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

Well, the environmental charity Fidra has just 11 employees, and has initiatives such as workplace showering faciities to encourage cycling to work. A small workplace with optional facilities may of course legitimately have reason to provide pared-down facilities, but I wonder if Judge Sutherland, while working closely with the Operations Manager with responsibilities for EDI and HR, has accumulated biases and persuasions that may have muddled her thinking on this case?

As well as a huge number of women who will suffer in silence, give up work, become very anaemic there are also the women who need blood transfusions.

In 2022, the Scottish National Blood Transfusion Service confirmed that 175 women in Scotland received a blood transfusion due to excessive, frequent and irregular menstruation.

https://www.bbc.co.uk/news/uk-scotland-65532730.amp

Apologies I assumed the judge was a ‘he’ earlier as I can’t get over the naive comments about periods.

I think the judge has decided to go down with the ship, so to speak. That being overturned on appeal is a more attractive option than upholding the law and producing a first-instance judgement that will offend her family and friends. Judicial activism, in other words.

I think I might rather offend my family and friends than have my arse handed to me by the EAT!

I find the judgement so incredulous, do you actually think that’s a possibility? Would a judge ever do that?

Actually thinking of Victoria McCloud (activism and views) I could answer my own question. It just seems so bizarre.

It feels like the judge has abandoned any attempt to follow the law. This is perhaps explicable if they know that it's going to be appealed (by either side) and that it's worth a hit to their professional reputation for (what I can only imagine are) personal reasons.

In other words "I won't have the last word on this matter either way so I'm better off demonstrating that I"m a true ally and letting someone paid more than me deal with the fallout of a correct decision."

I'm especially agog at the "nobody else complained" argument.

What a nasty nasty judgment - full disclosure I haven't followed this trial in full due to work commitments at the time but the Judge basically says that Maria was using a toilet away from the men that were violating the privacy and dignity of women. Not because men were violators - but it was because Maria was experiencing menopausal flooding due to being a biological woman.

130. It was considered likely that MK’s use of the toilet facilities changed as a consequence of the (peri)menopause (significantly before 2019) and did not materially change as a consequence of her becoming aware in September 2022 that trans women were regularly using the female toilet block,or with the introduction of the toilet access policy in 2023, or with the changes made to the stairwell toilet in January 2025.

How cliche - dismiss what the woman actually says and dismiss her because she is you know an actual woman.

Thank you. I was so flabberghasted I even missexed the judge. Her turn of phrase is quite incredible.

I don’t normally post, I am one of those who reads everything and wishes I had the confidence of every woman here, I applaud you all.

But I am aghast at this decision. I felt like the world was finally waking up to this idiocy and common sense was returning. Agggghagg. Maria, please appeal. We will fund you.

If I had my way, the baseline would be the established configuration of single sex women's toilet exclusively for the use of women, single sex men's toilet exclusively for the use of men, and accessible toilet exclusively for the use of disabled people who actually need it, not a cheap workaround for transfolx who are 'uncomfortable' using the toilet designated for their sex.

A fourth mixed sex space is an optional extra if cost, space and disruption are not a problem.

The onus should be on the provider of the facilities to justify any deviation from that norm, not on employees to have to go to such extreme and difficult lengths to correct it, as MK did.

I would expect a judge to assert the requirement to provide the baseline provision, with any extras like mixed sex fourth spaces an option, not to defend a company for some complicated and unclear arrangement such as Leonardo's.
It shouldn't be up to a judge to tie herself in knots to justify their failure to do so.

I don't know if that makes sense. I feel strongly about principle rather than case-by-case decisions - the French expression 'À la tête du client ' keeps popping into my head, 'depending on what the client looks like', i.e. arbitrary.
What's the point in having detailed laws and regulations?

As Burke said, borrowing from Lord Coke:
It is the function of a judge not to make but to declare the law, according to the golden metwand of the law and not by the crooked cord of discretion.

I love that quotation

I agree. The whole thing seems oddly worded, a bit slap-dash.

“Workers are unlikely to know the biological sex of another worker" - I would love to know the evidence to support this.

Clumsy wording and muddled reasoning. I don't remember the judge coming across as inarticulate or struggling to keep up? The judgment doesn't paint her in a good light

A reminder that Lammy is doing away with Jury trials and leaving the decision on the innocence of guilt of accused people to judges such as these.

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

This has JUST BLOWN MY MIND.

Whilst I strongly object to Lammy's proposals, this is an employment judge. The new Crown Court Bench Division will consist of Recorders and Circuit Judges. As I said, nearly every barrister I know opposes the proposals, but this is not accurate.

I didn’t say ‘this judge’, I said ‘judges such as these’ - judges with political biases, whether intentional or not.

Ah I missed that. So did the judge it seems!

Absolutely.

