Gaslighting, shame and silence
Hello! We have reached the end of the tribunal, which finished with the judge acknowledging the case was "very emotive" for both sides, and that, plus the sheer volume of information she had to consider meant we should "not expect a decision from me before Christmas". The structure of the day was relatively simple. Both parties had to get their submissions in by 9am, then, at 12 noon, a hearing began during which both parties were given the opportunity to comment on each other's written submissions. I have struggled with how to present this newsletter as the oral comments on the written submissions were presented to court without any observer or journalist getting sight of the written submissions until lunchtime. I think it is best to describe the oral arguments in this newsletter, then I will put some of the written submissions from both parties into a blog post over the weekend. Before we start, if you are new to this case, a quick summary: Sara Morrison (the Claimant) is taking her former employer, the Belfast Film Festival (and Respondent) to this tribunal, claiming constructive dismissal and discrimination against her for her protected gender critical/sex realist beliefs. The action stems from what happened when Morrison took part in a Let Women Speak event in Belfast on 16 April 2023. To read an interview with Sara about what happened to her after that day - click here. To read a summary of the first week of the case, click here. To read about the recusal drama last Friday, click here. Accolades for Elves A final bit of housekeeping just before we begin: it was announced yesterday that this week's Times' Lawyer of the Week is Dr Charlotte Elves, not for her work on Morrison v Belfast Film Festival, but on a case in which the Court of Appeal found the Chief Constable of Northamptonshire Police personally liable and in contempt of court for repeatedly refusing to hand over body-worn video footage of an arrest. At a sanctions hearing, the Chief Constable (Ivan Balhatchet) said: "The failings of my force has been appalling." Read a short Q&A with Dr Elves in The Times here, and read the BBC write-up of the case here. Congratulations to Dr Elves for being recognised. And they're off!
Naomi Cunningham went first, requesting the judge acknowledge the importance of the 3 July email, calling it of "enormous relevance" to the case. Cunningham argued that if the judge accepted her contention - that the 3 July email was part of The Evil Plot (click here, scroll down to the timeline at the bottom) - then it meant the Belfast Film Festival had not just acted in a "truly heinous" manner, it had "taken deliberate steps to conceal it and lied about it to this tribunal", and the circumstances which led to the email being sent should be part of the pleaded case (it was not part of the pleaded case leading up to the tribunal). Next, Cunningham addressed the evidence of Emmett Owens from Think People. Cunningham said he had not been cross-examined on his witness statement because it did little more than parrot the findings of his grievance appeal investigation and Morrison's side believe he was little more than a vehicle for delivering the Belfast Film Festival's pre-ordained outcome. Cunningham then highlighted the shift in attitude from Michele Devlin (CEO of the Belfast Film Festival) towards Sara Morrison. Initially Devlin was sympathetic and helpful to Morrison whilst she was experiencing the initial social media broughaha in April 2023, but when it became apparent the board wanted action, Devlin's attitude hardened. Cunningham noted that Morrison was not subject to detriment for the beliefs she held, she "just had to keep quiet about them." Her crime was participating in the Let Women Speak event. Cunningham also noted that the Belfast Film Festival's case had changed to add the "manner" in which Morrison had spoke on 16 April 2023, yet the court still didn't know what it was about Morrison's "manner" which merited investigation. Morrison's legal team hold that the Respondent acted when Morrison "had the temerity to express her opinion in public without covering her face so she couldn't be recognised".
The barrister then moved on to the alleged conversation between Devlin and Morrison as they walked through the Belfast Exposed exhibition in early 2023 and encountered a trans-identifying, or possibly a cross-dressing man doing manicures. Devlin allegedly said it would be great to have the time to get a manicure, and Morrison replied saying "Urgh! Not with it." This, says Cunningham, if it were true, would be "dehumanising" and "wholly unacceptable... transphobia". Cunningham said the Belfast Film Festival had repeatedly failed to "draw a proper distinction" between holding sex realist views, which is the right to "call a man in a dress a man" and actual transphobia - which would be calling a man in a dress "it". Cunningham suggested that it might surprise Belfast's trans activists to discover that the Belfast Film Festival had seen nothing in Morrison's expression of disgust worth investigating, if indeed she said it, which, said Cunningham, she didn't. Cunningham made the same point about Morrison's alleged encounter with Caleb J Roberts. Again, either the Belfast Film Festival felt alleged hostile transphobia by one of its employees required no action, or it thought it was implausible and ignored it. Cunningham suggested it was the latter. Cunningham also addressed the Belfast Film Festival's concern that what Morrison said would affect its reputation amongst patrons, community groups it had to work with and its audiences. Cunningham said it was "just not good enough" to advance this argument. The Respondent cannot defend a discrimination claim on the basis of how its audience or patrons might feel. Morrison's barrister then went to July 2023's invitation to investigation letter which set out the Belfast Film Festival's stance as being "inclusive". She also mentioned Devlin's "Trans Inclusional Feminist" t-shirt, which the CEO wore to Belfast Pride a few days later. These, according to Cunningham, were "a tell" that the Belfast Film Festival was hostile to sex realism and that the job of Inclusion Officer (the role Morrison held at the time), is only open to people "signed up to" gender identity theory. Yet, said Morrison there is nothing to indicate the role was restricted in that way. Cunningham also noted that the invitation to investigation cited the fact of Morrison having "spoken" at the LWS rally and that she had an "involvement" at the event. Cunningham said, post-Forstater, it would be "astonishingly stupid" for any organisation to initiate a formal investigation into any employee for having gender critical views, but the invitation came as close as it is possible to do without stating it in black and white. Cunningham then went to the infamous 28 June discussion, which festival co-chair Lisa Barros D'Sa said was little more than a chat about her, Michele Devlin and co-chair Marie-Therese McGivern's concerns, rather than a meeting when any decisions were taken. The barrister said Barros D'Sa's attempt to characterise this event as little more than a "hand-wringing" session is deeply implausible. It was arranged in haste at the prompting of Mark Cousins, and Devlin's email to Belfast City Council asking if they could put an event on at Pride was sent just hours afterwards. Cunningham says the timeline and documentary evidence suggests the investigation was decided on before it had the evidence to support it, and the 3 July email was the catalyst for generating the necessary evidence. Then we came to whether or not Morrison's contract allowed her to help out at an event like LWS without permission. Cunningham said any employment contract which stopped someone helping out at their children's school or a sporting club would be be both "onerous" and "oppressive" and that this interpretation was shared by Marie-Therese McGivern when she gave evidence.
