Page 20 | Kelly v Leonardo Employment Tribunal Thread 4

ickky · 2025-10-24T08:14:25+00:00

The Tribunal has now finished and we await the judgement. Abbreviations: C or MK - Claimant, Maria Kelly NC - Naomi Cunningham, barrister for C KW - Katy Wedderburn, solicitor for C R or L - Respondent. Leonardo UK ST - Susanne Tanner KC, barrister for R J - Judge P - Panel member GC - gender critical GI - gender identity AL - Andrew R Letton VP People Shared Services Leonardo - respondent witness Tribunal Tweets coverage here [[https://tribunaltweets.substack.com/p/kelly-vs-leonardo-uk-ltd https://tribunaltweets.substack.com/p/kelly-vs-leonardo-uk-ltd]] Thread 1 [[https://www.mumsnet.com/talk/womens_rights/5416903-kelly-v-leonardo-employment-tribunal-29th-september-10am?page=1 https://www.mumsnet.com/talk/womens_rights/5416903-kelly-v-leonardo-employment-tribunal-29th-september-10am?page=1]] Thread 2 [[https://www.mumsnet.com/talk/womens_rights/5420656-kelly-v-leonardo-employment-tribunal-thread-2 https://www.mumsnet.com/talk/womens_rights/5420656-kelly-v-leonardo-employment-tribunal-thread-2]] Thread 3 [[https://www.mumsnet.com/talk/womens_rights/5421183-kelly-v-leonardo-employment-tribunal-thread-3 https://www.mumsnet.com/talk/womens_rights/5421183-kelly-v-leonardo-employment-tribunal-thread-3]]

Londonmummy66 · 04/12/2025 12:42

@MyrtleLion - I agree very disappointing - however assuming it is true (and it certainly seems to be from what I heard) then presumably this is the best case a trained legal mind could cobble together for the trans side which might well be encouraging for an EAT challenge.

ArabellaSaurus · 04/12/2025 12:37

weegielass · 04/12/2025 12:12

I agree it was very rushed, I wasn't expecting the judgement so soon.

How long does the EAT process take?

'The overall Employment Appeal Tribunal (EAT) process time in Scotland varies significantly depending on the case's complexity and the tribunal's workload, but cases can take anywhere from several months to over a year to reach a final hearing.' (google ai)

ArabellaSaurus · 04/12/2025 12:36

KitWyn · 04/12/2025 12:08

I'm baffled as to why the Judgement was rushed out and published in this shoddy state.

The Judge must have known when drafting it, that this will be the defining case of her career. It would be very widely read, analysed, quoted from, and almost certainly appealed.

And it is still appalling poorly written.

Do Judges not have access to proof-readers, or any form of quality control? If I were a lecturer in law I'd want to use this as an example of bad legal drafting. To set it for the class's homework, and task all students to identify three obvious errors. And provide alternative drafting to improve the quality of its arguments, better demonstrate judicial impartiality and enhance its readability.

Who benefits from publishing it now, rather than delaying until the New Year, and attempting to edit it into something a little less career and reputation destroying?

It must be hugely embarrassing for a Judge to have a case overturned at appeal. Basically it means a group of your senior colleagues have marked your work and given it an F. You didn't understand the law, didn't apply it correctly and failed to deliver justice. Yet here we are.

Edited

Like others, I had imagined that perhaps the judge made a stupid, ill informed, illogical and sloppy judgement in order to ensure an appeal was inevitable.

But then, we should look at all the other trials and tribunals.

TRAs do not exercise critical thinking. It's possible that if one is struggling so hard to maintain obvious bullshit like 'men are women if they say they are', it weakens one's thinking faculties. Or the cognitive dissonance sucks the mental energy from one so one can only come out with blurts of utter lunacy like an Isla Bumba style 'I don't know if I'm a woman' slogan, mixed in with the occasional thought terminating cliche, and plenty of aggressive, defensive ad homs.

This ideology enthickens people. It destroys the ability to question, test thoughts. It's brittle, and it cannot stand to ever allow for the mistakes and revisions that are an ordinary part of honest thought. Because if most of your arguments are bullshit assertions, you cannot discern between the occasional sensible, true statement mixed into them, and utter nonsense. You can't interrogate an idea on its own merits, you have to check it against the accepted right-think metrics, instead.

So you lose the ability to assess ideas or statements on the basis of plausibility or logic - you are making decisions based on emotive feels, and repeated slogans, the ideology depends on biddable people nodding along to pat statements.

As has also been noted, it depends on cheerleaders and echo chambers, so all the folk on Bluesky patting each others' heads about being 'on the right side of history' never get their ideas challenged or tested. An activist will also start with a pre-conceived conclusion, and work backwards from there.

