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

@Keeptoiletssafe brilliant pics! They’re better than the ones I remember which were literally a tiled trough that you straddled. Ugh, gross.

When you think of the particular industries this week's tribunals have been considering - emergency medicine and military defence - why in fuck's name would anyone want to reduce the quality of toilets for everyone, in order to resolve a dispute.

Do we really want military helicopters designed by engineers with kidney disorders from avoiding the workplace toilets? Or resus clinicians waddling around us in heavily soiled scrubs because there is nowhere safe to change?
Obviously no-one should have inadequate provision but you'd think the fairly extreme scenarios presented would cause the tribunals to pause for just a small amount of thought?

It beggars belief.

259. The Judge has indicated that the Workplace Regs the Schedule 22 exception does not apply to Regulation 20 of the 1992 Regs because it is not concerned with “protecting women in relation to—(a)pregnancy or maternity, or (b)any other circumstances giving rise to risks specifically affecting women.

I think this is an error of law. EqA 2010, Sch 22 provides for exceptions to the general prohibitions of differential treatment based on protected characteristics.

Pregnancy and Maternity in the Workplace: Provisions permit differential treatment related to sex, pregnancy, and maternity to protect the health and safety of women who are pregnant or have recently given birth, or against risks specific to women.

The Workplace Regulation 1992 was enacted to provide separate sex toilet provisions. The later Eq Act 2010 layered over another element of protection for pregnant and maternity protection.

Women in Schedule 22 of the EqA can only be biological women. A trans identified male cannot ever require additional protection that this affords. And he can never be afforded the rights under Sch 22 pregnancy and maternity.

Toilets are a significant space for women who are pregnant or in their maternity period. So even if the Judge came to the view that the sinks can be mixed sex within the wider toilet room they then need to view that decision through the Schedule 22 lens.

It is within judicial knowledge that women may require to use toilets as the only private space to undertake activities that are related to pregnancy and maternity within the workplace.

Women who are seeking to get pregnant may endure long periods attempting to get pregnant via IVF and require somewhere to carry out daily injections. Other women may be using ovulation predictor kits to assess when fertile for a successful pregnancy. Women have specific dates and times for pregnancy tests for use under IVF and that may well need to be scheduled during a work period.

Women often experience spotting or bleeding during pregnancy. When women start experiencing a miscarriage, the experience vaginal bleeding which is often accompanied with sudden pains and contraction like sensations. The toilet is where women go to investigate what is happening & navigate concerns about potential miscarriage.

Women have done and continue to experience miscarriage at work. 25% of pregnancies end in miscarriage and can happen at any time. With some 250,000 miscarriages – one in four pregnancies – occurring in the UK each year, most workforces have staff that have been or may be affected. https://www.wihb.scot.nhs.uk/wp-content/uploads/2020/03/Miscarriage-and-the-Workplace-1.pdf]

The same document - from NHS Scotland no less says - "A woman who starts to miscarry at work is likely to be distressed, frightened and embarrassed. She will need privacy, support and access to a toilet, and may appreciate help in getting home or to hospital. If she is very unwell an ambulance may be needed."

If the pregnancy is successful women use the toilets to navigate pregnancy related vomiting and some women experience hyper emesis which can be so severe as to lead to hospitalisation. When women move to the post pregnancy period the toilet is very important to manage maternity related issues including management of post birth bleeding, re-dressing caesarean scars, expressing milk, managing breast engorgement or painful mastitis when returning to work while still breastfeeding.

Yes endometriosis is another one - Waterloo Road did a good awareness episode where a girl collapsed in the toilet cubicle and her friends got in quickly by a twist lock.

If the Judge has concerns with propriety she would be horrified if she spent an afternoon looking at what goes on in loos.

