Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton, following Employment Tribunal judgment - thread #62

When you appeal to the Employment Appeal Tribunal, the sift judge will decide whether or not to let any or all of your grounds of appeal progress to an appeal hearing. If the sift judge doesn't allow one or more (or all) of your grounds of appeal to go ahead you have the chance to have the decision reconsidered by a different judge at an in-person hearing, called a rule3(10) hearing. It is just to decide if the ground(s) of appeal can go ahead or not. A second chance at the sift, as it were.

We don't have a date for it, but it will be before the EAT hearing, which is expected to be in the first half of next year. Sandie's team applied for leave to appeal on 14 grounds. 13 of them have been approved and will go to the EAT. However, the judge refused to allow them to proceed with the allegation of bias. The rule 3(10) hearing will allow them to argue that they should be allowed to take the complaint of bias forward despite the initial refusal.

Yes, I particularly liked this very short Ground

Ground 11 – Harassment because of rejection of harassment: incorrect test and conclusion on causation
40.
The ET’s reasoning at Judgment, §1234 is nonsensical and cannot stand. If Grounds 3 and 4 above are upheld, it follows that the Tribunal’s finding that the acts in question were not because of C’s rejection of harassment cannot be sustained.

I think this might be lawyer-speak for "no, I can't even...", maybe with the second sentence tacked on because someone said "come on, we've got to have more than one sentence here". For reference para 1234 is this:

(xxvii) Did R1 subject C to the detriments referred to at subparagraphs (a)-(e) and (g) to (k) of issue 5 above because she had rejected R2’s harassment of her?
1234. In our view the answer to this question is also in the negative as there was no harassment of the claimant by the second respondent for the reasons given above. The claimant did not allege that she had rejected harassment until that claim was added by amendment, until which time it appears to us that the first respondent was unaware of that allegation, and there was no evidence we heard on which it could be said that the first respondent ought reasonably to have been aware of it. On that basis it appears to us that rejection of harassment cannot have been any part of the reason for the acts referred to. In our view the claimant has not proved primary facts from which the inference can be drawn. This claim is also dismissed accordingly.

Open lnjustice

when is the 3(10) hearing thingy and can someone explain what it is to me?

I love an exclamation mark ❗️ it’s second place only to ellipses for me ….

Yes, His Honour Judge James Tayler was the judge for the tribunal that got Forstater wrong. Not sure that has any significance here. The only ground he has ruled out is ground 13, bias. The question is whether the matters raised are enough to give an arguable case that the ET was biased rather than incompetent. I would not regard myself as a neutral observer, so I don't think I'm the best person to say whether the points raised in support of ground 13 are enough to give an arguable case. That is now a question for a rule 3(10) hearing where Sandie's team will try to convince another judge that they do have an arguable case for bias. Note that rule 3(10) hearings are generally short (20-30 minutes) and only hear arguments from one side, so Fife and Upton wouldn't be represented there. Note also that success in this hearing doesn't mean that Sandie's team have proved their was bias, just that they have an arguable case.

Isn't the sift judge the same judge who found against Maya Forstater in the ET?

The despite the claim of 'contemporaneous' was utterly destroyed by Mr Borthwick but Kemp still claimed he found Upton to be credible and truthful. This is putting all the 'biological female' nonsense to one side.

That boils my piss to this day. He proved that Big Dr Ted’s evidence was tampered with and they basically openly accused him of bias?
I can’t believe they just moved on from that!

A decision being perverse does not necessarily lead to a full retrial. If the EAT thinks there is only one possible outcome based on the ET's findings of fact, they will simply change the decision. They will only send it back to be reheard from scratch if they decide that there is still more than one possible outcome.

Whilst sending it back for retrial means the ET's findings of fact could be overturned, it is not guaranteed that will happen and it is possible the new ET would find in favour of Fife and Upton on different, legally acceptable grounds (although I can't think what those grounds would be).

The EAT may order a retrial with a different tribunal, but I think it is unlikely. Even if we accept the ET's findings of fact (at least some of which I think were perverse given the evidence), my view is that there is only one possible outcome given the law as it stands. If the EAT agrees, they will not send it back to an EAT. If the outcome would be the same regardless of the findings on Upton's trustworthiness, etc., there is no need for a retrial.

I think 'perverse' is more likely than merely 'wrong' to lead to a full retrial rather than the EAT simply going over the points of law.

A decision a reasonable tribunal directing itself properly couldn't have made on the evidence in front of it:

https://www.employmentbarrister.co.uk/eat/what-is-a-perversity-appeal-in-the-employment-appeal-tribunal-and-how-high-is-the-threshold

AKA: batshit.

For those of us who aren't really of a legal bent, can we have an explanation of what "perverse" means in this context? Is it the judicial equivalent of "not even wrong!"?

From the Dundee Courier -

https://www.thecourier.co.uk/fp/politics/5568329/sandie-peggie-ai-appeal/

That's quite the list of 'wrong (alternatively, perverse)'. And a nice sprinkling of 'irrational' and 'nonsensical' for variety.

Any competent judge ought to cringe himself inside out reading such a list of failings. Whether they're ultimately upheld or not, simply the fact that the judgement left room for them to be reasonably argued is shockingly poor.

The decision should be taken only by those who hear the case. The judge can discuss hypothetical scenarios and legal concepts with colleagues, but that is all.

If the judicial colleague in this case influenced the judgment in any way, that was improper and should lead to a successful appeal.

If the judicial colleague raised any new legal points, authorities or arguments that had not been raised in the hearing, the tribunal should have given all the parties the opportunity to address them. Note that ground 12 for the appeal includes a complaint that the tribunal relied on more than 100 authorities that neither party had cited without giving the parties any opportunity to make representations.

So no, Sandie does not necessarily have a right to know who this person was. However, this person should not have made or influenced any of the decisions in this case.

IANAL and have a very low tolerance for legalise, but surely you have a right to face your judges. If this AI legal colleague of Kemp helped him draft the judgment surely Sandie Peggie has a right to know who that person is!

I'm hoping the Streisand Effect will be engaged by the G13 rejection.

MG seems to have very good press relations, hopefully they will be all over any pre-hearing, ready to rehash the ridiculousness of EJ Kemp's Christmas pantomime.

Sandie Peggie’s lawyers pursue ‘bias’ claim over tribunal verdict

https://www.thetimes.com/article/1c17d504-6c23-4c36-9859-b07366792423?shareToken=a97e1ada3238f5f9bff48bec58eb23e2

But they've got an entire hearing to argue about bias.........so there's that.

Archive version: https://archive.ph/lBmJ0

Covered in the Telegraph (hopefully this link will work):
https://www.telegraph.co.uk/gift/cea9ab6f91d180fb

I've restricted my use of exclaimation marks! (Sometimes, in an official capacity!)

Still the most ridiculous reason to doubt an expert witness....

Indeed, so it isn't clear at this stage if they will even be allowed to put ground 13 to the EAT.