We end up with brittle bubbles of bullshit that really stink as they are popped. And professionals making outrageously ridiculous conclusions.

MyAmpleSheep · 04/12/2025 12:32

NoBinturongsHereMate · 04/12/2025 09:37

Exactly. The simple arithmetic is correct, but the applied maths and logic is a disaster.

To work through your 'Rapist Bob' example, let's imagine a company of 99 women plus rapist Bob, and with Leonardo's bizarre 2-person-single-occupancy loos.

If men commit 98% of sexual assults, then at first look you'd expect 2 offences (rounding up) by women for each one by 1 by Rapist Bob.

But what's the pattern of offending? Women who commit sexual offences don't generally attack other adult women - so the chances of a workplace assault by a woman are much, much lower than that headline 2%.

If you're in the 2-person loo with 1 other person, and that person is a woman, the probability is that it's one of the 'safe' women. And if it's not, you have a much higher chance of fighting her off than you have of fighting off a man. So the fear is considerably lower, as well as the actual.risk.

And if we go back to Leonardo rather than Rapist Bob's company, the big error of logic is that the comparison of numbers is wrong. If you let any men into the women's loos you let all men into the women's loos - 80% of employees, not 0.5%.

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Isn’t this the same statistical flaw that crops up again and again in courts? Confusing the probability of A given B with the probability of B given A?

The probability that the suspect is guilty given the DNA results is not the same that the probability of the DNA results if the suspect is guilty.

Also - the probability of the test being positive, if you have the disease, vs. the probability you have the disease if the test result is positive.

So, here, confusing the probability that a man attacks you (small) vs. the probability that, having been attacked, your attacker is male (large).

MyrtleLion · 04/12/2025 12:29

Londonmummy66 · 04/12/2025 12:28

Discussed this with a (non Scottish) KC and this is what they think. (And EJ Sutherland may well have a bit of an inside track on timing of EJ Kemp's ruling.) Gossip is that she is a believer.

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Disappointing.

MarieDeGournay · 04/12/2025 12:29

Shortshriftandlethal · 04/12/2025 10:03

Any appeal needs to focus on legal consistency rather than the ins and outs of flooding and sexual trauma, I'd say. Keep it logical and consistent rather than emotive. The judge obviously got too involved with the heat of the issue.

Edited

I agree! It angers me that women like MK are having to reveal intimate physical details about how awful it is not to have single sex toilets, instead of companies having to justify why they have not provided single sex toilets, as required by various regulations.

I go back to my disappointment that judges don't uphold principles, instead of finding ways to justify circumventing principles, as this judge seems to have done.

It shouldn't matter whether women are experiencing flooding or not - obviously it matters hugely to them - but that's not why there should be men's toilets, women's toilets and accessible toilets, they should be provided regardless of why individuals may need them.

Londonmummy66 · 04/12/2025 12:28

Legobricksinatub · 04/12/2025 12:11

Perhaps she wanted to rush it out before the Peggie case? Perhaps try and influence other cases?

Discussed this with a (non Scottish) KC and this is what they think. (And EJ Sutherland may well have a bit of an inside track on timing of EJ Kemp's ruling.) Gossip is that she is a believer.

weegielass · 04/12/2025 12:12

I agree it was very rushed, I wasn't expecting the judgement so soon.

How long does the EAT process take?

Legobricksinatub · 04/12/2025 12:11

Perhaps she wanted to rush it out before the Peggie case? Perhaps try and influence other cases?

KitWyn · 04/12/2025 12:08

I'm baffled as to why the Judgement was rushed out and published in this shoddy state.

The Judge must have known when drafting it, that this will be the defining case of her career. It would be very widely read, analysed, quoted from, and almost certainly appealed.

And it is still appalling poorly written.

Do Judges not have access to proof-readers, or any form of quality control? If I were a lecturer in law I'd want to use this as an example of bad legal drafting. To set it for the class's homework, and task all students to identify three obvious errors. And provide alternative drafting to improve the quality of its arguments, better demonstrate judicial impartiality and enhance its readability.

Who benefits from publishing it now, rather than delaying until the New Year, and attempting to edit it into something a little less career and reputation destroying?

It must be hugely embarrassing for a Judge to have a case overturned at appeal. Basically it means a group of your senior colleagues have marked your work and given it an F. You didn't understand the law, didn't apply it correctly and failed to deliver justice. Yet here we are.

Boiledbeetle · 04/12/2025 11:55

I've just finished reading the judgement.

Wowzers!

I'm gobsmacked at how appalling it is.