Some things we have tried in this country to keep private toilet designs safe (off the top of my head):

1. floors that weigh you and if you are so heavy that it thinks you are two people, the door opens automatically (great for mums and kids!)
2. sound monitors where certain sounds (?!?) trigger the intercom to ask if you are ok
3. Movement alarms
4. restricting the cubicles so they are so small two people can’t have sex in them. Doesn’t work with planes - where there is a will…
5. doors on timers. Dreaded feature of the mixed sex, private Superloo invasion that didn’t work. Boys worked out that banging the door would make it open and people got stuck.
6. toilets that spray liquid on floor. Stops rough sleepers
7. weird coloured lights to stop drug use. Just makes it more dangerous for several different groups like those who are going to inject anyway and those with visual deficits.
8. stainless steel walls so men can’t bore holes in them (glory holes)

Oh god is that what steel walls were for? They did that long ago to some previously beautiful Victorian toilets in our city centre. I had assumed it was too expensive/not feasible to restore the tile!

I can still remember being 3 and going to a public toilet for the first time in Hong Kong and it being just like your pictures. I was horrified!

I'd Struggle to stand up again afterwards these days but if it keeps the men out then fine. Just stick a grab rail to one of the ones that's got a wall by the side of it and I'll make it work!

To be fair I think it’s a general anti-vandalism measure and a way of washing the walls down but I can look for the source tomorrow if you want. Steel coverings has lead to an electrocution death with a loose wire. I was thinking they were a good solution before that.

If you see a hole in a wall with toilet paper pushed in it, resist pulling out the toilet paper!

Ah. Forget me sharing that one.

The judge is so naive - talking about moral propriety. This is loos we are talking about. In the sexual offences act they are specifically mentioned in the Voyeurism section and even had their own clause added.

So,
In light of the lies by the Judge in the Peggie ET about their case precedents
who fancies checking the Leonardo document for the same sort of errors !

I missed this and got so behind on the Peggie threads, I am not sure I will be able to find it. What were those lies?

There looks like there's going to be quite a few.

The main one is he made up a quote and cited it as being from Forstater but it doesn't actually exist.

He may have been ChatGPing in his judgement.

https://x.com/i/status/1998680325052850388

Sonia Sodha has done a thread
https://x.com/soniasodha/status/1998722906596241577

Thank you both! I have had various tabs open on MN threads for months on these cases but eventually had to accept I would never catch up!

As for an AI written judgement - there have been several barristers caught out for having done this and having included totally fictitious cases in their pleadings.

Cross-Referenced Case Law from the Judgment
(BMKellyvLeonardoUKLimited-8001497.2025.pdf)

If a case lacks a direct BAILII link (e.g., due to recency or specificity), I've noted an alternative official source.

References are listed in the order they appear in the document.

Case Reference
Page(s) in Judgment
Full Citation
Context in Judgment
Link

Croft v Royal Mail (Employment Appeal Tribunal)
2, 31–32
Croft v Royal Mail Group plc [2002] EAT (specific reference not fully cited)
Discussed in relation to Article 8 ECHR and trans access to single-sex facilities pre-GRA.
Not found on BAILII (possibly unreported or internal citation); alternative: Employment Appeal Tribunal archive via gov.uk (search "Croft v Royal Mail 2002").
Croft v Royal Mail (Court of Appeal)
2–3, 32

Croft v Royal Mail Group plc [2003] EWCA Civ (specific reference not fully cited)
Upholding EAT on toilet access for post-surgery trans individuals.
Not found on BAILII; alternative: Court of Appeal archive via gov.uk (search "Croft v Royal Mail 2003").

R (on the application of James Dowsett) v Secretary of State for Justice
31
[2013] EWHC 687 (Admin)
Balancing bodily privacy rights under ECHR.
https://www.bailii.org/ew/cases/EWHC/Admin/2013/687.html

Eweida v United Kingdom
31
(2013) 57 EHRR 8
Balancing competing ECHR rights in discrimination contexts.
https://www.bailii.org/eu/cases/ECHR/2013/8.html (HUDOC via BAILII)

Goodwin v United Kingdom
31
Goodwin v United Kingdom (Application no. 28975/95) [2002] ECHR 588
Background to legal recognition of trans gender pre-GRA.
https://www.bailii.org/eu/cases/ECHR/2002/588.html

