As subscribers to the GenderBlog newsletter will know – yesterday was the final day of Morrison v Belfast Film Festival at the Belfast Employment Tribunal. Sara Morrison has made a claim against her former employer, alleging discrimination for her gender-critical/sex-realist beliefs and constructive dismissal.
In yesterday’s newsletter I laid out the closing oral submissions from both sides. This blog post records excerpts from the written closing submissions of Sara Morrison’s team. Click here for the written closing submissions from the Belfast Film Festival. Both are really interesting for what they say about the case and the context they present. The Belfast Film Festival submission has lots of useful case law. Sara Morrison’s submission has an excellent timeline.
If you are new to this story, you can read:
– an interview I did with the Claimant, Sara Morrison.
– a transcript of the speech made by Sara at a Let Women Speak event on 16 April 2023 (day zero for this claim)
– a recap of the evidence from week one
– a full telling of the Recusal Drama on Friday 14 November
The following is taken from the Claimant’s written closing document. It has been lightly edited (mainly formatted) to aid readability. It is therefore not an exact word-for-word facsimile of the document submitted to the tribunal yesterday by Naomi Cunningham and Charlotte Elves (Sara Morrison’s counsel). All transcription and editing errors are mine.
C = the Claimant, Sara Morrison, R = the Respondent, the Belfast Film Festival.
The Claimant’s case
Introduction
There are two simple questions at the heart of this case. Did R launch an investigation of C’s conduct and take the other steps of which she complains because of her manifestation of her political opinion? And did R deliberately provoke complaints against C as an excuse to launch an investigation of her conduct?
The facts
Sara Morrison (C) was employed by the Belfast Film Festival (R) as Inclusion and Audience Development Coordinator from February 2020. C holds what have come to be known as “sex realist” or “gender critical” beliefs.
On 16 April 2023, C attended a Let Women Speak public meeting organised by Kellie-Jay Keen, otherwise known as Posie Parker. As C explains at par 8 of her statement, such events “emphasise the importance of allowing women to express their views, particularly on issues that directly affect them, such as reproductive rights, safety, and sex-based rights”. Let Women Speak is widely associated with sex-realist or gender-critical opinion, and the event on 16 April 2023 was targeted for counter-protests and attempted disruption by a number of individuals and groups taking the contrary view.
C’s speech at the event was videoed, and on 18 April a tweet from Michele Devlin, R’s CEO, received a reply complaining that its inclusion officer had been seen at an “anti-trans” event. The video footage was posted, tagging R’s X account. Ms Devlin hid her original tweet in order to try to calm the situation.
That strategy appears to have succeeded; neither party has alluded to any further adverse comment on C’s speech for the rest of April, and when it was suggested to Ms Devlin in cross-examination that the tribunal could conclude that she had been pretty successful at the time in damping down the social media storm, she replied “Possibly”.
Nothing further of significance in this story happened until R’s next board meeting on 4 May 2023. Mark Cousins was not in attendance. Board member Lucy Baxter attended that meeting late, and brought up the matter of C’s attendance at Let Women Speak under AOB. Ms Devlin’s note of that contribution reads:
“Baxter brought up the issue of SM (Sara Morrison) the BFF Inclusion / Audience Development Co-ordinator speaking at a controversial “Let Women Speak”‘ public rally at the Big Fish in the city centre on April 16th. LB stated that several friends had mentioned this to her. It was expressed that the rally was shouty and boorish in its tone, with anti-trans, antiLGBTQI+ sentiment throughout. The input from BFF I&AD Co-ordinator was a criticism of many groups in the women’s sector – the link is still online, and SM piece can be found at https://www.youtube.com/watch?v=-LF5Nn-rNfY.”
The following day, Ms Devlin wrote to the two co-Chairs, Lisa Barros D’Sa and Marie-Therèse McGivern, about the situation. She said this:
“In your capacity as Chair(s) I wanted to inform you both of an issue that came up a few weeks ago. I managed the initial fall out from it and then parked it until l could get some headspace, specifically get the Docs Ireland Programme finalised and away to the printer.
“(18/04/23) this (below) was tagged to one of the tweets I had put out about a BFF GFA25 anniversary event. I immediately removed it (hide setting) from my twitter timeline. Sara Morrison (Inclusion/Audience Development) explained to me she had spoken at a ‘Let Women Speak’ rally; she said she was now being harassed / trolled / stalked on social media and had contacted the police; she got very upset; I calmed her down and decided to wait until she was less wound up before I spoke with her further on it. It seems she has personal issues which are connected.
“Yesterday at the board meeting Lucy Baxter mentioned it to me, that a few people she knew had asked her “what is going on that a BFF employee is speaking at this anti-trans, right wing event” (Lucy was very late and I updated her on zoom once everyone else had left the meeting which is why the rest of the board missed this conversation).
“(05/05/23) I was at a meeting today and Pedro Donald the owner of the Sunflower said to me ‘what is going on with Sara Morrison’ – that a number of people had said to him, “what is the BFF Inclusion Officer doing speaking at a rally with this far right-wing crowd.” He added that the reputation of BEF as a progressive LGBTQ supportive organisation was at risk. The video of the speech Sara made at the rally is here: https://www.youtube.com/watch?v=-LF5Nn-rNfY the relevant part starts at 01:03:43. It lasts for around 5 mins ish.
