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

"MK stated in evidence that when menstruating she was embarrassed using a shared basin when washing blood off her hands. Whilst it is accepted that menstruating woman may require to clean up blood, it is not accepted that this would be readily apparent to other toilet users given access to toilet paper."

EA2010 does not apply to WR1992 (Schedule 22).

WR1992 mandates provision for men and women (birth sex) separately.

WR1992 does not mandate policing of employees' toilet use.

Croft etc gave a discretion to employees to permit male employees to use female facilities in exceptional circumstances.

There is no need to consider medical treatments, birth certificates, GRCs etc because that would be unworkable.

T considered that complainant was not disadvantaged because there was a small number of women and transwomen, it was a secure, controlled environment, and there was plenty of unisex provision of good quality: the harassment claim thus failed. This was a fact finding so not appealable, but that does mean a claimant with different facts could have won.

There's a separate legal argument, that it's illogical not to interpret WR1992 on all fours with Schedule 3 EA2010 ie single-sex facilities at work must be single-sex to keep their status as exempt from liability under Schedule 22 EA2010. This removes employer discretion and obliges them to police toilet use. A closely related but not identical argument is that mixed-sex toilets disadvantage women more than men, leading to direct sex-discrimination which could similarly undermine Schedule 22 exemption from liability (on the basis that it goes against the spirit of WR1992 to do something which it was arguably designed to prevent). These arguments apply irrespective of the facts of a particular case.

The GLP JR application covers some of the same ground and is pending a decision.

It’s wrong. 100% of rapes in the UK in toilets are by men in my data collection. Many are not reported. Of sexual assaults and voyeurism I don’t think there’s a profession I haven’t come across where a man hasn’t committed a crime on a woman/child in toilets. Vicars, teachers, police officers, doctors. Most of these will have passed some sort of vetting.

There are no statistics on who commits what, where because no one collates them. This was remarked on frequently including by Panorama and Parliament (2015/6), Ofsted (2021) and yesterday in the Angiolini Inquiry.

The comment about the ‘lockable’ toilet is not correct if the company are following the Scottish building regs.

Men who end up in court for assault also say they are women at the time and then are tried as men. This complicates the judgement as does the orders they get - they are barred from entering women’s toilets and/or unisex toilets.

That’s some of my first thoughts. Much of my stuff is from England which have different regs. But the consequences of toilet designs are the same eg I have examples of several fatalities in Scottish toilets too.

Apologies the previous post rushed, am still at work.

Has that judge ever had to rely on public or workplace toilets???!!!How often have you sat down with relief before realising that there’s no frigging loo roll?
my last workplace was the worst for this due to those awful cats bum toilet roll dispensers. They got blocked so easily. At least once I resorted to getting tweezers out of my handbag to try and extract enough loo roll from the hole to allow the sheets to come through properly. It never worked.

Aw no, fuckity fuck. Poor Maria.

From the BBC article, "Judge Sutherland pointed out that only a single person, Ms Kelly, had raised a complaint - which amounted to 0.05% of the female workforce." Shows what Judge Sutherland knows about how hard it is for women to speak out about this.

The statistical argument is misleading because it fails to take sexual orientation into account. The vast majority of women aren't sexually interested in women whereas the vast majority of men (including trans identified men) are sexually interested in women.

Also you don't have to be "assaulted" to be harmed. We know it's not women who are planting hidden cameras, exposing themselves and engaging in voyeurism which are crimes typically committed by men.

Why is all that relevant? Either they are single sex spaces or they aren’t.

Maria had a workplace rep.role, and said in her evidence that other people had told her they were unhappy. So she was raising a complaint on behalf of them as well as herself.

We dont know what n is is this case, but it is >1.

The reasoning re: period blood is also wrong.

I had a really upsetting incident as a 13yo in school toilets where I got period blood all over my hands and tried a clean up job in the cubicle. Unfortunately the Mean Girls were hanging out in the loo smoking when I came out and headed to the sinks.