Bellinger v Bellinger
33
[2003] UKHL 21; [2003] 2 AC 467
Parliamentary test of sex in relation to gender recognition.
https://www.bailii.org/uk/cases/UKHL/2003/21.html

For Women Scotland Ltd v The Scottish Ministers (Supreme Court Judgment 2025)
3, 35
[2025] UKSC 16
Interpretation of "sex" under Equality Act 2010; implied exemptions from GRA.
https://www.bailii.org/uk/cases/UKSC/2025/16.html (recent; also available via Supreme Court website)

News Corp UK & Ireland Ltd v Commissioners for His Majesty’s Revenue and Customs
38
[2023] UKSC 7
Modern contextual interpretation of statutory terms.
https://www.bailii.org/uk/cases/UKSC/2023/7.html

Nicholson v Grainger plc
48
[2009] UKEAT 0219090311
Human dignity in harassment claims.
https://www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html

Hewage v Grampian Health Board
49
[2012] UKSC 37
Burden of proof in discrimination claims.
https://www.bailii.org/uk/cases/UKSC/2012/37.html

Igen Ltd v Wong
49
[2005] EWCA Civ 142; [2005] ICR 935
Two-stage burden of proof in discrimination.
https://www.bailii.org/ew/cases/EWCA/Civ/2005/142.html

Richmond Pharmacology Ltd v Dhaliwal
50, 52
[2009] UKEAT 0450081202; [2009] ICR 724
Perception and reasonableness in harassment effects.
https://www.bailii.org/uk/cases/UKEAT/2009/0450_08_1202.html

Pemberton v Inwood
52
[2018] EWCA Civ 564
Subjective vs. objective elements in harassment.
https://www.bailii.org/ew/cases/EWCA/Civ/2018/564.html

Shamoon v Chief Constable of the Royal Ulster Constabulary
56
[2003] UKHL 11; [2003] ICR 337
Comparator and reason for less favourable treatment in direct discrimination.
https://www.bailii.org/uk/cases/UKHL/2003/11.html

Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting
56
[2001] EWCA Civ 1991; [2002] ICR 646
Material circumstances for comparators in facility access.
https://www.bailii.org/ew/cases/EWCA/Civ/2001/1991.html

Earl Shilton Town Council v Miller
57
[2023] EAT 5
Adequacy of toilet facilities under sex discrimination.
https://www.bailii.org/uk/cases/UKEAT/2023/5.html
Essop v Home Office; Naeem v Secretary of State for Justice
58
[2017] UKSC 27
Equality of treatment vs. results in direct/indirect discrimination.
https://www.bailii.org/uk/cases/UKSC/2017/27.html

British Airways plc v Starmer
59
[2005] IRLR 862 (EAT)
Definition of "provision, criterion or practice" (PCP).
Not directly on BAILII (EAT unreported); alternative: gov.uk EAT decisions (search "British Airways v Starmer").

Ishola v Transport for London
59
[2020] EWCA Civ 112
Scope of PCP in indirect discrimination.
https://www.bailii.org/ew/cases/EWCA/Civ/2020/112.html

Allonby v Accrington and Rossendale College
60
[2001] EWCA Civ 529; [2001] ICR 1189
Pool for comparison in indirect discrimination.
https://www.bailii.org/ew/cases/EWCA/Civ/2001/529.html

Homer v Chief Constable of West Yorkshire Police
60, 64–65
[2012] UKSC 15
Establishing group disadvantage; proportionate means in justification.
https://www.bailii.org/uk/cases/UKSC/2012/15.html

Dobson v North Cumbria University Hospitals NHS Foundation Trust
60
UKEAT/0220/19/LA
Ways to establish particular disadvantage.
https://www.bailii.org/uk/cases/UKEAT/2019/0220_19_LA.html

Chief Constable of West Yorkshire Police v Homer
64
[2008] EWCA Civ 931; [2009] ICR 223 (EAT stage)
Reasoned judgment in justification.
https://www.bailii.org/ew/cases/EWCA/Civ/2008/931.html

Greater Manchester Police Authority v Lea
65
[1990] IRLR 372 (EAT)
Nexus between employer function and legitimate aim.
Not directly on BAILII (EAT); alternative: IRLR archive via Westlaw/ Lexis (subscription required; search "Lea v GMPA").