“I thought I would check in with the Equality Commission on this, and read through our policy documents to see if we have reference to this type of thing. If you would like to chat next week? or email me your thoughts? Thanks a million Michele“
On 18 May, as reported by Ms McGivern in her email of 19 May to Ms D’Sa, Ms McGivern and Ms Devlin spoke on the phone about the situation and “made a number of plans”. Ms McGivern had heard about advice that Ms Devlin had received from the Equality Commission, and seemingly in light of that advice, it was agreed that R needed to review its contracts of employment and update its policies. Ms McGivern acknowledges in her email that this process “all seems a little bureaucratic”. There is no suggestion at that stage that an investigation of C’s conduct is necessary or possible.
On 25 May 2023 at 16.55, Board member and previous Chair Mark Cousins messaged Ms Devlin indicating that now he realised that C had attended the Let Women Speak event, the situation was more serious than he had realised. He said he would like to email the Chairs, and did so at 17.22 the same afternoon. He said:
“I tried to find the footage of our staff member’s speech, but haven’t. However, I saw a report of a rally in Belfast at which Parker Posey spoke. I’m sure you’re aware of Posey’s previous comments, but if our staff member shared a platform with her, then this is even more serious than I thought.
“As a board member l’d like to back you in whatever investigation or process is happening. I know the staff member in question has a personal family story here – and I like her a lot but the principle is clear. Cultural festivals are, amongst other things, acts of solidarity with our fellow citizens, especially those whose rights are still contested.
“Obviously we can’t control the thoughts of our staff but we can express love rather than something much more negative.“
In response, on 26 May 2023, the following day, Ms McGivern said “It will take a bit of work to sort this completely but we are already on the right track.” There was still no suggestion that an investigation of C’s conduct was called for. Nothing further of significance in the story appears to have happened until 25 June 2023, when Mr Cousins emailed Ms Devlin, Ms McGivern and Ms D’Sa (in other words the two co-Chairs and the CEO) . He said:
“On Friday night, in a bar, our staff member Sara Morrison raised the subject to me of her speech at the trans rally. She said that she knew that Michele had talked to me, that she is standing up for the rights of women, that she’s “not anti anything” and told me that it’s about her son. I told her that this was not the right time to discuss it – we were surrounded by festival guests. I found the whole thing troubling for several reasons. (1) There seemed to be the suggestion that Michele of spreading false information; I told Sara that I had heard reports of her speech from several sources including other board members. (2) There was no hint of regret for, or doubt about, what she did. As you’ll know “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-Islamic right. (3) If I remember correctly, her child is a trans woman, so she is misgendering her here (1 might be wrong about that). If Sara is saying this to me – a board member, vocal supporter of trans rights and friend of Michele – I think it’s possible to imagine that she is being less careful elsewhere. I therefore feel that we need to accelerate the process by which this is sorted, if possible. Michele, as you know, on Friday. I’m supposed to present with you our pitch for the big Hearth project. Sara’s is named as part of the team for that project. I think her name should be removed pending the resolution of this. We can’t have an inclusion/diversity officer who, many weeks after making such an ill-advised speech, is still standing by her actions completely.“
On 27 June, Ms Barros D’Sa responded, apologising for having failed to do so more promptly, agreeing that the situation with C was growing more rather than less concerning, saying “We can’t leave things as they are,” and proposing a chat with Ms Devlin and Ms McGivern the following day.
Exactly what form that chat took and what was said seems to have left no documentary trace, and very little trace in the recollections of the three individuals involved. Neither Ms Devlin nor Ms McGivern makes any mention of any conversation on that date in their witness statements. Ms Barros D’Sa says only in her witness statement (par 6) that she had this conversation “by phone call” and that Ms Devlin and Ms McGivern had echoed her concerns. In her oral evidence, details of the conversation became if anything more obscure, in that she was unable to say whether she had spoken to both Ms Devlin and Ms McGivern together on one three-way call, or had spoken to them separately. One thing that does seem to be clear about this call is that Ms Barros D’Sa spoke to both Ms Devlin and Ms McGivern, either in two separate 1:1 calls or in one 3-way call.
On Thursday 29 June, Ms Devlin emailed C at 13.20 asking her for “our LGBTQ list of groups / contacts from =our inclusion database”. She followed up at 16.49 the same day saying “It should only take 10 or 15 mins cut and paste. Tomorrow would be great.” In fact C responded the same evening at 19.06, sending a list of 11 contacts.
On Monday 3 July at 17.51, Ms Devlin sent an email with subject-line “PRIDE ON THE BIG SCREEN _ Belfast Film Festival IN PARTNERSHIP WITH THE SUNFLOWER JULY 30TH 2023” to 49 addressees. The first addressee, in the “To:” box, was C, and the second was Pedro Donald, proprietor of the Sunflower. All other addressees were listed in the “Cc:” box. Ms Devlin explained in evidence that the much longer list of addressees was compiled by her and Ms Morrison in the course of 3rd July. The message proposed an event called “Pride On the Big Screen” immediately after Belfast Pride, on 30 July 2023, and proposed “co-designing” the event with those addressed.
At 9.06 the following morning, there was a “reply all” response to this email from an organisation called Queerspace. The email asserted that C had spoken openly against trans rights, that the content of her speech was “distressing”. It implied that her participation in the proposed event would inevitably have the result that trans people were not welcome at it, and it would not be safe for them to attend. Queerspace is not a women’s sector organisation, nor did its email mention the women’s sector or C’s criticisms of women’s sector organisations.
At 9.28 that morning, Ruth McCarthy from Outburst replied, also copying all addressees. Ms McCarthy said that C had spoken openly at an “anti-trans event”, accused her of “legitimising an anti-gay fascist” and “firing up division”. Outburst is not a women’s sector organisation, nor did Ms McCarthy’s email mention the women’s sector or C’s criticisms of women’s sector organisations.
