Kelly v Leonardo Employment Tribunal Thread 4

mixed sex each toilet, washbasin, hand dryer and sanitary bin in an enclosed, floor to ceiling cubicle

This was introduced, as far as I know, with Document T. Prior, there was no requirement for a single user enclosed floor to ceiling door room with sanitary convenience to have hand washing facilities. The hand washing facilities simply need to be "in the immediate vicinity". And facilities for washing of hands can explicity be mixed-sex.

Happy to be shown a regulation that says otherwise. Document T of course clears all this up.

@ArabellaSaurus pls fact check with me, if possible?

In an earlier a post I noted that Judge Michelle Sutherland, as I observed her during the BM Kelly vs Leonardo UK tribunal, appears to be the same Michelle Sutherland pictured here, as Trustee of Fidra environmental charity based in North Berwick, East Lothian.. I won't repost all links, but to recap: Fidra ia a small charity with endowment status, and approx 11 employees and 4 trustees. Trustees are noted to be responsible for management oversight, and Michelle Sutherland works closely with the Operations Manager, who in the last year arranged training for Fidra staff on being an ally/safe spaces, provided by the LGBT Foundation.

From further secret squirrelling I think that Michelle Sutherland, with her "strong personal interest in passive housing", seems likely also to be the same Michelle Sutherland featured here, who with a Neil Thompson (sic) self-built a passive house for themselves in North Berwick and showed it off to a Scotland on Sunday publication.

(Their young children are featured in the article, please do not post the names or anything about them here to protect their privacy; any links to the parents charitable endeavours don't need to be spelled out in a way that harms their privacy).

I think 'Thompson', above, may be a misspelling of Thomson, because the photo on the passive house article matches photos of a www.linkedin.com/in/neil-thomson-045a4463 Neil Thomson Director of NB Analytics Ltd. Neil's company is based in North Berwick where a
Michelle Diane Sutherland was also a company Director until 2020.

There seem to be quite a few Michelle Sutherlands in the area but I have only found one Michelle Diane Sutherland in North Berwick.

We can see here, that Employment Judge Michelle Sutherland was intitially listed as Judge Michelle Diane Sutherland when first appointed on a fee-paid basis in 2018

I have also found another Scottish charitable organisation called Team East Lothian, an athletics club, with a Michelle Sutherland as Trustee and current Chairperson. The Secretary of the same organisation is a Neil Thomson. Sadly there are no photos or addresses of Trustees available at this time, but details should be available on the SCIO register from January 2026

If Judge Michelle Sutherland is also a Trustee and the current Chairperson of Team East Lothian Athletics Club, then she will have almost certainly declared this as a potential conflict of interest already, I imagine, given that:

1 Team East Lothian has previously signed its child members and all up to the East Lothian Sports Charter, to embrace equality and inclusion;

2 the club has adopted the ScottishAthletics Equality Policy which, inter alia, has added gender as a protected characteristic in its own hot take on the Equality Act 2010.

Discrimination has been legally defined through the Equality Act 2010. Discrimination refers to unfavourable treatment on the basis of particular characteristics, which are known as the ‘protected characteristics’. Under the Equality Act 2010, the protected characteristics are defined as age (employment only until 2012), disability, gender reassignment, marital or civil partnership status (employment only), pregnancy and maternity, race (which includes ethnic or national origin, colour or nationality), religion or belief, sex (gender) and sexual orientation.

3 Scottish Athletics provides rainbow-based Guidance on Equality for clubs and has a Transgender/DSD policy which, if also adopted by Team East Lothian, would mean that there would be few restrictions on sex-based inclusion/exclusion in school athletic competitions, and that 'conversation-based' decisions would be made more broadly on eligibility for inclusion on the basis of gender identity rather than sex.

I should repeat that I cannot definitively link Judge Michelle Sutherland to the Michelle Sutherland who is Trustee and Chair of Team East Lothian. If she is the same person then she has probably already declared her roles as possible conflicts of interest lest otherwise a fair-minded and informed observer should conclude that there could be a real possibility of bias that could have affected the otherwise beautifully drafted and thoroughly spell-checked decision in the case of Kelly V Leonardo.

That's because there are no such regulations. It's either single sex with wash basins in the open area, or mixed sex each toilet, washbasin, hand dryer and sanitary bin in an enclosed, floor to ceiling cubicle. I think this arrangement is dangerous for lots of reasons, but it's the legal alternative to single sex facilities afaik.

This may be a misreading of the regulations. Single sex facilities have single sex washing facilities in the single sex communal area.

Single occupancy toilets used by either sex, must have floor to ceiling doors and be enclosed with a wash basin inside. I don't understand where the regulations say single occupancy toilets have mixed sex washing facilities outside them.

I don't think the law distinguishes between handwashing facilities for use after using a toilet and hand washing facilities provided for any other purpose. Up until Document T, at any rate.

Toilets have to be near handwashing facilities. That's it.

This may be a misreading of the regulations. Single sex facilities have single sex washing facilities in the single sex communal area.