Patel v Mirza
65
[2016] UKSC 42
Proportionality and deterrence in legal compliance analogies.
https://www.bailii.org/uk/cases/UKSC/2016/42.html

Rainey v Greater Glasgow Health Board
66
[1987] AC 224; [1987] IRLR 26
Reasonably necessary means in justification.
https://www.bailii.org/uk/cases/UKHL/1986/3.html (HL stage)

Hampson v Department of Education and Science
67
[1989] ICR 179 (CA)
Balancing discriminatory effect and reasonable need.
https://www.bailii.org/ew/cases/EWCA/Civ/1989/6.html

Hardy & Hansons plc v Lax
67
[2005] EWCA Civ 846; [2005] ICR 1565
Balancing exercise in objective justification.
https://www.bailii.org/ew/cases/EWCA/Civ/2005/846.html

Link to the original judgment here https://assets.publishing.service.gov.uk/media/69303e1bcdec734f4dff4197/B_M_Kelly_v_Leonardo_UK_Limited_-_8001497.2025.pdf

If anyone wants to cross check this judgment - an AI provided list of cases from the judgment as as starter for 10.

I had to use something similar in India, squatting down while I balanced my heavy rucksack on my back and changed my sanitary towel. Fun!

It was actually a bit worse than your picture as there was one channel for everyone's waste, so it all floated past you while you did your business.

I also used one in China at the Great Wall where there were no walls at all. Luckily there weren't so many tourists in those days.

I have discussed the bizarre cubicle/block/room interpretations around 135-7 previously which gives me nightmares of squatting in a big room with everyone else with no partitions. If anyone can make more sense of it than me, please translate.

In relation to HSE and 1992 legislation, it talks about this document:
https://www.hse.gov.uk/pubns/priced/l24.pdf

The judgement gets messy when you read it in conjunction with statements from the HSE such as this (point 238):

• for disabled people, suitable toilet accommodation may take the form of specially designed cubicles in separate-sex toilet washrooms or a self-contained unisex toilet;

Which then you look at within their introduction on Regulations:
‘Employers have a duty under the Health and Safety at Work etc Act 1974 to ensure, so far as reasonably practicable, the health, safety and welfare of their employees at work. People in control of non-domestic premises have a duty towards people who are not their employees but use their premises. The Regulations expand on these duties and are intended to protect the health and safety of everyone in the workplace, and ensure that adequate welfare facilities are provided for people at work.
Several of the regulations require things to be 'suitable'. Regulation 2(3) makes it clear that things should be suitable for anyone. That includes people with disabilities. Where necessary, parts of the workplace, particularly doors, passageways, stairs, showers, washbasins, toilets and workstations, should be made accessible for disabled people.’

As I said before, if you don’t have single sex toilets there’s so much that has to be rewritten and undone because it doesn’t make sense. The legislation doesn’t work as you can’t adapt a separate sex toilet washroom if there no such thing as a separate sex toilet washroom. If they are all unisex they are not separate sex. The HSE are talking about the standard single sex configuration everyone is used to and saying separate-sex toilet washrooms as a collective term for toilet cubicles within a room with sinks for men, then the same configuration for women.

In Leonardos the women’s toilets weren’t separate sex so the HSE regs don’t align for (anyone visiting or) staff, that had a disability requiring separate sex toilet washrooms. If a unisex toilet was the same as single sex they wouldn’t be distinguished as separate terms.

Separate sex toilet washrooms are the healthiest and safest provision for most of us. Most toilet blocks don’t have to be changed as that’s what they have been designed as already.