At 10.59 that morning, Ms Devlin emailed the Ms McGivern and Ms Barros D’Sa. She said:
“Yesterday we sent this email to all LGBTQ groups on our database, ! worked with Sara to draw up the list and we jointly wrote this email. Sara was concerned about sending it from her email address, because of an issue she had with Alliance for Choice – I told her it was her job as inclusion officer that it should come from her, but if it would help I would send it from my email address and cc her in.”
She then embedded the text of her 3 July email in the message, and concluded:
We have had a few positive emails back. And we have had 2 others which I will forward to you separately. We have also had some tweets from Queerspace – which I will send to you FYI.
At 11. 16 the same morning, Catherine Couvert of the charity Ardoyne replied to the messages from Queerspace and Outburst, echoing what they had said [313]. Ardoyne is not a women’s sector organisation, nor did Ms Couvert’s email mention the women’s sector or C’s criticisms of women’s sector organisations.
At 13.05 the same day, Sarah Williams, an employee of Outburst, made her own views known. She accused C of holding and publicly sharing “negative opinions about Trans people”. She referred to her “very public and very dangerous opinions” which she said “quite literally impact the health and well-being of people I hold dear”. She also referred to “instances of transphobic comments and behaviour in her capacity as a team member of the Film Festival”. Ms Williams’ email did not mention the women’s sector or C’s criticisms of women’s sector organisations.
At 14.57 on 4 July, Anne Dougan of R’s external HR provider, AAB, invited Ms Devlin and Bethany O’Neil, one of her colleagues, to a Teams meeting at 4 pm. Ms Devlin did not mention this meeting in her witness statement. When asked about the timing of the decision to engage AAB in cross-examination, Ms Devlin could only say “We had already engaged them for other work at the time”.
At 15.23 that afternoon, Ms Devlin emailed Ms O’Neil saying that she had understood the latter was going to share some data with her in advance of the meeting. Ms Devlin did not volunteer anything about what kind of data she was expecting.
At 21.12 the same evening, Ms Devlin emailed Ms Barros D’Sa and Ms Devlin forwarding Sarah Williams’ 13.05 email. She said:
“This was an error (not to have BCC’d everyone in the circular email). The bit highlighted is of most concern. We need to reply to these 3 critical emails tomorrow. I will send all the info to HR company now.“
Ms Devlin denied in cross-examination that open-copying all recipients of the 3 July email had been a deliberate tactic to facilitate multiple complaints against C.
In the course of 4 July, a tweet was drafted and approved by the Board in response to complaints that were starting to appear on X. The tweet finally sent (with C’s agreement or acquiescence) said:
“We have been made aware of the incident and are investigating. We want to reassure you that Belfast Film Festival passionately supports your values. We will celebrate and defend them.“
On 5 July 2023, Ms Devlin emailed R’s Board about the responses to her 3 July email. She said:
“I am sending you a note to flag up an issue which has emerged over the past few days, regarding a member of our staff speaking at a rally in Belfast in April this year. I have been liaising with the Chair/s to resolve this matter – I know some of you are aware from social media and conversations you have had with your own friends and colleagues. The chair/s and I are drafting a statement which will go out today. I will run it by you all in advance so would appreciate it if you could cast your eye over it before it goes public.”
On 5 July 2023 there was an email from Lola Petticrew, an actor, complaining that C had spoken at a “transphobic rally” (but not mentioning the women’s sector of C’s criticism of it); on 6 July (or thereabouts) [216] a tweet from @ShatterBub complaining of “blatant transphobia” (also not mentioning the women’s sector).
The same day R posted online the following statement:
“Belfast Film Festival hold central values of inclusivity and have a highly respected track record of support for the LGBTQI+ community throughout our 25+ year history. We fully support Belfast Pride’s focus on trans rights for the 2023 Pride celebrations. We are currently reviewing concerns raised relating to diversity matters. Please be assured we take all concerns relating to inclusivity issues very seriously. We are looking forward to delivering the Pride on the Big Screen event with our usual commitment to inclusivity and solidarity; and we want to assure our audience that everyone will be treated with the utmost respect and dignity at this day of screenings, and at any events we hold in the future. We passionately support, and will continue to celebrate and defend, the LGBTQI+ community.“
On 6 July 2023 at 6.35, Mr Cousins messaged other members of R’s Board to say that he thought C should be removed from any trans or queer projects straight away. He added “We should then inform the queer groups who are rightly criticising us. We can’t ask trans people to work with her in any way, It is deeply disrespectful to them.” Mr Cousins did not suggest at this point that there was a problem in C’s relations with the women’s sector. Other members of the Board agreed, and at 6.49 the same day, Ms Barros D’Sa added her voice to the general agreement and said, “Michele will update today but she has been busy getting solid HR/legal advice and a full formal investigation is in train to commence on Sara’s return from leave.”
On 7 July 2023 at 9.18, Ms Devlin sent Ruth McCarthy of Outburst Arts an email in which she said:
“The only thing BFF was aware of was Sara’s participation in the Rally on April 16th. The difficulties of having a voluntary board made it problematic for me to get a fully quorate board meeting pulled together whilst in the run-up to delivering Docs Ireland – my workload took over. We are a small under-resourced organisation – only Sara and I are full-time, and we have a part-time Marketing Manager who becomes F/T at festival periods, and a P/T administrator. In hindsight the board member who flagged ‘the rally’ up to me should have requested an emergency board meeting. Regarding altercations with individual trans people – I have no knowledge of this. If you know of someone please ask them to submit a complaint to me in writing, detailing the altercations. Also, a direct email to me at the time of the rally complaining about our staff members participation in that would have immediately escalated the matter as a key priority for us. If the LGBTQ community do not wish us to go ahead with the planned screening day we will cancel it. It was planned as a gesture of solidarity “for’ the community not ‘against’ it.“
On 16 July 2023 an actor called Hazel Doupe emailed Ms Devlin complaining that C had spoken at a “transphobic rally” and urging her to suspend C from her role. That message did not mention the women’s sector.