She definitely hasn't experienced the sort of flooding I have had at work, where nothing short of a big pack of baby wipes and a full change of lower half clothes was going to sort it. I texted a colleague who met me in the ladies loos with everything I needed and checked I was ok. She has never mentioned it again.

The mess was horrendous, I was embarrassed and stressed and felt quite unwell with the sudden blood loss so was shaky and tearful. The thought of a man walking in to the toilets while I was trying to get sorted and my colleague was assisting me is intolerable.

I once flooded at night so badly that I had to get my dh up to strip and change the bed and then restock the loo roll and mop the bathroom floor - all while I couldn't move from the loo due to the clots I was passing.

I ended up hospitalised with anaemia and narrowly escaped a blood transfusion and had iron infusions (multiple) instead.

Gynaecology procedures have sorted me out now but for a few years I found my perimenopausal bleeding almost impossible to deal with. I once only travelled 2 junctions on the motorway before having to pull off and head into a supermarket to buy massive pads and new trousers to change into on my way to a meeting for example - I had been fine when I left home!

The idea that I could have sorted any of it with some loo roll and that I wouldn't have experienced even worse distress and upset with random men in the toilets with me is ridiculous.

(And fwiw the GPs and hospital drs who I discussed all of this with barely raised an eyebrow so it's not out if the ordinary for women to get in this sort of state!)

What gets me is there is no acknowledgement of the shame we feel when our menstrual blood is in spate, or even when it’s not.

It’s not a mere practical concern as this J seems to think.

On an average cycle having periods is normal but we feel so ashamed even when not flooding we keep it hidden, a secret, like we are doing something wrong.

We ALL know that shame, even women who don’t flood.

I have been in horrendous period related incidents from my early teens to menopause, from extreme pain, to passing glutinous clots to flooding. I went to see a GP about it once in my teens and all he did was prescribe painkillers. I kept all of it hidden out of shame.

Diagnosed with fibroid the size of a football in forties and uterus removed.

Yet when it was raised as an issue in thia ET I felt Shane and wished they’d not brought it in because I know how easily dismissed it is. I knew it gives judges lije this one the opportunity to undermine that shame we feel, to make us feel more shame, to dismiss and belittle how it feels.

we want privacy not just for yhose moments but because it is imbricated in who we are and how we feel about ourselves 24/7 — not just when menstruating.

when we anticipate we dont go out because even amongst other women it still fills us with shame but at least with other women we know they understand the shame — they will look away so as to preserve our dignity; they will pretend they haven’t seen us. That is so appreciated. It demonstrates an understanding that our dignity matters, it is being respected.

Men don’t know that language. They can’t know it.

it is outrageous to belittle the entirety of what is known to ‘toilet paper’ being available.

this is one stupid judge.

Reading the judgement is quite bizarre and very painful. It's as if the judge first started with what the result must be - 'All claims dismissed'. And then done her (sad and unimpressive) 'best' to retrofit arguments as justification.

It's also very poorly and (intentionally?) confusingly written. And much, much too long. It reads like one of those exam answers by an ill-prepared & panicking student who just commits a mass-brain dump to paper. Desperately hoping a few random sentences might scrape a mark or two.

Having now followed quite a few of these tribunal judgements it also seems oddly petty and spiteful. Usually the rulings are judicious, carefully considered and err on the side of compassion for all involved. I don't understand the rush to publish it in its current state.

There's an amusing 2011 Joshua Rozenberg article in the Guardian that complains about our inability to sack court judges who show poor judgement. He is particularly scathing about a certain Mr Justice Charles' abilities

"Lord Justice Wilson [the Appeal Judge] said he had spent days trying to understand the 484-paragraph judgment delivered by the family judge [Mr Justice Charles] in a big-money divorce case a year ago.

The appeal judge quoted from an article in the magazine Family Law by Ashley Murray, a Liverpool barrister. This began:

'There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Mr Justice Charles.'

www.theguardian.com/law/2011/feb/03/high-court-judges-poor-judgment#:~:text=What%20can%20be%20done,But%20they%20cannot%20be%20sacked.

The rush to publish in such reputationaly damaging form is interesting and a very red flag now you’ve pointed it out I think.

She either wants to get cracking on Christmas decorations or she wanted to get it out before SP ET. Is she, perhaps, such a narcissistic she thought this pish would steal its thunder?

Judge:She also gave evidence that as a young adult she briefly encountered a man in the toilets at university who she thought may have been lost.

Maria (from TT):Do i risk upsetting him? I made a joke of it, asked if lost, decided nott o hide in cubicle. Said he shouldn't be in there, etc. He realised I didn't want him in there, I didn't scream, but it was the first time I really felt trapped in that sort of space. It's a place of refuge. The first time you have a bad expeirenced, followed in street, groped etc you learn. THat was an eye opener.

It beggars belief.

Some of the same ground may be covered by Swift J in GLP's JR application, whose decision would be precedent-setting (High Court). I wonder if she thought about that as well.