Cunningham then turned to the failure to refer Morrison to Occupational Health for months, the retrieval of her keys, the failure to give her her work email password, her removal from the Belfast Film Festival's shared drives and her non-appearance in the Festival programme - taken together, Morrison was entitled to believe that this was "part of the process of shutting her out". Cunningham drilled into the email password issue again, suggesting that the failure to send it in July 2023, then the manner of sending it in October 2023 (in a bundle of documents without drawing Morrison's attention to it), before finally giving it to her in November 2023 was done deliberately to keep Morrison from accessing her emails. When Devlin told Morrison in November she'd already sent the password to her twice before - this was "gaslighting" and "a shockingly cynical and cruel" thing to do to an employee who was off sick with mental health issues. Cunningham broadened out her point. Gender identity theory was such a novel and counter-factual concept, it could only be sustained by "shaming and silence". Cunningham invited the judge to consider the relatively recent tribunal cases on the subject and pointed out that if there had been an age old social discussion about whether men can change sex just by saying so there would be a history of that discussion going back many decades. There isn't. Cunningham finished her submissions after lunch on three technical points a) that the outcome (in Belfast Film Festival's favour) of the grievance appeal was a perfectly reasonable "last straw" to prompt Morrison's resignation and claim for constructive dismissal, b) if the judge does agree that the 3 July email was a ruse then it's hard to avoid an award for aggravated damages and c) there was no excuse for the inordinate delay to the outcome of the grievance appeal. Doherty's Defence
The Belfast Film Festival's barrister, Sean Doherty, then had his turn. He dealt with two of Cunningham's last points first saying a) that the aggravated damages claim was actually a duplicate of another element of Morrison's claim and therefore didn't need to be considered at all b) the grievance appeal process was complex and therefore the time it took was justified. Doherty then addressed the problem with Morrison's case as he saw it. She had become, in the words of Belfast Film Festival director Mark Cousins "dirty by association" when she shared a platform with those she did at the LWS event. Morrison was also "prima facie in breach of contract" for working at the event, for the way she manifested her beliefs, and for calling women's groups in Belfast "a racket". Doherty went to case law on the issue - Higgs v Farmor's School, which states: "If the dismissal is motivated not simply by the expression of the belief itself (or third parties’ reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, then the effect of the decision in Page v NHS Trust Development Authority is that the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature." Doherty reminded the court that we were nowhere near dismissal. There was not even disciplinary action. An investigation had been launched. That was all, and an investigation is a neutral act, which may well have exonerated Morrison. The barrister went to Naomi Cunningham's idea that the word "inclusive" was "a tell" in the invite to investigation. Doherty disagreed. He told the court the Belfast Film Festival was in no way a "cold house" for sex realist views. It was about the Belfast Film Festival being an inclusive organisation. "Mark Cousins in his evidence was very clear that the festival is a 'broad church' - he was very clear that whilst he disagreed with the Claimant's opinions, she was nonetheless entitled to hold them." Doherty cited another part of Cousins' evidence - his claim he found it "jaw-dropping" Cunningham would suggest his messages to Devlin and his fellow board members were evidence of him agitating to get Morrison out of the organisation. Doherty turned it round and asked the judge to consider not whether it was the Belfast Film Festival who forced Sara Morrison out because they didn't like her opinions, but whether Morrison "voluntarily chose to resign" because their views did not align with hers.