They spotted the blood (it isn't fucking invisible and dry loo paper won't remove it all) and it was all over the school by the end of lunch that I was a disgusting minger who had blood all over my hands.

I'm still scarred by it and I'm not almost 50.

That is a vile and heartless statement.

Judge Michelle Sutherland seems to be a current Trustee of the Scottish Registered Charity Fidra, and her bio says that in her role she works closely with the Exec Director and the Operations Manager. https://www.fidra.org.uk/who-we-are/

Michelle Sutherland
Michelle has a strong personal interest in the environment including passive housing. In addition to her wider responsibilities as a Trustee, Michelle works closely with the Executive Director and Operations Manager on systems of operational management.

Fidra's Operations Manager looks after HR and has in the last year recommended Danny at the LGBT Foundation on her Linkedin page for training on becoming an "ally" : www.linkedin.com/posts/catherine-amis-a318259_training-academy-lgbt-foundation-activity-7225041090452594690-HTtS?utm_source=share&utm_medium=member_desktop&rcm=ACoAAEfBD7UBKQg32aRzo6bAIAvxYSZo028KTHw

^Thank you Danny for a great two hours learning more about being an ally. I highly recommend those looking to gain knowledge and confidence in LGBTQ+ inclusion on either a personal or professional level to check this safe space out: https://lnkd.in/ejp7euu8^

Here are some of the LGBT Foundation's web resources on allyship: https://lgbt.foundation/?s=ally

Not a great outcome at all really and doesn't bode well for the future I feel.

Would it be unkind of me to wish a humungous menstrual flood on EJ Michelle Sutherland in the near future? Ideally at a time when there is no loo roll in the cubicle...

I strongly suspect there are many women at Leonardo UK, who couldn't risk losing their job - very small children & very large mortgage - so kept their heads down. Despite agreeing with the complainant, and hoping she'd prevail. Today's result must be a big unpleasant shock.

Leonardo UK is part of a sector that typically employs a much higher than average number of trans women workers. And these employees will probably be both very tech-savvy and highly active on social media. So you face a high risk of doxxing or being bad-mouthed within the wider industry if seen as transphobic.

Their female employees will have watched the trial closely and most would've been expecting a very different outcome. The majority of Leonardo's defence witnesses appeared rude and defensive (even misogynistic) when giving their evidence. But now that a win for Kelly hasn't happened the other women may feel (a) cheated and (b) guilty at not daring to also be a tall poppy.

Leonardo UK chose to pander to the delusions of those male employees who wanted to be women, at the expense of the comfort and well-being of its female employees. For Leonardo indulging a small number of men (0.5% of employees) is not only a legitimate policy aim, but one that outweighs its responsibilities to the much larger number of women (20% of employees). So for each trans-identifying man given the validation he wants, forty women have their right to a women's only toilet denied.

And this is what the LGBT Foundation has to say about trans identified peope's use of work toilets, in its "Unfair Treatment at Work Policy": https://lgbt.foundation/wp-content/uploads/2025/03/Unfair-Treatment-at-Work-LGBT-Foundation.pdf

"My employer is making me use the toilet facilities of my former gender or requiring me to use the disabled facilities, what should I do?

Gender reassignment is one of the nine ‘protected characteristics’ under the Equality Act 2010 and medical intervention and medical processes are not required for a person to meet the definition and acquire protection of the Act. ACAS guidance sets out that an individual should be free to choose the most suitable facilities for their gender identity, and states that transgender individuals should not be told to use disabled facilities. If you are being required by an employer to use the toilet facilities of your former gender or instructed to use the disabled toilets, this could amount to gender reassignment discrimination..."

But it's also about the fact that to exclude the risk of being assaulted in the toilets by a woman the company would have to spend a lot of money on getting rid of the current toilets and building totally individual toilets where no-one was able to assault anyone. Whereas there's an obvious and practical solution to the problem of the toilets being accessed by a small number of men who are far more likely to assault one of the other users than another woman is. Women's spaces are an efficient way of reducing risk, they're not a way of achieving zero risk to those who use them.