On 24 July 2023, C emailed Ms Devlin from her gmail account asking Ms Devlin to retrieve or reset the password for her work email. Ms Devlin reset the password, but instead of replying to the gmail message in which C had requested it, she sent the new password to C’s work email, which, not having the password, C was unable to access.
On 25 July 2023, Bethany O’Neill of Think People, R’s HR advisers, emailed C a letter inviting her to an investigation meeting the following day. In the last paragraph of the email, Ms O’Neill apologised for not using C’s work email address, explaining that Ms Devlin had told her that this would be the best way to contact her as her laptop was in for repair.
The attached invitation explained that the investigation, which was to be conducted by Ms O’Neill and Ms Barros D’Sa, was about the fact that C had spoken at what was described as a ‘“Posie Parker” rally’ and a conversation that she had had about that event with a Board member (Mark Cousins) on 23 June 2023. The letter referred to the possibility of investigation of “these matters and any other issues that may come to [the panel’s] attention during the course of the investigation.” Perhaps unsurprisingly by this point in the story, the letter made no reference to the women’s sector or C’s criticisms of women’s sector organisations in her speech at Let Women Speak
C responded the same afternoon to say that she would not be able to attend the proposed meeting because she had been advised by her doctor to take time off work because of stress [396A].
On 28 July C made it clear in a WhatsApp chat with Ms Devlin that she still couldn’t log into her email because she didn’t have the password [750]. [The password story resumes on 25 October 2024, below.]
On 29 July, Ms Devlin posted on X photographs of herself at Belfast Pride wearing a t-shirt bearing the slogan “trans-inclusional feminist”.
On 31 July, C presented a grievance complaining that in deciding to investigate her conduct, R was discriminating against her because of a perception of her views, and asking for clarification of when, by whom and how it was decided that her conduct should be investigated.
On 3 August 2023, Ms Devlin requested the return of C’s office keys.
On 10 August 2023 Ms O’Neill proposed that she and Ms Barros D’Sa should now hear C’s grievance instead of conducting the investigation, and on 15 August 2023 [398], C was sent an invitation to a grievance hearing on 17 August 2023.
On 21 August, R’s book-keeper, Moyra Lock, emailed C to inform her that she would receive statutory sick pay, and on 25 August , Ms Lock explained that since C had been paid a full month’s salary on 25 July, the overpayment would be recovered at a later date.
On 12 October 2023, R removed C from the Film Festival programme for November 2023.
On 19 October 2023, C asked Ms Barros D’Sa in an email whether R was proposing to make an occupational health referral. None had been made before that date.
On 25 October 2023, R sent C a 67-page DSAR response, within which was included Ms Devlin’s 25 July email providing with a new password. The covering email did not draw C’s attention to the fact that her password was contained in the DSAR response, even if it would have still been usable by that time.
C filed her ET1 on 26 October 2023, and sent Ms Barros D’Sa a further statement adding to the matters she wished considered in her grievance on 16 November 2023.
On 24 November 2023, Ms Barros D’Sa set an occupational health referral in motion.
On 26 November 2023, Ms Devlin wrote to C (this time to her gmail address):
“I have recently been made aware that you haven’t been able to access your work email, I had sent a password to you in July and again in October. Could you advise me as soon as you get this and all works for you okay. The previous password is now defunct – See above new password.“
C replied on 11 December 2023:
“I am very poorly. I have been medically advised not to engage in work- related matters. I intend to follow this advice. I remain under medical care/review... I have no record of receiving an email from you either in July 2023 or October 2023 providing a password.”
There is no reply from Ms Devlin in the bundle, nor, when accused in cross-examination of gaslighting C by making it sound as if she had twice previously sent her password in a form in which she could have been expected to find it, did she suggest that she had replied to set the record straight.
On 27 November 2023, R appointed Keara Paterson of Think People to hear C’s grievance. The parties having failed to agree any practicable arrangements for C to be accompanied at the grievance hearing, it was agreed to conduct it as a paper exercise. Ms Paterson sent C a list of questions on 9 January 2024, which C answered on 30 January. Ms Paterson wrote to C on 15 February 2024 asking her patience given the extensive documentation provided, and the need to segregate and sequence the documents.
Ms Barros D’Sa and Ms Paterson then conducted interviews with Mark Cousins, Michelle Devlin on 15 March 2024, Mary Lindsay, R’s Head of Marketing on 28 March and obtained written answers to questions from Moyra Lock on 22 April 2024.
A grievance outcome letter and report were issued to C on 4 July 2024, both giving only Ms Paterson’s name as the investigator. C was told that any appeal must be made within 5 working days, although no such time limit appears in R’s grievance procedure, but when she appealed by her email of 8 August 2024, her appeal was accepted.
C’s grievance appeal was heard by Marie-Therese McGivern and Emmett Owens of Think People at a meeting on 30 September 2024. The grievance appeal outcome was sent to C on 21 November 2024, Ms McGivern having received it in draft and approved it earlier the same day. The covering letter was signed by Mr Owens alone, and the report presented as his sole work.