Doherty dismissed Michele Devlin's appearance in a Sinn Féin election video as a "comparator" in the alleged unequal treatment of Morrison. He reminded the court that Devlin had the full permission of the board to take part. As there was no actual comparator, the court had to consider a hypothetical one, which was an employee who "publicly speaks at a rally, having some kind of role at that rally without board approval and expresses that political opinion in a way which causes the employer to receive complaints and causes individuals to question the reputation of the employer." He continued: "Most, if not all the Respondent witnesses said that if anyone expressed any view which caused 'blow back' for the organisation, then there would be an investigation." Given what had happened as a result of Morrison's participation in LWS: "What else is an employer supposed to do?… What else was the Film Festival supposed to do?" Doherty said "the Respondent accepts the Claimant's sex-realist views are political opinion - but if you find that calling women's groups "a racket" is not a political opinion, then this case must fail." Doherty addressed the Caleb email alleging Morrison had been transphobic towards her and the fact no action was taken. The Belfast Film Festival, Doherty reminded the tribunal, was a "tiny" organisation. "Do smaller employers tend to suspend? What would it achieve?" - there was no need to keep Morrison away from anyone as Caleb was not in the building. "Suspension is not a neutral act", he said. "After suspension most people are usually out the door." Doherty suggested the fact Sara Morrison was not suspended "should be to the Respondent's credit." As for the contractual requirement to inform her employer about any secondary employment, Doherty said that in cross-examination Morrison had admitted having "some kind of role" at the LWS event beyond speaking, and her contract stated: "You shall not without the express permission of management engage in any paid or unpaid activity which may directly conflict with the business interests of the employer or its members or which may interfere with your normal work." Doherty said that unless the meaning of the word "any" had changed, Morrison had, on the face of it, breached her contract. An investigation might well side with Cunningham's interpretation of the contract - that it was not aimed at that kind of work - but the employer must be allowed to conduct an investigation. Doherty said the decision to investigate Morrison was made by Michele Devlin, supported by her co-Chairs Lisa Barros D'Sar and Marie-Therese McGivern. He noted the tone of Devlin's response to Morrison's resignation letter sent 17 month later - which ends: "I wish you and your family well and hope you find satisfaction in whatever direction your life and career go next. With warm regards, Michele"
Doherty noted the Claimant's case was that there was hostility towards her at the Belfast Film Festival. Doherty said that Devlin's letter was not hostile. He pointed out that many of the witnesses liked Morrison and valued her as an employee. It was "regrettable and sad" that the situation had ended up at a tribunal, but unfortunately, Morrison had "jumped when she didn't have to". Doherty returned to Cunningham's claim that the Belfast Film Festival did not understand the difference between sex realism and transphobia. He said the Festival did know the difference, and only didn't act against Morrison's alleged transphobia because it is a "tiny organisation". It did, however, act when something Morrison did attracted complaints and criticism. "The crucial difference is the way in which the Claimant manifested her political opinion led to blow back. That is why there was an investigation... that is not discrimination." Doherty went to the grievance appeal outcome - which prompted Morrison's resignation. He told the court that if there was a complaint about any unfairness in the grievance appeal process then it should have been properly put to Emmett Owens (who conducted the investigation) in cross-examination. He was not cross examined. There was nothing wrong with the grievance appeal process. "So the constructive dismissal claim must fail." Doherty also went through Mark Cousins' email in which he wrote: "'I'm standing up for the rights of women" is the argument used by conservatives and religious people in several countries, and a new staple of the anti-LGBTQ anti-lslamic right". Doherty said this was not an act of harassment against Sara Morrison as claimed, nor was it a manifestation of Cousins' political beliefs, as claimed. It was a concerned board member writing an email which was never even sent to Morrison. She only saw it when the parties got to the "discovery" stage of this legal process. Doherty ended by highlighting what he saw as the "fatal flaw" in Morrison's case: "An organisation must be entitled to investigate when there is damage or suspected damage to the reputation of the organisation". The same, he said applied to a suspected breach of contract: "The organisation must be allowed to investigate - what else was the Film Festival supposed to do?" Sturgeon's last words At the end of the hearing the judge acknowledged how "emotive" the case has been "for everyone in this room". She said the case had generated a huge amount of information and told the court "I intend to take a lot of time to go over it - do not expect a decision from me before Christmas." The judge thanked both parties for the work they had done in presenting their case "it has not gone unnoticed." She ended by saying the court was short-staffed and she was somewhat at the mercy of the President of the Belfast Employment Tribunals as to how much time she would be allocated to work on the case, but reassured the court she would "get the decision out as soon as we can." And there the day, and the tribunal, ended. Thank you, but not goodbye I'm sitting in my plane seat as I write these last few words. I want to get this out before we take off, so forgive me if the following seems a little hurried! I would just like to offer up my profound thanks to everyone who has followed this newsletter. I had no idea if covering this case was going to be viable or if there was going to be enough in it to sustain interest. I need not have worried. There was drama from the get-go, and this is clearly an important case. I am deeply grateful to everyone I met at court who tolerated my presence, particularly both parties' legal teams who seemed as committed to open justice as I hoped they would be. I'll get the best bits from the written submissions up on the website over the weekend. Thank you again. Nick This is the GenderBlog newsletter. If you have been forwarded it and would like to join the mailing list so each newsletter and GenderBlog blog post drops, freshly-baked, directly into your email inbox, please consider making a small donation via the donate page on my GenderBlog website. Thanks. © Nick Wallis 2025 |
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