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

You can only appeal an ET decision on a point of law, not because you don’t agree with the outcome. Hopefully M’s legal team are all over it.

Presumably, this is the very type of "hold my beer" work that NC will be devoting her time to, having stepped back from chairing Sex Matters.

Tangental to this but shows what we are up against:

My local leisure centre said that they had listened to complaints that the toilets weren't up to standard. They used to have one set of Ladies with two cubicles. I don't know about the Gents obviously but the same amount of space allocated so1 cubicle and urinals, I guess.

Now they are very proud that they have two "gender neutral" toilets i.e. have two self contained rooms, one of which has baby change facilities. As far as I am concerned they have not improved them. I don't want to use mixed sex facilities so in my opinion they have made the provision worse - apart from the baby change. Fortunately I live nearby so don't need to use them often.

If you mean, you'd expect the 0.5% of men using the facility to commit more than 4% of the assaults (which is my intuition too) I think that comes from two sources:

• I haven't looked at where the 90% of assaults committed by men comes from, but that sounds low to me: perhaps it depends on the kind of assault we're talking about
• sadly, I think it's reasonable to think that the 0.5% of female-toilet users who are men are likely not to be typical of men, but instead to be far more likely than the average man to commit assault. Good men stay out so that bad men stand out.

Also, in any individual workplace female toilet, it's quantised. It's not that each one will have 0.5% of its users being male, because few workplace toilets are used by as many as 200 people (which is what it would take for 0.5% of users to be as many as 1 user). Far more likely it's either 0% of users are male (no transwomen around), or it's a much higher percentage, if there is a man who uses that particular toilet. Overall it's a silly argument anyway - we're not really talking about the actual statistical likelihood of being assaulted, we're talking about the fear of being assaulted which comes from a whole-society set of data plus personal experience, and we're talking about privacy and dignity.

Sad that it was a woman judge too. Does she really like sharing loos with the blokes when the blokes have a choice to share or use single sex facilities?

This judgement went to the parties on 24/11, so Naomi knew about it when it was announced that she was stepping down. They said it had been under discussion for months, so this can't have been a big part of it, but possibly it informed the timing, as she tried to make her diary work. I just hope she isn't also looking at a loss in the Sandie Peggie case.

Still we have to take comfort from the fact that both Girl Guiding and the WI have had to grudgingly admit that men aren't women.

I'm amazed at this verdict after following the tribunal. Anyway, onwards and upwards with an appeal.
Makes you think though when they're trying to reduce the use of juries in criminal cases and rely on a Judge's judgement. Give me a Jury anytime.

It seems to me that there are two errors of law here:

1. interpreting “case by case” to refer to an individual situation ie a workplace rather than as a universal category ie single-sex toilets. If this is how “case by case” is understood it will make the EA unworkable in practice. It will also create a great deal of legal uncertainty.
2. The issue of how many people complained and whether their harm was psychic or physical is entirely irrelevant to the legal principle.

Oh yeah I’m sure there will be legal fuck ups and NC and the solicitors will be all over it

I also find this a concerning point of view. It's not mathematically incorrect but it is also true that if there is just one other person in the toilet and they are a transwoman then (using the same statistics) they would be 9 times more likely to assault the other person than it they were female.

It is obvious that you are more likely to find another woman in the toilets than a transwoman but the concern is how much more vulnerable the user feels if they arrive to find a transwoman (or to have a transwoman arrive) in the toilets compared to another woman.

I suppose at least Maria wasn’t facing a job loss and the loss of income, unlike Maya for example

My reading (IANAL):

• FWS applies the Equality Act which is provision of goods and services and public duty. It therefore doesn't apply to workplaces. This is bullshit because employment is a service and trans people can expect to be treated fairly by employers with respect to hiring and firing under the Equality Act.
• Women don't need special privacy for washing hands under the workplace regs because they can wash hands collectively with other women. Again bullshit because why would the Regs state completely enclosed cubicles for mixed sex use?
• Women make up 10% of Leonardo's workforce, so even if men use the women's there are enough toilets for 12-15 women.
• The number of complaints was 0.05% and trans etc represent 0.5%, so trump Kelly. Basically no-one else complained.
• She had privacy for whennon her period.
• She said that the comparator is a man in the men's. She should have said a man in the women's.

If I didn't believe otherwise I would say the judge was begging for it to be appealed.

A point of law is surely that under workplace regulations they have to provide single sex toilets?

Yeah this is what my addled brain was trying to work out

Apparently the judge seems to think that this doesn’t matter.

And a woman dealing with her period is no different to a man having a shit

And there's no problem with a woman sharing basins with men if she's cleaning herself up after a period disaster, because toilet paper is available in the cubicle.

Maya Forstater's twitter thread has a curated selection of problematic statements in the decision: https://x.com/MForstater/status/1996231547159019866?s=20

My mind is blown at a great many aspects. But my heart is shredded at the memory of Maria very eloquently and painfully spelling out the realities of heavy periods and menopause, only to get a decision that her dignity had been protected because there was bog roll in the cubicle, to wipe the blood clots from her hands.

I believe this comes under the heading of 'lies, damned lies, and statistics".

This is going to get shredded if they can get an appeal.

Moral proprietary and social construct? For something there is no social consensus and there very much is a full backlash in progress about?!

Really?!

This isn't a point of law.

https://x.com/journalismseen/status/1996259935340867811?s=46&t=ZX_bLozRqm8etdGICMcAvA

The BBC have reported although not confident they have the correct Judge? Was it a man called Mark or a woman called Michelle?

Michelle Sutherland, salaried Scottish Employment Judge since 1.6.20

Is that actually in the judgement?
I have a friend whose peri flooding had her pouring blood out of her shoes down the sink in a restaurant bathroom.
Maybe the judge will tell her to pour it down the toilet next time.
But shoes don’t have spouts for accurate pouring, so if the blood goes everywhere it’s much easier to clean up from a sink than a toilet. You just use your hand to catch and throw water around and give the porcelain a rub, repeating until it’s clean. Anyone fancy doing that to clean the outside of a toilet bowl in a public place?
FFS.

Apologies if this has already been linked to above:
sex-matters.org/posts/updates/a-disappointing-judgment-in-defiance-of-the-supreme-court/

I wonder whether NC had an inkling that this judge was TWAW, which led her to look in detail at the panel for the Belfast Film Festival Tribunal.

On the plus side, there seem to be plenty of grounds for appeal, and hopefully it will be prioritised.