C resigned by letter dated 26 November 2024, explaining that the appeal outcome had extinguished any remaining hope she had of being able to return to work.
Sex realism v gender identity belief
R accepts that C’s belief is a political opinion for the purposes of the protection of the Fair Employment and Treatment (Northern Ireland) Order 1998 [at par 2 of its 15 January 2024 grounds of resistance].
Before dealing with the issues, and because this is the first time these issues have been litigated in Northern Ireland it may be helpful to put the question of the particular protected political opinion that is sex-realism in some context.
Sex-realism (or gender-critical belief, as it is often called) consists in the acknowledgment that all human beings are either male or female, that it is impossible for a human being to change sex, and that sex sometimes matters. One of the obvious situations in which sex matters is when women need single-sex spaces; in those circumstances, C believes that what should determine who is admitted is not their gender identity, but their sex. The tribunal will be aware that the expressions “sex realism” and “gender-critical belief” are relatively novel, and are unlikely to have entered the tribunal members’ own using or recognising vocabularies before about 2017 at the very earliest.
Although as R’s Board member and former Chair Mark Cousins pointed out in his evidence, most people in Northern Ireland acknowledge the everyday propositions which are the substance of sex realism, a contrary belief has emerged in recent years. That is that human beings have a metaphysical quality called their “gender identity,” and that it is gender identity, not biological sex, which determines whether any given individual is and should be treated as a man or a woman. It is under pressure of opposition from that niche but aggressive and influential belief that the commonplace acceptance of biological reality and its everyday significance has been forged into a philosophical and political position known as “sex-realist” or “gender-critical” belief.
Belief in gender identity theory has taken such a hold in certain sectors of society, including numerous institutions, that discrimination against people who hold or manifest a sex realist beliefs has become commonplace, and has featured in many lawsuits in the UK since sex realist belief was first recognised as protected under the Equality Act 2010 in Forstater v CGD Europe Limited.
Among the subsequent cases that have relied on Forstater are the following:
Fahmy v Arts Council England, in which ACE was found to have harassed C because of her gender critical belief. The case was then settled for an undisclosed sum.
Phoenix v Open University, in which an academic was held to have suffered a targeted campaign of harassment and discrimination because of her gender-critical beliefs. Following the tribunal’s judgment, the vice-chancellor issued a public apology and initiated an independent review of the OU’s practices and polices related to academic freedom. The case was then settled for an undisclosed sum.
Meade v Westminster City Council and Social Work England, in which C was subjected to disciplinary proceedings by her employer and regulatory proceedings by her regulator for “liking” and forwarding various gender-critical Facebook posts. She was awarded over £58,000 including £40,000 for injury to feelings and £5,000 in exemplary damages against the regulator, which was found to have allowed its processes to be subverted to punish and suppress her lawful political speech.
Pitt v Cambridgeshire County Council, in which C was a social worker who was subjected to an investigation of her conduct after she had declined to declare her pronouns in a staff meeting, and then maintained in a subsequent discussion that there were only two sexes and that it should be possible to run lesbian-only groups and social events. On the first day of the hearing, the council conceded liability and agreed to pay the compensation sought in full, and to organise training on freedom of speech in the workplace, leaving only C’s claim for costs to be determined by the tribunal. The tribunal held that R had had no reasonable prospect of defending the claim, and awarded costs.
Adams v Edinburgh Rape Crisis Centre, in which a rape counsellor was subjected to a disciplinary investigation after she inquired of a “non-binary” colleague how she could inform a service-user that the counsellor she had an appointment to see was in fact female. After an excoriating judgment in C’s favour, the charity apologised and paid nearly £69,000 in compensation. The trans-identifying man who at the time of these events was occupying the role of CEO, ostensibly restricted to women under schedule 9 of the Equality Act CEO, resigned a few months later.
Bailey v Garden Court Chambers, C was a barrister whose gender-critical tweets gave rise to a social-media storm, in response to which her chambers announced that it was investigating. C was awarded over £20,000 in compensation for injury to feelings.
Frances v DCMS and DSIT, in which C raised complaints about the ideological capture of the Civil Service by gender ideology. As a result she was subjected to a sustained pattern of unfair treatment, including negative performance feedback and removal of responsibilities. DCMS and DSIT settled Frances’s employment-tribunal claim for £116,749. Both departments acknowledged failures in maintaining impartiality and committed to revising their transgender inclusion policies to comply with the Equality Act.
Higgs v Farmor’s School, in which C was dismissed from her job as an administrator at a Church of England secondary school after the school received a complaint about a gender-critical Facebook post she had made. An employment tribunal held that she had been dismissed not for manifesting her gender-critical belief, but for the manner in which she had manifested it. The Employment Appeal Tribunal remitted the case for rehearing, but on C’s appeal to the Court of Appeal, the Court held that she had suffered unlawful discrimination. It held at par 175:
“The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination within the meaning of the Equality Act.”
That is only a small sample of the many similar cases either concluded or still working their way through the courts and tribunals. Although discrimination on grounds of sex-realist or gender-critical belief has only emerged as a social problem in the last few years (the tribunal members are asked to imagine the explanation that would have had to follow in 2000, say, if a friend or acquaintance had said that she was suffering discrimination at work because of her “sex-realist” or “gender-critical” belief; the concept would have been novel, and incomprehensible), these cases show that it has since 2018 arrived on the scene as a social problem of some magnitude. That fact itself must form part of the background knowledge which the tribunal brings to bear on its task.