A lot of what is in the HSE document is detailed further in https://assets.publishing.service.gov.uk/media/66f6c5eec71e42688b65ee11/ADM__V2_with_2024_amendments.pdf which has a lot of detail about ensuring you have the right toilets for the myriad of disabilities for your workers. It talks about toilets in terms of SEPARATE SEX toilets and unisex toilets. What is separate sex toilets if not toilets separated by sex?

One set of separate sex toilets have urinals, the other set have sanitary bins. Guess which set the sanitary bins have to be in? There’s no requirement for the men’s that’s why there is a campaign for ‘bins for boys’ to get regulations changed.

That was a very long-winded way of saying the judgement is a bodge job. We all know what standard toilet provision is and what the legislation meant.

@Keeptoiletssafe

Can you read the guidance and let me know if this provison fits with the stats in the ACOP ?

Per each floor in Edinburgh site
150-200 desks for staff
10-25 women could have been present at any one time

Before MK raised a grievance -

Toilet blocked badged female - five individual lockable cubicles
Toilet block badged male with four invididual lockable toilet cubicles, urinals (doesn't mention how many)
Room badged as accessible - had toilet and sink included

Stairwell toilets - room badged female with two individual and lockable toilet cubicles
Room badged as male containing an individual and lockable toilet cubicle, urinals and a shared wash basin area

After MK raised a grievance

Stairwell toilet - I think with one toilet removed

(It probably meets the provision I think it was 1 to 50 ratio)

@Keeptoiletssafe

People in control of non-domestic premises have a duty towards people who are not their employees but use their premises.

So it could be argued that any workplace that allows visitors is providing them with a service. Unless Leonardo are strict about where non-employees can go (and as a defence organisation this is of course, possible).

And provision of services is covered by the Equality Act 2010. Any ruling that says workplaces are not covered by the Equality Act must be wrong.

Replacing juries with judges who can't be arsed and use obvious AI to make decisions and write up a ruling, is going to go so well, isn't it?

There will be a massive backlash against AI. DH has been in a shit mood this evening in part because he's so fed up of having to check other programmers work and finding it's less than useless AI generated code which give no end of security issues. He's very much of the opinion that AI will not take over half as much it's supposed to for this reason.

I also think this is why we are getting big tech people starting to talk about the AI bubble bursting. The noises starting mean there's a problem, it's just a question of when it manifests.

In the case of employees, if you are arguing there's no problem because only one person complained, then you also have to consider how you monitor this - what means/channels/ways do you have within the way your company works do you have for anyone to object - do employees know how to object? Do they feel able to object? Do they know who to object to and what are legitimate grounds for objection? Otherwise it could be argued that there really not a system for women to object and that be indirectly discriminatory in its own right because males don't have the same issues.

If you also have non employees on site, how do they know if there is someone using the facilities that they might find objectionable. How do you make sure they are fully informed? Do you have a system to deal with any individual who does object? What is that system? Is it available to all in an accessible manner?

This is where we are into the realm of "if you have any objections with consenting about mens in female facilities, please register this objection on arrival otherwise we will presume consent".

The point being there has to be a policy on how to deal with 'none compliant individuals' and how to ensure that privacy of all is retained. And this must be a non biased system which is transparent and available on request.

You can't give a policy on request if you don't have on - which means automatically by default your institution is sexist...

34. L Ltd has access to classified information and stringent security requirements are applied to them as a ‘List X’ contractor. Staff, contractors and visitors are subject to security vetting and varying levels of security clearance are required to access different areas within the site.

35. During the grievance process MK did not assert that the toilet access policy put her and women to a disadvantage because of an increased risk of assault. AL stated in cross examination that there is no evidence that their staff were 10 either fearful of or at risk of violence in their facilities; it’s a controlled environment and there were no reports of any incidents. It was considered likely that a member of staff was a very low risk of being assaulted or sexually assaulted at this place of work given the stringent vetting requirements applied to staff and any visitors.

So I assume we would need to know what toilets visitors had access to and whether they were single sex.

Second para was 137