Single occupancy toilets used by either sex, must have floor to ceiling doors and be enclosed with a wash basin inside. I don't understand where the regulations say single occupancy toilets have mixed sex washing facilities outside them.

Yes similar to Doc T saying this is from 2024 onwards. The economics of changing toilet designs is a huge headache. At the moment 25% of secondary schools have mixed sex toilets. Pupils safety doesn’t fall under 1992 legislation or Doc T apparently - it’s only for the teachers.

I don't disagree with you on points of fact, but I don't think anyone put those facts before the tribunal in this case.

The wider point is that where a regulation more or less explicitly permits a particular toilet and washing facility arrangement, it's a tough row to hoe to use a different regulation or law to hold that particular toilet and washing facility arrangement to be unlawful.

She has noted (para. 200) that the Regulations are enacted under the Health and Safety at Work Act (1974) and "The general purpose of the 1974 Act is 5 to secure the health, safety and welfare of persons at work. Section 2 provides that “it is the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees” (the “general duty”)."

She then notes that the only mention of "propriety" is (as you say) in reference to changing facilities.

She goes on to say that "The secondary purpose of the welfare facilities duty is therefore to provide facilities which are separate “where necessary for reasons of “propriety” (what is morally proper)."

Having set out her stall that propriety is a secondary purpose, she then asserts that the separation of men and women in 20(2) is for propriety only. As you point out, 20(2) doesn't say why men and women's facilities have to be separate; it could be for safety, dignity or any other reasons, but she infers it to be only for propriety. I think that's a challengeable flaw in her reasoning.

She then draws attention to a (in her mind) difference between privacy and propriety. She says that privacy is an Article 8 human right, and that single-user cubicles ensure privacy and therefore are required under 20(1). But propriety is not a human right. ("Moral propriety and bodily privacy are not the same. The first depends upon what is socially acceptable. The second is an inalienable human right.")

Therefore, since 20(2) is concerned with propriety, not privacy, Article 8 rights are not engaged when trying to interpret 20(2).

Would this judges other interests fit the circumstances for recusal for bias

So is her argument that the workplace regulations definition of male and female toilets actually means mixed sex? If so when is she saying it is fine for one or two men to enter when actually if those words have no meaning then all men can? Or is she saying the GRC applies in this case? In which case only men with a GRC can enter which she didn’t say? And why would those regulations even stipulate male and female if they were accepting of mixed sex?

Are not the considerations different for hand washing facilities for the protection of a factory process from dirty hands or workers from a factory process and for hand washing facilities in a toilet?

Part of the claim is founded on - or at least it has been raised that - single sex cubicles in a women's toilet not providing adequate privacy from trans-identifying men present because on occasion women have to use the adjacent hand-washing facilities in that same single-sex toilet to deal with menstrual blood.

In this case the workplace regulations are silent on the location of handwashing facilities. However explicitly mixed-sex hand washing facilities are permitted under the building regulations in force at the time. If they are good enough under the building regulations then they should also be good enough to vitiate a claim for discrimination.

She had added in 'propriety' hasn't she? It doesn't appear in Reg 20; it only appears in Reg 24 in relation to changing clothes? She's making an appeal to the transient nature of the social construct of propriety that isn't in the Reg she relies on for her argument.
https://www.legislation.gov.uk/uksi/1992/3004/regulation/20
https://www.legislation.gov.uk/uksi/1992/3004/regulation/24

Interestingly the 1992 Workplace Regulations specifically mention with regard to provision of sanitary conveniences that if it's an existing workplace & provision is already as per the Factories Act 1961 then it's deemed sufficient compliance.

I’ve collapsed in a loo, fortunately in my own house and fell with enough of a bang to wake DH up. On the odd occasion when I’ve felt unwell I’ve always headed to the bathroom or loo, not just because I’ve wanted to vomit, but also to lay on the floor as it’s generally the coldest place in the house.

My brother’s wife went through a spell of collapsing after using the loo, and so did a colleague of my DH. All three of us otherwise generally fit and well, and put down as vasovagal episodes.

I don't disagree with you on points of fact, but I don't think anyone put those facts before the tribunal in this case.

The wider point is that where a regulation more or less explicitly permits a particular toilet and washing facility arrangement, it's a tough row to hoe to use a different regulation or law to hold that particular toilet and washing facility arrangement to be unlawful.

If you have two sets of regulations apparently saying different things, the regulations that are more specific to the situation apply. So, for example, the Building Regulations Schedule 1 Part T applies generally to buildings other than dwellings, care homes, schools, nurseries and prison cells. However, the Workplace Regulations apply specifically to places of work and an employer's duty to their employees. So, when looking at toilet provision by an employer, an arrangement that does not comply with the Workplace Regulations is unlawful even if it complies with Building Regulations.

I am guessing that the concern would be the attention this decsion would get if SP wins against NHF Fife. Compared to NHF Fife this has not had the same level of media attention, getting this decision out early ensures it wont catch fire in the media. Lets face it, one the Fife decision is out it will be big news no matter what the decision.