The issues
C relies on 13 different acts as either harassment related to her political opinion or direct discrimination because of her political opinion. In both cases, by Article 38A of FETO, if C has shown facts from which the tribunal could conclude, in the absence of an adequate explanation, that R has committed an act of unlawful discrimination or harassment, it must uphold the complaint unless R proves that it did not commit that act.
In the case of most of the acts relied on by C, it not disputed that R did them; the question for the tribunal is why R did them. The exceptions are the two issues relating to the grievance and the grievance appeal, in relation to which R denies that the processes were biased and unfair.
The key issues are:
Whether the Claimant was subjected to unlawful direct discrimination on the grounds of her
political opinion contrary to Article 19 FETO in relation to the below listed matters:
- Mark Cousins’ email of 25 June to Michele Devlin and various of the Respondent’s Board members urging action against the Claimant;
- Initiating an investigation into alleged misconduct relating to Claimant’s attendance/speaking at the Let Women Speak rally;
- Causing or permitting the disciplinary investigation to be conducted in a biased and hostile manner;
- Failing to ensure a fair, independent and impartial process for hearing the Claimant’s grievance;
and the corresponding elements: Mark Cousins’ email of 25 June 2023 urging action against C; Michele Devlin’s email of 3 July 2023 which had the effect of prompting further complaints against C; the decision to initiate an investigation into C’s conduct in attending and speaking at Let Women Speak; and the conduct of the grievance and grievance appeal.
R in its pleadings denies compendiously that it acted as it did towards C because of her protected political opinion, or that its actions were conduct related to her protected opinion having the requisite effect for harassment; but it does not in its grounds of resistance discernibly put forward a positive case as to why it acted as it did.
R’s case as it was put to C in cross-examination appeared to be that it had acted as it did because C breached the prohibition at clause 22 of her contract of employment by undertaking unpaid work at Let Women Speak of a kind which might directly conflict with the business interests of the employer or interfere with her normal work, specifically by publicly criticising women’s sector groups which were its partners; and perhaps also that it was bound to investigate the serious allegations of earlier misconduct raised by Aimee Martin’s service-user [this is the Caleb email, for those who have been following this in the newsletter].
The latter can be ruled out on the chronology. Aimee Martin’s email was sent on 7 July. R’s pleaded case, which it has not sought to amend despite its witnesses’ prevarication on the point, is that Think People, subsequently AAB, were instructed to commence an investigation on 5 July. That being so, the decision to investigate cannot have been influenced by the complaint forwarded by Aimee Martin two days later. Moreover, there is nothing in the investigation letter of 25 July 2023 to suggest that that complaint had even by that time been incorporated into the proposed investigation.
As for the suggestion that the reason for the investigation was a breach of the contractual prohibition on secondary employment, it is nowhere pleaded by R, and again, R has not made any application to amend to plead it. The nearest R comes to pleading it is at par 19 :
“Ms Paterson found that the decision to initiate an investigation was primarily based on Claimant’s ability to fulfil her role as an Inclusion/Audience Development Co-Ordinator, rather than her personal views, as she directly referenced various clients that R had previously collaborated with in her speech at the event.“
This passage is lightly adapted from Ms Paterson’s (or Ms Paterson’s and Ms Barros D’Sa’s findings) at p.16 of her report:
“The decision to initiate an investigation was primarily based on SOG’s ability to fulfil her role as an Inclusion/Audience Development Co-Ordinator, rather than her personal views, as she directly referenced various clients that BFF had previously collaborated with in her speech at the event.”
But in its new incarnation in R’s grounds of resistance, this remains in terms an assertion not about what R did, or why R did what it did, but about what Ms Paterson found about why R did what it did. Plainly that is (in part) what Ms Paterson found: the passage is after all there in black and white in Ms Paterson’s report. But the question for the tribunal is not what Ms Paterson found about why the decision was made to initiate an investigation, but why the decision was made to initiate an investigation. R does not appear to have pleaded an assertion about that at all. The difference between these two things is fundamental; otherwise respondents to discrimination claims could defeat them simply by engaging external consultants to pre-empt the tribunal’s role.
It remains for C to prove her case, but if she can show facts sufficient to engage the partially reversed burden of proof at article 38A of FETO, R has not pleaded any facts capable even if proved of discharging the burden on it.
These submissions take as their primary focus, then, four questions:
- Was Mark Cousins’ email of 25 June an act of direct discrimination or harassment against C?
- Was Ms Devlin’s email of 3 July with R’s “LGBTQI+ Friends” in copy an act of direct discrimination or harassment against C?
- Was the decision to investigate C’s conduct in attending and speaking at Let Women Speak an act of discrimination or harassment against her?
- Did R conduct a biased and unfair grievance process at both initial and appeal stages?
A) Mark Cousins’ 25 June email
At the time Mr Cousins sent this email, R had taken advice from the Equality Commission and decided to embark on a review of its contracts of employment and workplace policies [298]. There is no sign before this time, and no assertion on the respondent’s part, of any intention having formed to investigate the claimant’s conduct.
Mr Cousins’ email speaks for itself. He characterises C’s claim that she was standing up for the rights of women as “a new staple of the anti-LGBTQ anti-Islamic right’. He complains that she shows no regret for or doubt about what she had done. He accuses her of “misgendering” her own son, when she refers to him by correct-sex pronouns. He concludes by saying that R needs to “accelerate the process by which this is sorted”, and remarking “We can’t have an inclusion/diversity officer who, many weeks after making such an ill-advised speech, is still standing by her actions completely.”