Peregrina · 04/12/2025 11:33

I would love to know where she got the statistics on toilets because no one else has them. In my UK database 100% of sexual assaults in toilets are by men.

This could now be because sexual crimes committed by men identifying as trans women are recorded as women's crimes.

As for the judges statement that we can't easily identify which sex someone is, apart from babies bundled up in nappies, that is laughable.

Keeptoiletssafe · 04/12/2025 11:13

thirdfiddle · 04/12/2025 08:21

The arithmetic works, but this is the same logical messup that TRAs keep making.

They're talking about the proportion of assaults that are expected to be carried out by a group, when they should be talking about the risk of a member of that group assaulting compared to the risk of someone in the general population assaulting.

Taking it to an extreme - suppose Rapist Bob is on the staff. The probability Rapist Bob assaults someone if he's allowed in the women's loos is 100%. If there are enough members of staff it may be that Rapist Bob's one known assault is still a small minority of assaults. Rapist Bob says you should let me in the women's loos because I personally will commit a small proportion of assaults, there's only one of me and there are thousands of not-me. Would you let him in? Obviously not.

Can one appeal a case on judge not understanding statistics properly?

(As per usual. it is not a just a question of risk there is also the certainty of impact on women's privacy and comfort.)

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The judge is assuming too many things.
I would love to know where she got the statistics on toilets because no one else has them. In my UK database 100% of sexual assaults in toilets are by men.

The point was made in 2003 when the Sexual Offences Act clause was put in about sex in toilets being illegal that no two women had ever been prosecuted for having sex in toilets (Thank you Chris Bryant for that research). As far as I know that still stands. Toilets are a specifically vulnerable place, hence the clause.

Women just don’t think about toilets and elimination in the way men do. There’s the territorial marking/ getting away with it in a public place/ sexual voyeurism/ opportunistic stuff men do that has no bearing on whether a man has been ‘vetted’ or not.

Again, it’s not all men. But it is always men.

contemporaneousnote · 04/12/2025 11:08

Sorry - just to be clear that wasn't Foran's analysis but he did comment that he agreed with it and shared it too.
He said he was hoping to get a personal comment over the coming weeks.

MyrtleLion · 04/12/2025 11:00

Seriestwo · 04/12/2025 08:52

Judge must have a trans niece. It’s the only explanation.

Some of us have trans nieces but still believe in women's rights to single sex spaces.

GallantKumquat · 04/12/2025 10:55

ItsAllGoingToBeFine · 04/12/2025 09:46

It's such a confusing judgement - the judge comes across as either incredibly obtuse, or a TRA, neither of which I would expect a judge to be.

I think Carol Potter is an illustrative case. The weight of her professional responsibility was no less than that a of tribunal judge - responsible of regulatory compliance; the lives of thousands of patients a year; of maintaining high standards of care; maintenance and modernization of practices, equipment, and administrative systems; top line budget allocations - a nexus of stakeholders to be accountable to from boards, to government oversight committees to regulatory agencies. And yet, she apparently felt her paramount duty above-and-beyond all that was trans rights advocacy. If that were the orientation of someone at such a high level in the NHS, why wouldn't we expect that same level of personal commitment, professional standards be damned, of judges?

theilltemperedmaggotintheheartofthelaw · 04/12/2025 10:41

ItsCoolForCats · 04/12/2025 07:16

I listened to an episode of the Crime Agents podcast recently. They were discussing the abysmal conviction rates for rape. The guest was a DCI who does a lot of work in this area.

She said she believe conviction rates would improve if rape case were t
heard without a jury. She said female jurors in particular are less likely to believe victims. How depressing 🙁

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female jurors in particular are less likely to believe victims.

I think female judges and jurors in these cases should be made to armwrestle an average-sized man before they're sworn in.

SlackJawedDisbeliefXY · 04/12/2025 10:40

BendoftheBeginning · 04/12/2025 10:33

After reading Foran’s analysis, it sounds like an appeal could very well be in the offing if the claimant can bear going through all that again. But it is such an important precedent to set!

The judge hasn’t deliberately set out a crap argument to leave an appeal case extremely likely to be granted, has she? (I am not always tinfoil-hatted, I swear!)

Careful, the story that the tin foil hat protects you from the mind control rays is government disinformation - it actually acts as an antenna amplifying their effect 😉

BendoftheBeginning · 04/12/2025 10:33

After reading Foran’s analysis, it sounds like an appeal could very well be in the offing if the claimant can bear going through all that again. But it is such an important precedent to set!

The judge hasn’t deliberately set out a crap argument to leave an appeal case extremely likely to be granted, has she? (I am not always tinfoil-hatted, I swear!)

