Kelly v Leonardo Employment Tribunal Thread 4

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.

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%.

It is like this judge has deliberately made it nonsensical so that the appeal would be pursued and an overturn binding.

If she needs some gardening done for her appeal I’m in!! Absolutely the wrong decision. Maya lost first time round.

In theory the SC should have stopped this happening in the first place, so no I don't believe if it's shredded it would curb it.

Why would a judge ignore a EAT if they choose to ignore a SC ruling?!

What this judgement demonstrates is that belief will very often trump reason, reality and humanity, even in the most intellectually able people, who are often capable of using their abilities to convincingly justify their beliefs.
The surprising thing about it is that the reasoning shown here is of such poor quality and evidently motivated by contempt.

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

Can an appeal judge make any recommendation for a lower court judge who makes a political ruling in clear defiance of the law? In terms of discipline? Dismissal? Retraining?

Ah yes, the dreaded gushing sensation, and the high speed waddle to the loo. How I do not miss that. I also ended up in hospital with anaemia, and had to have multiple blood transfusions over several days. Luckily the clot the size of the palm of my hand that escaped landed on the bathroom floor at home rather than in the office loos, but the clean up of that was bad enough, I don't want to think about dealing with it in a cubicle situation. Even if you are able to wipe your bloody hands on loo roll, there's still going to be some residue left that stains the tap water pink when you go to wash your hands.

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.*

I looked at the judgment last night.

I can about get her reasoning on the 1992 Regs and direct discrimination

On the harassment and indirect discrimination not at all.

I’ve only half been following these threads but I’m so confused at how she lost, it seemed really obvious to me that she was right and I don’t know if that’s my own bias or if something has gone horribly wrong somehow.

You make good points. As others have noted above, NC was probably in receipt of the judgment before resigning as chair of SM. I suspect she’s getting ready to go in all gun’s blazing. I don’t know the actual wording but you can appeal on the judgment being outlandish and points of law which seems to be the case here.

They’re rejoicing over it on Reddit, and they think that it will result in a binding decision that TIMs can be allowed to use women only spaces if she appeals. Many of them aren’t the brightest, but it is always a risk.

IANAL but if a J is later shredded by an EAT judgment would that curb it, potentially?

It's not like women in engineering haven't come across the full range of men characters.
The charmers, the bullies, the kind ones, the shy ones, the weirdos in a good way, the weirdos in a bad way. From being surrounded by them in A level maths to having to pick up the slack in degree group projects. Before you even get your first professional job you've heard all the chat when they don't care that you are listening.
I absolutely get what Maria said about it being a refuge. It's a chance to take a deep breathe, collect yourself and then get back out there. And historically because so few women work in engineering you have an expectation of privacy and being the sole user, it's not the interval at a theatre rush. Which also means that you don't have a group to witness the behaviour of users out of the ordinary.

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.)

Hopefully it will get overturned on appeal, but, in the meantime, TRAs will be using this judgement as leverage in their workplace to keep using female facilities.

We will have to see what the outcome is in the GLP judicial review and what that says about toilets..back and forth we go 🙁

I really hate saying this and maybe should hand in my feminist card, but the most ardent TRA nonsense seems to infect female academics and members of the judiciary at a disproportionate rate.

Yes, the old thing of succeeding in what was and is still a man's world by being more macho than the men.

There is absolutely nothing in this judgement that seems consistent with the SC ruling.

It HAS to go to appeal.

The troubling thing is now, even if it's overruled and regarded as an absolutely batshit decision, there's now incentive to force so many more of these cases through court in order to produce more bats hit results like this.

It fundamentally undermines trust in the justice system if this is ultimately going to be the way it goes.

I think patriarchy has always relied on women for its enforcement and as feminism started making progress the women who uphold it were allowed into different spheres but only if they were willing to uphold it. We see very few women with any radical viewpoints making it up the greasy pole to positions of authority unless they hold their wheesht. Some will be quiet feminists but many will be, and probably unconsciously, so steeped in upholding the societal structures that uphold the patriarchy they have no real sense that their ability to value women is totally informed by that — including themselves I imagine.

I’ve worked in various institutions across 40 years and the feminist thinkers are seldom the ones made room for at the top.

So I don’t think you need hand in your card — feminism has always been about acknowledging that being a woman doesn’t guarantee a feminist position. Women can be as patriarchal as men even if they are ‘allowed’, in a limited way, professional roles.

It can also, in my view, result in a punitive approach to women holding out their soup bowl and asking for a reasonable share of the soup (rather than more) ie get back in your place woman! And I feel this judge is doing that.

I’ve been pondering about dear Michelle since she clearly isn’t the greatest of logical minds.

She was at MacRoberts LLP - a Scottish law firm for at least 8 years I think - I can date her there between 2010 and 2018 (probably up to her Judical appointment in 2020.

Published docs 2010 to 2014
https://www.lexology.com/firms/700/michellesutherland

Legal Director by 2016
https://www.scottishfinancialnews.com/articles/blog-the-enterprise-act-2016-2

She had got to the level of Consultant at MacRoberts by 2018.

Maria Kelly’s Solicitor- was senior to her in a small team during this entire period

Katy Wedderburn of ‘gunnercooke llp’ would have been senior to her during that time being a partner in the employment team at MacRoberts for that period.

https://www.lawscot.org.uk/people/katy-wedderburn/

Katy was partner from 2013 to 2023 at MacRoberts per her LinkedIn.

Maybe it’s just bad blood! The type that can’t be wiped away with a bit of toilet roll. Katy the bad old TERF and Michelle who thinks women and men in the dresses are the same. This will show her!

Anyone with the ability to WayBack Machine macroberts.com could definitely turn up stuff. It’s on there.

What I thought was particularly outrageous in this judgment was the comments about the unworkability of toilet access.

She basically said that toilet access on the basis of biological sex is unworkable because you can’t tell someone’s sex by looking at them.

It is unworkable on the basis of certificated sex as you can’t ask anyone if they have a GRC.

So may as well let anyone in who says they’re living as a woman

Completely glossed over the fact that whether someone is “living as a woman” is completely irrelevant to their access to a single sex service.

To me these kind of comments tend to show an agenda. Straight out of the TRA playbook.

So let’s not bother with any laws then shall we as some of them may be difficult to enforce. Where does it stop. Speeding? Murder?

More about Maria's intention to appeal

https://www.scotsman.com/news/courts/leonardo-engineer-to-appeal-after-losing-case-over-single-sex-toilets-access-5428657

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 🙁