Mr Cousins earlier email of 25 May is in similar vein. When he wrote that, he had not listened to C’s speech; it seems to have been enough for him to wish to express his support for “whatever investigation or process is happening” that she had shared a platform with Kellie-Jay Keen (aka Posie Parker); and that in doing so she had acted in a manner contrary to a spirit of solidarity with “those whose rights are still contested”. It is clear in context that “those whose rights are still contested” cannot mean women’s sector organisations; on the contrary, Mr Cousins appears to think that not merely are women’s rights not contested; but any attempt to assert them can be written off as cover for right-wing extremism.
In neither of these emails does Mr Cousins give any hint that what troubles him is anything specific that C has said, less still anything specific about who she had criticised, or what work they may have done in the past in partnership with R or what work they might (but for C’s speech) have been expected to do in the future. In both, it is clear that what concerns him is that she has attended the event and spoken publicly at it; and in the latter, that she characterises her actions as standing up for the rights of women, a notion which he seems to find alarmingly right-wing.
None of R’s witnesses who were taken to Mr Cousins’ 25 June email was willing to admit that he was calling there for C to be dismissed. Ms Devlin said that the email conveyed the message to her that MC thought the matter was urgent, and that what he wanted to speed up was “To look into it.” Ms McGivern said “My interpretation is that he would have liked an investigation to put the thing to bed,” and when pressed on what she meant by “put the thing to bed” explained “an open investigation as to what had happened, its implications, can this be remedied.” Ms Barros D’Sa said “He’s voicing concern due to what was reported at the Docs Ireland event of inappropriate behaviour with guests around.” When it was put to Mr Cousins himself that he was in this email making a case for the dismissal of C, he said “This was mentioned yesterday with Michelle Devlin, this is utterly jaw-dropping and a total load of rubbish.”
It is submitted that this willingness to deny what is obvious on the face of the email reflects poorly on the credibility of each of those witnesses. If the former chair of the organisation expresses serious concerns about the conduct of an employee, urges his successors and the CEO to “accelerate the process by which this is sorted” and concludes that “we can’t have” an employee having the characteristics of the employee in question, there is no room for sensible doubt that he is calling for her dismissal.
C’s attendance at the Let Women Speak was a manifestation of her political opinion; R (sensibly) does not seem to suggest otherwise. So Mr Cousins’ 25 June email was conduct related to C’s political opinion. It was self-evidently unwanted conduct. And it is difficult to see how it could be said that a Board member characterising an employee to her manager and other Board members as employing arguments associated with “the anti-LGBTW anti-Islamic right”, accusing her of “misgendering” her own son and urging colleagues to “accelerate the process” by which the matter is “sorted” was not conduct which would have the effect of creating a hostile workplace environment for the employee in question. (Greasley-Adams v Royal Mail Group [2023] ICR 1031 is Employment Appeal Tribunal authority, not binding here, that a person cannot be harassed by acts of which she is not aware at the time. C will address the tribunal orally on why that is wrong in principle, and should not be followed.
But if for any reason the tribunal is not persuaded that the 25 June email was an act of harassment against C, it was in any event to her detriment, and done because of her manifestation of her protected political opinion; so if it was not harassment, it was direct discrimination because of political opinion.
B) Ms Devlin’s 3 July email
C contends that the email to a long list of “LGBTQI+ Friends” which Ms Devlin sent on 3 July 2023 was a deliberate provocation intended to generate complaints which could then be used as a pretext to dismiss C. The evidence (as is usually the case when it comes to proof of discrimination; this is indeed the whole reason for article 38A) is circumstantial, but in sum it is submitted that it is overwhelming. It includes the following:
Ms Devlin had in April had the good sense to take prompt steps to suppress adverse comment on C’s attendance at Let Women Speak.
In that context, if sending the 3 July email was simply an error of judgment, it was a startlingly stupid and unforced error, particularly bearing in mind that the email was sent despite C’s expressed discomfort with it.
Mr Cousins had on 25 June urged the CEO and co-Chairs to “accelerate the process” by which the matter was “sorted”.
The CEO and co-Chairs had then arranged to speak, and seemingly had spoken, on 28 June.
None of those who were party to that conversation or those conversations was able or willing to provide the tribunal with a credible account of it; two of those concerned skipped over it entirely in their witness statements.
Although Ms Devlin told the tribunal that the Pride On the Big Screen (POBS) event which was the subject-matter of the 3 July email had been under discussion since February 2023, and then claimed under cross-examination that she would be able to find plenty of documentary evidence in support of that claim, she was able to produce no documentary trace of it whatsoever before that conversation.
The first documentary trace of POBS was an email sent at 11 minutes past midnight on 29 June, in other words late at night on the same day as the conversation with the two co-Chairs of which all participants’ recollection is so hazy.
On any view, the POBS event was arranged at extraordinarily short notice, hence the need to send an email to the Council after midnight on 29 June asking for a quick turnaround.
If the POBS event had been under discussion since February, it is difficult to understand why it had not been put forward for inclusion in the Pride brochure by the deadline of 9 June.
Ms Devlin’s “mistake” in open-copying all recipients instead of blind-copying them had the predictable effect of facilitating those who complained in response to it in responding to and/or being inspired by each other’s complaints.
The decision to attempt to “crowdsource” suggestions for the event makes little sense in the context of the very tight timescale over which it was being planned, but much more sense if that crowdsourcing was in reality only a pretext for emailing the organisations and individuals most likely to be infuriated at that time by being invited to an event in which C was taking a prominent role.