NebulousSupportPostcard · 04/12/2025 10:15

ItsAllGoingToBeFine · 04/12/2025 09:46

It's such a confusing judgement - the judge comes across as either incredibly obtuse, or a TRA, neither of which I would expect a judge to be.

I get the impression from what she has previously out out in the press about her lifestyle and charity work in "fashionable North Berwick" that she is a posh twat with luxury belief systems, and the workforce just needs to be slapped down for the greater good.

soocool · 04/12/2025 10:09

Forgive my ignorance, but is there a panel on such Tribunals, or is it just the judge making the decision?

GallantKumquat · 04/12/2025 10:09

contemporaneousnote · 04/12/2025 08:42

I thought this was an interesting analysis from *Natashaetc on Twitter, Michael Foran said he agreed with her analysis and would comment further over the next few weeks.
*This judgment is not only astonishing, but profoundly flawed. Not because a tribunal ruled against a claimant (that happens in cases) but because of the linguistic gymnastics required to pretend the Equality Act doesn’t say what it does.

Sex is a protected characteristic. The Supreme Court confirmed in For Women Scotland that the terms “man” and “woman” in the Equality Act mean biological sex. Yet this tribunal effectively declared biological sex “unknowable” in workplace toilets – therefore legally irrelevant. That isn’t interpretation. That’s a quiet attempt to delete sex from the law entirely – and doing so from a lower court isn’t merely overreach, it’s a grasp halfway round the globe.

The judge did not merely err in law; they dismissed women’s unique privacy needs with the claim that there’s no greater need for bodily privacy than when a man defecates. There is no legal principle behind that assertion, no evidential basis, and no right for a tribunal to plant a speculative flag in contested social theory and call it law. Centuries of safeguarding cannot be waved away for convenience.

The misreading of discrimination law is equally extraordinary. The judge leaned heavily on the fact Ms Kelly was the only woman who complained – as if discrimination were a popularity contest. The Supreme Court in Essop v Home Office (2017) made it absolutely clear – in indirect discrimination claims you do not need every affected person to object, and you do not need to explain why the disadvantage exists. Group disadvantage can exist whether women speak up or remain silent – especially when silence is driven by fear of consequence.

And the argument that “she kept using the toilet so there’s no deterrent effect”? Please. That’s the discrimination equivalent of telling a wheelchair user who struggles up steps that they must be fine without a ramp. Putting up with discrimination doesn’t mean the discrimination ceases to exist.

A tribunal’s job is to apply Parliament’s statute and follow binding appellate authority. It is not to rewrite the definition of “woman” based on the judge’s personal sociology. The moment biological sex is treated as optional, sex based rights collapse – without a single democratic or binding legal mandate to remove them.

This judgment didn’t just get the law wrong. It leapt over the line into policymaking – giving more weight to non-binding guidance than to binding precedent. That’s why the appeal isn’t just justified – it’s essential.

Women’s rights cannot depend on whether a tribunal finds our bodies too “inconvenient” to acknowledge.*

That's a great reference. Thanks! I should have known to take a look at what Michael Foran had to say but I'm not on Twitter and am shamefully not a paid subscriber to his substack.

borntobequiet · 04/12/2025 10:08

Boiledbeetle · 04/12/2025 09:53

That coming from a woman judge means to me that the judge has been incredibly lucky and is one of those women who have never experienced a flooding during her period.

I had a female doctor years ago who seemed to think women were making shit up because she, as she always insisted on telling me when I was telling her about flooding and heavy periods that went on for weeks, that hers didn't hurt and only lasted a few days.

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I’ve generally found male GPs more helpful and sympathetic with these issues. One female GP was particularly curt and dismissive. One male GP told me that he took menopause symptoms seriously as he had a close family member (I assumed his mother) who had had a particularly difficult time with it.

Shortshriftandlethal · 04/12/2025 10:03

Any appeal needs to focus on legal consistency rather than the ins and outs of flooding and sexual trauma, I'd say. Keep it logical and consistent rather than emotive. The judge obviously got too involved with the heat of the issue.

Boiledbeetle · 04/12/2025 09:53

alsoFanOfNaomi · 03/12/2025 16:58

And there's no problem with a woman sharing basins with men if she's cleaning herself up after a period disaster, because toilet paper is available in the cubicle.

That coming from a woman judge means to me that the judge has been incredibly lucky and is one of those women who have never experienced a flooding during her period.

I had a female doctor years ago who seemed to think women were making shit up because she, as she always insisted on telling me when I was telling her about flooding and heavy periods that went on for weeks, that hers didn't hurt and only lasted a few days.