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

Given the number of sexual assaults in hospitals by staff who have undergone enhanced DBS checks, I'm minded to say that vetting is about as useful as a chocolate teapot.

The security vetting required in defence is very different to DBS check to work in a e.g. hospital. But that doesn't mean that those who pass it should have access to single sex spaces of those of the opposite sex.

Yes! This is what I have mused before. It’s the 1974 legislation as well that specifically talks about keeping visitors safe. That legislation was set up because there were several tragedies (fires etc) so it makes sense that a factory was responsible for keeping visitors safe too.

The DfE said schools had a responsibility under 1974 legislation too. 1992 only technically applies to staff but I would argue it applies to parents etc and others in they are directed to use the pupils’ loos.

How on earth does it eliminate individuals who might sexually offend either though?

I'm fairly sure that the military doesn't have a great track record on the treatment of women in its ranks ...

I don't believe standard military members require security clearance. Working in defence sector is different to this.

Minor offences or evidence of bad character should show up in SC checks. Would it rule out the potential to be a sex offender? No.
Criminal offending rates may be lower in defence sector than other areas, but that should have no bearing on whether female employees have a right to single sex toilets.

In short, I'd expect the risk to be lower than in the NHS, but that still doesn't mean that biological men should be allowed to use women's toilets.

It does nothing to stop sexual offending!

It isn't able to check for it. It's not designed to.

Was any evidence submitted to the tribunal that showed men who had undergone Leonardo's vetting process were less likely to commit sexual offences against women?

Is the Judge just assuming this to be true?

He's just assuming.

She is just assuming.

Ive read into the vetting rules - they’re particularly difficult if the individual is trans they likely have changed their name and no one is forcing them to disclose their dead name as that would be harassing wouldn’t it?

Apologies. I've been mainlining Judge Kemp in Sandie Peggie's case all evening.

Guidance here:

https://assets.publishing.service.gov.uk/media/64ae77988bc29f000d2ccb3b/2023-06-20_-Applying_for_national_security_clearance_guidance_for_the_Trans_Community-_O.pdf

In the Judgment Michelle says oh employers can’t police toilets and you can’t tell a man dressed as a woman apart from a woman. But also we vet the men so you’re safe.

How can you safely police their vetting process and how can you tell are trans and need to provide a deadname?

The process should detect sexual crimes in a applicant's past and they may be rejected for them.
What percentage of sexual crimes end up in a conviction?

Close to zero.

Most women don't even make a complaint.

The services section applies to services offered to the public or a section of the public. By this I understand that people select themselves for entry (possibly according to one or more criteria).

Visitors to a workplace aren’t a section of the public - they can’t invite themselves in.

The rules about workplaces are in most senses stricter than for services, though. The services section is full of relevant exceptions, such as for separate sex services. The schedule on exceptions in the work rules seem to be stricter though.

Visitors to defence sites can't just wander around freely.

I think this is a distraction from the fact that regardless of whether the men you work with are of a high risk or low risk for committing sexual offences, they shouldn't be using women's toilets.

Even if we ignore the very important privacy aspect - and I certainly don't want male colleagues walking in on me cleaning up blood after flooding - there is no level of vetting in the world that can tell you there is zero risk of rape by a particular man, the best we could do is say he has never been accused of inappropriate behaviour previously.

We also don't want to be in a position where women's rights to single sex spaces depends on the level of background checks that have been carried out on colleagues. Women in GCHQ have as much right to women-only toilets as women working in a supermarket.

Sorry if I'm coming off a bit strongly here. I found out earlier this year that men can self-identify into women's toilets where I work. I've never seen a man using them, but I find myself thinking about it every time I go in there now.

Women in GCHQ have as much right to women-only toilets as women working in a supermarket.

Indeed. Either all women are equal and deserve privacy and dignity. Or do not.

The safety aspect is separate from this. They do often interact together, but not always.

Both are valid reasons protected in law.

No amount of vetting is relevant either though. We know that men in positions of power offend. Often it's part of the thrill.

I’m sorry to hear that. That’s really tough.

Not being flippant, and I know it’s hard to have to do. As soon as a man appears in whatever form you leave and go and write to your manager, I exercise my Article 8 rights in respect of the toilets. No further comment required.

And please be in no doubt - we agree. We’re just ruminating on appealable points.

Well, this is the crux of the problem. All of the rules and underpinning expectations of risk management around nearly everything in our public and private institutions were abruptly subverted around 10 years ago in the name of “being kind.” My sister saw it directly in policing - suddenly the College of Policing was talking about not recording sex of sex offenders at all in favour of gender identity because “trans rights,” while long-serving detectives were told the stats on sex offending and their own experience of male offending were “transphobic.”

So deep vetting procedures are very thorough, but “trans” became such an instant brain shut-down so quickly it wouldn’t surprise me at all if some zealous vetters in all sorts of institutions righteously patted themselves on their backs whist driving massive loopholes through their own procedures. Because they were so very kind and pointing out the possible flaws was suddenly unkind.