C) The decision to investigate
The evasiveness of the respondents’ witnesses on the question of the date of the decision to investigate is troubling. Ms Devlin gives the impression at par 26 of her statement that the decision to investigate was taken after the decision on 11 July to postpone POBS. Ms Barros D’Sa gives a similar impression at par 13, in claiming that the “clear destination” she was referring to in her 10 July message on the Board chat was a fact-finding investigation. That was an obvious and blatant untruth on its own terms, as well as serving the respondent’s attempt to push forward in time the date at which the decision to investigate was taken. Ms McGivern says at par 7 of her statement “Following the numerous complaints received, AAB People were appointed to conduct a fact-finding investigation into whether the Claimant’s involvement in the Let Women Speak was contrary to certain aspects of her role as Audience Development and Inclusion officer”, and then refers to the 25 July invitation.
Ms McGivern’s “Following the numerous complaints” betrays the purpose behind R’s efforts to blur and push forward the date on which the decision to investigate was taken. At the date when the decision was taken (4 or 5 July at latest, but in reality it is submitted considerably earlier than that), there were not “numerous” complaints; there were at most two or three. The later the date for the decision, the more complaints can be relied on as justifying it; particularly, perhaps, the complaint from Aimee Martin’s service user.
The complaints were in truth a pretext for the investigation, which was the predetermined outcome of a sequence of events in which a provocative email was sent to LGBTQI+ organisations and others seen as LGBTQI+ allies, complaints were then received, and an investigation purporting to be responsive to those complaints was launched. None of the witnesses offers a clear date for the decision, or an occasion on which it was taken, or was even able to say by whom it was taken. The impression given is of an organisation that has an almost supernatural ability to take important decisions by unspoken tacit assent.
But the evasions of the respondent’s witnesses are futile, because the Respondent’s grounds of resistance unequivocally asserts that the date of the decision to investigate was 5 July.
Traditionally when one party to litigation alleges conduct in the nature of a conspiracy, the other party jeers at the allegation as overheated and inherently implausible, and the first party seeks to play down the heinousness of the conduct alleged. Unfortunately the Respondent’s conduct in this case appears to have been properly heinous. The indications are that there was an agreement between Ms Devlin and at least one Board member to construct a pretext to dismiss the claimant by way of a last-minute crowdsourced Pride fringe event to provoke further complaints against her.
The tribunal will form its own view about which of Ms Devlin, Ms McGivern and Ms Barros D’Sa was involved in that agreement. For C’s purposes, it is sufficient if the tribunal concludes that this was Ms Devlin’s purpose, whether or not the two co-Chairs were fully apprised of her plan. It is submitted that Ms Devlin’s email of 10.59 on 4 July and Ms Barros D’Sa’s message of 10 July are particularly telling in this connection. On 4 July, Ms Devlin appears to be reporting back promptly to the two co-Chairs with whom she had the conversation on the progress of the plan, and in particular on the complaints that it has so far yielded. Ms Barros D’Sa’s 10 July message is worth quoting again in full at this point:
“Hi all, MT and Michele are on holiday this week so l wanted to give you a quick update. Michele has gathered further formal complaints relating to Sara. And refusal to do certain aspects of her job involving these issues and groups in itself constitutes gross misconduct. So pending further legal discussion things are moving toward a clear destination – again it’s just about doing everything in the correct way. “
Ms Barros D’Sa’s use of the word “gathered” betrays the nature of the exercise, as does her eagerness to characterise C’s reticence about sending the 3 July email as gross misconduct.
D) The grievance and grievance appeal process
It is submitted that the deficiencies of the grievance and grievance appeal processes are self-evident. At both stages, there is a lack of clarity about who is in charge of the process, and indications that it is the Board members who are really in charge, combined with a desire on the respondent’s part to minimise their role. Neither process was a genuine attempt to get to the bottom of C’s grievance, and the external HR advisers were wholly dependent on the information that was being fed to them by the two co-Chairs. At each stage, the process was fatally compromised by the involvement of one of the people whose decision-making was (or should have been) under scrutiny.
Conclusion
These four elements of C’s claim set the scene for the other acts of which she complains. Everything that flowed from her speech at Let Women Speak was unwanted conduct on R’s part related to her protected political opinion which had the purpose or effect of creating a humiliating, intimidating etc environment for her; or a detriment to which she was subjected because of her protected political opinion; and the cumulative effect was a predictable destruction in her trust and confidence in her employer leading inevitably to her resignation.
Finally in relation to R’s reasons for treating C as it did, the tribunal is asked to note in particular what R chose not to transpose into its grounds of resistance from Ms Paterson’s report. What is transposed into par 19 of the grounds of resistance is the first 7 lines of the paragraph beginning “Whilst it is accepted that SOG attended this event…” and then the final 3 lines of the following paragraph. What is not transposed is the following, between those two excerpts:
Employers have a responsibility to evaluate whether an employee’s protected views hinder their ability to effectively perform their job duties. In situations where an employee’s protected beliefs conflict with their job responsibilities, or employees are in a breach of their contractual obligations, employers are permitted to mandate that employees carry out tasks that may go against their protected beliefs.
Furthermore, it is pertinent to reference appendix U – V again, which contains only some of the client email complaints and public grievances regarding C’s participation in the ‘Let Women Speak’ event, which contradicted BFF’s values and C’s job role.
It is submitted that that passage puts it beyond doubt that at least part of R’s reason for treating C as it did (and part is of course enough) was her views, as distinct from any behaviour or perceived damage to R’s reputation or working relations.
ENDS
At the end of yesterday’s hearing the judge told the court the panel’s decision would not be handed down until after Christmas.
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