to argue that allowing trans-identifying men into the women's toilets was not likely to place women at a greater risk of violence of sexual assault in the toilets than men. However, from a safeguarding perspective, I would say that vetting may help to reduce the risk, but it does not eliminate it. We know that, on average, child sex offenders commit around 100 offences before they are caught. I don't know of any equivalent figure for violence or sexual assault but, given that the vast majority of sexual abuse incidents are never reported to the police, it is also likely to be high. It may be that none of the trans-identifying employees at Leonardo are a threat to women, but it is clearly wrong to say that the small number of such employees and the fact they are vetted means there is no risk or that it reduces the risk to the same level as that faced by men.

My opinion on the judgement:

Judge to women: Toilets are a trivial matter. There is plenty of choice. They are there to do your business and it shouldn’t matter who uses which.

Judge to TW: It’s really important that you have access to the women’s toilets that match your self identified GI.

I don't know.

Either he passed the dbs check because for whatever reason his previous 3 convictions were not on there, or the crown court employed him despite knowing he was was a three times convicted rapist and murderer.

Even if they hadn't been on his dbs and they'd employed him thinking he was an honest upstanding thoroughly decent member of society that doesn't change the fact he still had those convictions. He was still a very bad man who was a danger to women and children.

They employed him after he'd raped me, and before it was reported so that conviction wouldn't have been there yet.

Whichever way you look at it how the judge in the Employment Tribunal can say if a man has been checked out by his employer that means he's of no threat to women is just ludicrous.

Don't forget DBS checks rely on people being honest.
'Trans' applicants have a special application route, and name/'gender' changes are supposed to be disclosed by everyone.
So in some cases we are relying on criminals to be honest.

Edited to add; as far as I know the loopholes pointed out by KPSS have nevr been closed:

https://kpssinfo.org/wp-content/uploads/2022/09/DBS-Checks-and-Identity-Verification.pdf

You can always get a DBS check no matter how many convictions you have. The question is what will appear on it.

Murder and rape convictions will always appear on a DBS check unless something has gone wrong and they have failed to identify the correct individual. They are never removed. However, an employer cannot refuse to employ someone simply because they have offences on their DBS check. The employer can only refuse employment if the offences are relevant to the role. It is therefore possible that the employer decided that convictions for murder and rape were not relevant to a role as a security guard. I think that would be a mistake by the employer, but it is possible that is what happened.

Great summary!

Now that’s an interesting thought that just popped into my head.

If the Leonardo vetting process is mainly there to make sure that you don’t have anything in your past that a foreign power could use as leverage against you (to get you to turn over the microfilm, or we will tell everyone your leetle secret etc, etc),

And, all the trans-identifying men in Leonardo (according to the judge) pass so well that no one would ever guess they are really men, to the extent that it would be horrible and outing for them to use the men’s toilets,

Doesn’t that make them a security risk?

They have this secret that is SO important and terrible that just using the “wrong” toilet would utterly destroy them. Surely that would be an easy point to push for a foreign power? We will tell everyone in your office that you are really a man (if you do not hand over the microfilm, etc etc).

So either no one can tell they are actually men, and their lives would crumble if anyone found out, so they are a complete security risk and shouldn’t be employed there anyway. Or everyone knows (and therefore the TiMs couldn’t possibly care if Mr Baddie threatened to tell everyone) and so they should just use the men’s loos and get over themselves.

Make it make sense!

@TwoLoonsAndASprout well I wondered during the trial why it wasn't raised that it would be "outing" for Maria Kelly to start using different toilets from the ones she was used to. Because then presumably everyone would know she was actually a man...

An appeal will be on all possible grounds, as I hope we will see.

Agree, that’s also an interesting thought.

If using “some other” (let’s say single user) loos will always “out” you as trans, then surely insisting that someone who isn’t trans can just use the other loos (if they don’t feel comfortable with the TiMs in the ladies) would have a similar effect - it would mark them as trans when they are not. Surely “cis” people have the right to not be thought of as trans? That’s what we’re always being told anyway (wrt the all the butch lesbians who are constantly being thrown out of the ladies loos…).

You can always get a DBS check no matter how many convictions you have. The question is what will appear on it.

Many (most?) people think that you pass or fail a DBS check performed by the Denial & Barring Service when in fact it's the employee who receives the DBS certificate detailing convictions etc. The employee then gives the DBS certificate to the employer, charity etc & they make a judgement as to the suitability of the individual. The Denial & Barring Service is just the messenger not the decision maker.

There is also a back channel whereby the DBS can pass confidential intelligence about the employee to a trusted person at the employing organisation. Though that doesn't change your point that it is the employer who makes the employment decision.

Toilets have a long history with espionage and blackmail. There were rumours about a past prime minister and cottaging and that the security services had to have a word.

Hidden cameras have got past the security in Holyrood to be put into the toilets at the heart of government.

Unisex toilets are great places to put hidden cameras. There’s a reason the sexual offences act had to put a new clause in for toilets. But, it doesn’t stop people.

In the ‘olden’ days the police used to drill holes in the ceiling to peer down on men to check what they were doing.

One woman complained.

There were three trans identifying males.

Ratio weight 1:100000000

Sorry to be pedantic but it's the Disclosure and Barring Service.

Also employers can request a basic check without approaching the employee.

https://www.gov.uk/dbs-check-applicant-criminal-record

Thanks for sharing BB. I’m sorry that happened to you.

Shame on EJ MS generally but more so thinking of your experience.

Whoops! Brain fart re DBS. Sorry!😀

As far as I am aware it's always the employer (or charity or whatever) who requests a DBS check regardless of level & the certificate always gets sent to the employee (or charity worker or whatever).

say 3% of rapes end in a conviction - 97% of rapists are male and freely roaming in society.

Unfortunately it's much worse than that. I did the sums earlier this year and if you take into account attrition rate at each stage - reporting, prosecution, conviction - around 0.5% of rapes end in conviction.

The whole statistical input by the judge is garbage.

If one person is discriminated against, the fact that they are the only one
makes no odds

To turn it on its head
if a solidary trans identifying man was denied his legal rights
would a judge say
"but you are the rarity in the company, suck it up "

You can request a basic check for yourself. Your employer needs to request a standard or enhanced check. The employee always gets the certificate, but the employer is separately told what is on the certificate plus any non-conviction information disclosed by the police that isn't on the certificate.

The same is true for charities and volunteers.

The stats are embarrassingly appalling. Any statistician involved in that should be ashamed.

On the subject of the Judge throwing everything in, I was amazed she mentioned door gaps and hygiene. That leads her wide open for comparisons (of which I can give many regarding health too). Of course it’s not a ‘possibly’ that door gaps help - it is the truth. (There’s also links with ventilation).

Guide dogs guide their owners to the correct sex of toilet by smell, and there’s no doubt women can tell the difference between a unisex and a female by smell too. Our wee is of different composition to men’s, and human males are, like many other male animal species, even able to smell the differences in female fertile days.

Apologies for the bluntness, but they are so many subtle differences between female and unisex toilets. You can literally smell it. women have a better sense of smell which is very much a disadvantage in unisex loos that can’t be washed down as easily from the smellier urine of men. Men also don’t wash their hands as much. That means women wash their hands then touch the door handle that is more likely to have more microbes on it. All scientifically provable.

The modern fashion in toilets for the general public of integral or glued down toilet seats is a bit of a disaster in men's toilets let alone unisex ones. Only the most fastidious of us seem to wipe the seat after use.