This, all day long.
We've allowed supporters of this ideology to undermine safeguarding in all our institutions. Education, health, the law, social care, policing, military etc. The whole thing.
The capitulation to the regressive notion that men can be women, that sex change is great (including for children), that single sex spaces are exclusionary fundamentalism and that speaking the truth is unkind bigotry has tarnished society and rendered chidlren and women unsafe in too many situations.

Pointing out the flaws was ‘harassment’, ‘bigotry’ and ‘transphobic’. And you were burned for a witch for speaking that out loud.

Why toilets matter!

The suggestion in Kelly's and in Peggies case is that toilets are pretty much the same for men and women and you get undressed to the same extent. Aside from a long diatribe on jumpsuits, formal dresses and trying to pee in wedding dresses I wanted to see if could articulate why women need more privacy at the toilets.

139 MK stated in evidence that women by reason of menstruation, pregnancy (or lactation) and menopause have greater need of privacy than men when using the toilet and washing their hands

There was no evidence beyond MK’s own testimony that women experiencing menstruation, lactation and menopause sought greater privacy in the toilets than women who were urinating or than men who were defecating.

My view is this an appealable point as men do not require the level of privacy women do.

Consider men actually use public urinals. There is no equivalent for women.

Men use the loos mostly to pee, otherwise to poop. Its a binary use. Any other use isn't suitable for work. And in the vast majority of cases men will stand to urinate. Women need privacy from men while washing their hands while using the toilet or in the general space of the toilet room. Women's bodies and functions are markedly different to men's.

Every single time a women has to urinate she has to remove all her clothing on her bottom half to expose her labia and rectum area.

Women at work will be managing menstruation. Later comes age related menopausal flooding. In many of these cases women need privacy to change their clothes and need privacy to navigate between toilets and sinks.

If women use menstrual cups, emptying in toilet and rinsing in the sink is common. The Workplace Regs ensure that sanitary disposal in stalls but they didn't consider impact of moon cups/ re-usable sanitary wear. Sinks are required for this use.

Statistically women are more likely to urinary tract infections (UTIs) due to anatomy, leading to frequent urination and discomfort. https://pmc.ncbi.nlm.nih.gov/articles/PMC8077804/

Women are more likely to suffer from IBS and require frequent access to loos in an emergency - https://pmc.ncbi.nlm.nih.gov/articles/PMC2693852/

In the UK more than 1.5 million women suffer from endometriosis. This causes painful periods that interfere with everyday life, havy menstrual bleeding, pinful bowel movements/when having a poo, pain when urinating/peeing. https://www.endometriosis-uk.org/what-is-endometriosis

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, Schedule 22 of the EqA (this can only be afforded to 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)

This is why women suffer direct discrimination if bio men are allowed to use the ladies, compared to bio women using the mens. And why the sinks need to be included in the envelope of the toilet space as they are essential to women's privacy.

Anyone else care to add to the list?

We know that men in positions of power offend. Often it's part of the thrill.

Given the number of historic abuse cases coming to light now of powerful men being abusers, why has no one remembered this?

I feel it's like McCarthyism in the USA must have been - people went round making accusations and ruining other's reputations, but eventually it exploded and stopped.

Would the Home Office have different vetting procedures?

The Home Office men were unable to remember to shut the door so the women were exposed the mens backsides. That moral propriety is tricky for the judge when she’s talking about letting men and women go in the same toilets.

Women don’t want to hear men wee. We all know stories of men wanting to hear women wee and the tales of golden showers (thanks to an alleged British spy alleged notes on Trump and Russia). Would these be picked up on vetting? It doesn’t matter about intent/ what’s true/ false it creates distress and distrust. These were toilets with door gaps so not normal mixed sex designs.

The smell was the other thing they complained about at the Home Office. In the end the women self excluded. That is something that door gaps improved. Ventilation is better. But men’s wee does have a different stronger smell (scientifically proven not just my view!).

Why is it never then men’s we are taking about? The column inches taken up by the women’s being made mixed sex by stealth or on purpose must run into hundreds of thousands of pages. That’s a lot of women getting upset.

https://www.mirror.co.uk/news/uk-news/female-staff-shun-mods-new-21177430?int_source=amp_continue_reading&int_medium=amp&int_campaign=continue_reading_button#amp-readmore-target

https://www.thetimes.com/culture/tv-radio/article/men-s-open-door-policy-starts-a-gender-war-in-neutral-toilets-qntgrdp90#:~:text=Test%20your%20knowledge,for%20building%20maintenance%20and%20modification.”

https://www.thetimes.com/uk/politics/article/home-office-women-driven-out-of-mixed-lavatories-qjclblb9f#:~:text=Matt%20Dathan,of%20the%20toilets%20quite%20distressing.”

Thinking back to the last episode of Inside no.9, I find in surprising that the judge is not aware that men leave the door open when they have a wee!