Kelly v Leonardo Employment Tribunal Thread 4

Maya Forstater’s appeal had a full public tribunal with witnesses and Ben Cooper KC cross examining them. What would be the difference?

I agree.

I have known an ET be overturned on the ground of perversity.

You can also appeal if the judgment is outlandish (not the legal term)

Michelle Sutherland who is Trustee and Chair of Team East Lothian

That looks about 100% likely, Nebulous. I tried to PM you to say why, but the PM machine seems to be buggered.

However, I'm not completely sure that it would be a conflict of interest?

@NebulousSupportPostcard - excellent sleuthing as ever. I think these are two really credible links to gender ideology and I think it willl be pretty easy just to call the Team East Lothian to check. Or check with OSCR.

We can narrow her age as she was born in 1970. So very few Michelle Sutherland in Berwick/ East Lothian born in the same year.

She resigned her business interests but was clearly approved to do charity roles.

EnthickenedNebulousSupportPostcard for me!

New user name

BrittleBubblesOfBullshit alert 🚨

@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.

Maybe it's time to take the fight to the HSE. If WR1992 are based on the social construct of moral propriety, then how is it meeting the needs of the up to 80% of British people whose sense of moral propriety is offended by having to share toilet facilities with certain members of the opposite sex who demand it?

And, claimants need to put in much more evidence. The SC were able to infer logically that the PMoAaLA underpinning Schedule 3 must be sex-based (because the solution had to work for people who are identical except for possession of a certificate) but never had to say what it actually is. Time to address that question.

Personally, I think that 'because we all want it' ought to be enough. But sex-based evidence is going to be more powerful.

Why separate provision is better for both sexes (safety data, crime stats, toilet design)

Survey evidence - how many avoid toilets based on signage? How many are made distressed and anxious by the signage or by the risk or actuality of encountering the opposite sex in there?

Also, especially for this Judge, some scientific papers on human ability to discern sex! And the % of TW that don't have genital surgery or a GRC. And survey evidence on how many people think TWANW. Because she acknowledges they exist but doesn't think their needs have to be met (they must be on the WSOH or something).

Does anyone know why this case had only a judge, rather than a panel? I'm sure there was a reason in one of the earlier threads, but hoping someone might know off the top of their head.

The sleuthing that some have done may give some explanation as to why there was much more focus on the Belfast panel a few weeks ago. If so, it'll probably need to be par for the course and I'd expect some savvy people start to lock down and cleanse accounts.

There are probably more TiMs who will now feel free to use the ladies toilets, than there ever would be joining the GGs and the WI.

Victory of sorts for them in their eyes, balancing out the GG and WI issue, and onwards to full capitulation.

What is the point of the SC ruling now, and will the Government be swayed into refusing to authorise the guidelines. They were delayed for a reason I think.

The judge did not make conditional probability calculations.

The poor man in Edinburgh council office toilets was there 6 days this summer. There was a lady earlier in the year in a restaurant toilet in England for 3 days. That’s why public toilets are not supposed to be ‘lockable’ in English and Scottish building standards (even though judges imply differently). That only works properly as a safety measure if you notice the occupant having a medical emergency in time, of course.

In the Scottish Government’s Building Standards Division Non-domestic Technical Handbook,
Mandatory Standard 3.12 states
Every building must be designed and constructed in such a way that sanitary facilities are provided for all occupants of, and visitors to, the building in a form hat allows convenience of use and that there is no threat to the health and safety of occupants or visitors.

@Keeptoiletssafe I thought of you yesterday - was in an NT place and the ladies had a row of sinks on the left and a row of loos with floor to ceiling doors on the right. Given the weekday term time visitors are largely older women, I did think, if one of us keeled over in the loo, how long would it take before discovery? I suppose most people do go to NT sites in groups though.

Are any gardens being dug for the appeal? When I heard the news this morning my reaction was, really?!

So gutted for Maria after all she went through. Angry at the poor reasoning in the judgement (took me a while to get through).

I work in IT and sometimes in offices so this is for personal concern for me and i am so grateful to Maria and the legal team.

No. An appeal is on points of law only, You only hear from the two counsels and they put their arguments why the judgement is right/wrong based on law and case law.

Is it OK to post another possible Charity Chair role that I have good reason to believe is Judge Michelle Sutherland, but in circumstances I cannot be sure.

If (when hopefully) there is an appeal, will Maria have to go on the stand again? And can any new witnesses be called at that point, e.g. a witness expert to look at the stats

TBH the judgement reminded me of some of the posts on /transgenderuk - it demonstrates the same desperate twisting of facts and figures to shore up the desired conclusion, rather than considering the facts and figures and using them to reach a non pre-determined conclusion.

Prof. Alice Sullivan on X:

"The level of motivated innumeracy here is discombobulating.

The judge seems to be arguing that males who identity as women should be admitted to women's toilets because there aren't very many of them, and therefore they will only be responsible for a small proportion of assaults.

You could say the same of red-headed men"

Just recently I was amazed to discover that the dunce cap actually originated a serious instrument used by John Duns Scotus and his followers to funnel knowledge into the brain. I wonder if that bit of trivia was originally seeded in my mind on Mumsnet? 🤨🧐😬

It is called the prosecutor’s fallacy

I have asked for the stats of assaults in public toilets in the past from various government bodies and NGOs and the police. No one collates them in terms of location and design. Not knowing location specifics is also a problem the Sarah Everard enquiry pointed out and there was a particular emphasis on designing out crime.

If the judge was so inclined, she could Google her local area or any town/city. Type in ‘toilet assault’ ‘toilet death’ ‘toilet rape’ etc. or just ‘toilet’ into her local newspaper site. She will soon get an idea on the sex differences and also how important it is to get design right for health and safety.

There are FOIs that can indicate that there are problems but not specifically show the detail needed. The most information I can get is from schools. For example, the police data (if they have it and will share it) will show how many reported rapes there were inside a school but not the location. I know, from research, that disclosed places are private store cupboards and private designs of toilets. It’s obvious that in a school it shouldn’t be able to happen. On ‘Everyone’s Invited’ there are many accounts where girls haven’t told anyone. After the government asked Ofsted to look into abuse in schools off the back of ‘Everyone’s Invited’, Ofsted told schools that they should never assume sexual abuse wasn’t happening because they weren’t aware of it. In fact it was so common that they should assume it is and do all they can to prevent it. They also complained there was no central database to show what was happening. Why should that be any different in the workplace? Do children suddenly become upright moral citizens when they enter the workforce? Some of these perpetrators will be teachers of course.
It is reasonable to assume most serious assaults will be in a private, unsupervised area open to mixed sex: Essex Police West Mercia Metropolitan Police Warwickshire Police West Yorkshire.

The BBC investigated in 2015/6 and concluded there was 1 rape per day reported inside a British School. They also came to the conclusion that is was under reported and a recommendation was to ensure data was collated centrally. Also in the last 10 years more toilets are mixed sex and private in schools - the estimate is 25%. No risk assessment or equality assessment is held by the DfE for the impact on girls and medically vulnerable on private (floor to ceiling) designs. That was my FOI to the DfE.

We need to stop increasing provision where the cubicles are completely private designs and to do this make sure the area in front of the toilet is single sex so the occupants are safer. This applies to anyone and everyone.

I think the judge outsourced the judgement to the GLP.

Maria has asked for it to be expedited. Hopefully it will be just a few months.