MK believes that trans women should not be permitted to use the female
toilets which she described in evidence as “ridiculous”. She considered that it
was prioritising the needs of a few men over the needs of hundreds of women.
She considered it as tantamount to permitting any man to access the female
toilets because in her view a trans woman and a biological man are materially
the same. She equated this with making the toilets mixed sex (i.e. unisex)
which she considered to be an awful, terrible idea because she has the right
to use the toilet without a male being there

is it just me or does this wording seem a bit unprofessional for a formal legal judgment?

Also, a trans woman and a biological man ARE the same. So said the Supreme Court!

This judgment beggars belief.

The tribunal’s reliance on the fact that only one woman complained is legally irrelevant. The Supreme Court in Essop v Home Office (2017) made it absolutely clear:

– A claimant does not need to show that every member of the group is disadvantaged
– A claimant does not need to explain why the disadvantage occurs
– It is enough to show that the policy puts the protected group as a class at a particular disadvantage
– And that the claimant personally suffered that disadvantage

That principle applies across the Equality Act – including sex discrimination. The size of the “group” has no bearing whatsoever on whether a discriminatory provision, criterion or practice exists.

To suggest otherwise is a fundamental misdirection in law.

This is what I was getting at - I was so surprised at what was said I was not really coherent. Yes her maths is correct - it was used in the same way in the quote about the %age of women complaining too, but she is using the correct maths to illustrate a different point iyswim. The maths could be done differently to show a different outcome. She seems to be doing this maths without an understanding of the context and the logic behind the arguments.

Well well......that is interesting

Excellent squirrelling.

I haven’t read the judgment but from the extracts it would appear J is torturing logic in a way that suggests bias.

I think if captured as the above would suggest it becomes very difficult for a judge to operate impartially and the judgment clearly seems to indicate the appearance of bias.

She seems to be suggesting that in a small ‘trusted’ workforce men must be trusted because they appear trustworthy which contradicts all legal approaches to safeguarding and the legal frameworks for safeguarding (IANAL)

Just to add - a finding of fact is appealable if it can be realistically argued that it was so unreasonable - perverse - that no reasonable tribunal could have found it.

I look forward to the grounds of appeal!

The Fidra Annual Statement to 2024 is clear that "All Trustees are active in the management of the Charity, together with the Director, who reports directly to the Chair, and they, not the employees, are considered collectively to be the key management personnel."

So if Judge Michelle Sutherland works closely with the Operations Manager, in her role as Trustee, and if the HR training has a particular LGBTQ+ Ally slant, then that's something she might be said to have been a 'key' influence over?

I guess she may have already declared it to clear any possible suspicion of bias, especially since she was sitting alone in making the decision on this case?

https://oscr-docs.s3.eu-west-2.amazonaws.com/sc043895-fidra-2024-signed-acs-redacted-8a3e8f9c-d850-f011-877b-002248008b2b.pdf#:~:text=Since%20its%20launch%2C%20Fidra%20have%20published%20a%20new%20report&text=LGBTQ+%20training%20and%20race%20equality%20and%20human&text=Fidra's%20investment%20objective%20is%20to%20preserve%20and%20grow%20Fidra's

I will say peri-menopausal flooding has only really been talked about in the last few years, which is great. I am 60 and had an early menopause, so my flooding happened in my late 20's. I had no idea what was going on. It was stressful. Certainly wasnt covered in Cosmo or on the news. No Internet back then. I dont know the age of the J. It could be that they are old enough not to have seen/read much about it and perhaps dont really understand the reality of it. I will say none of my friends, similar-ish age to me, but from different connections, have ever discussed flooding. So perhaps she and the panel are literally ignorant of the matter. They may believe it is only the claimant as a one-off. Perhaps that is a factual error to consider in the appeal.