Kelly v Leonardo Employment Tribunal Thread 4

[ickky]

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

Thread 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

Thread 3
https://www.mumsnet.com/talk/womens_rights/5421183-kelly-v-leonardo-employment-tribunal-thread-3

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).

@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.

New user name

BrittleBubblesOfBullshit alert 🚨

EnthickenedNebulousSupportPostcard for me!

@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.

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?

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

I agree.

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

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

An appeal can be made against an Employment Tribunal's ruling on the grounds that its decision was perverse.

An Employment Tribunal is said to have made a 'perverse decision' if it reached a conclusion that is irrational, and no other reasonable Employment Tribunal would have come to the same conclusion.

Appeals on this basis are very rare, as it would (hopefully) be extraordinarily unusual for a Judge to make a decision that is so wrong it makes no sense.

I would argue that this could be such a very rare case. The written judgement is so bizarre. And it seems littered with personal views outside of, and in some cases conflicting with the law itself.

@NebulousSupportPostcard - I have the link - daugher Thomson is named here and a key athlete at Team East Lothian

https://teameastlothian.org.uk/2022/01/17/medal-haul-at-east-district-champs/

So I'd say one and the same

Maybe she just volunteers at her kids' athletic club.

Maybe like an awful lot of clubs and associations these days, the club has incorporated genderwoo into its rules and regs [though we're not even sure that East Lothian athletics club has done so].

I doubt if she chose her kids' athletic club on the basis of their pro-trans policy - if it has a pro-trans policy.

I don't think that indicates a bias/conflict of interests, it may just mean she's the athletics equivalent of a soccer mom

As trustee and chairperson she would be responsible for overseeing the implementation of such policies, not merely a passive observer.

She is the Chairperson. I know if I was Chairperson of an organisation I wouldn't adopt trans inclusive policies so that trans identified males would then race against girls.

That isn’t what happened. The EAT decided the point of law then required the ET to be re-heard. It was the second ET that had witnesses etc not the EAT.

Could that happen with Maria's case?

OK, I admit you and Legobricksinatub are 100% right about her being high up in the athletics club; but we don't know, do we, whether or not that club has actually adopted trans inclusive policies?

Sometimes things just don't seem right to me and I raise an issue, 'hang on a minute..', and if I'm contradicted and proved wrong, that's fine.

I feel bad, though, if somethings doesn't feel right and I don't say 'hang on a minute...'

It's never to be argumentative for the sake of it

Hey no beef - if we can’t rebut with evidence then it’s worthless research anyway!

Best to be challenged and consider all thoughts.

Maya’s initial ET didn’t get that far as there was a preliminary hearing where her belief was found not to be WORIADS. Then that was overturned at EAT, then she had her full tribunal hearing which she won as we all know.

It could, but as a pp said the EAT could decide:

• it was a perverse decision
• the original judgement is upheld
• the original decision erred in law and this is the judgement.

The first step is an appeal needs to be lodged.

I agree we dont know, but thought it was worth raising it because it may indicate bias. Not saying that she is necessarily leading either of the organisations wilfully down that path, but as Chair of one and long serving Trustee of other, she is in roles with responsible for oversight of policies that do seem to align somewhat with her (faulty) thought process around SC judgement.

I read guidance to Scottish judges earlier, and although unpaid trustee roles like this are permitted, it is suggested Judges could consult the President if there is a possibility of perceived conflict of interest/apparent bias. Judges also shouldn't recuse themselves without v good reason. I think another option is to declare roles/involvement to both sides in advance, to allow for objection before tribunal takes place, and that may have happened already, we dont know.

I think it likely that both roles are an important part of the J's personal/family life, and so it's unlikely she's unaware of the policies.

The Fidra charity puts emphasis on taking a "pragmatic, collaborative" approach to its environmental work. Being pragmatic and collaborative can be a smart way to get on with people and achieve good things in the world
. It can also be a way of satisfying personal as well as public agendas, which is why checks and balances are needed, I think.

So to validate thinking - MS is a Chairperson of this organsisation.

Per OSCR https://www.oscr.org.uk/about-charities/search-the-register/charity-details?number=SC045501

6.6 To affiliate to the governing body of athletics, namely Scottish Athletics Ltd (SAL), and comply with and uphold the Rules and Regulations of both SAL and UK Athletics

So therefore as the directing mind of this organisation which has chosed to affiliate and adopt the rules and regulations of these entities - this makes the Club entirely 'trans-inclusive'.

https://www.scottishathletics.org.uk/about/equality/

https://www.scottishathletics.org.uk/wp-content/uploads/2021/09/Equality-Guidance-For-Clubs-Sept-2021-FINAL.pdf - therefore this document applies to the Club. (Page 30/58) Support the trans person with their choice of changing facilities where possible – a conversation should be had around where this person feels most comfortable changing.

So at the club which Michelle Sutherland chairs - she is familiar with the process that you support the trans person - and they choose where they feel most comfortable changing. More than someone who drives their kid to football in a minivan.

I certainly don't think its clear cut but it would be interesting to know if she has discussed the possibility with her President, or declared it to the parties, to allow for any objections to be raised.

It's not so much that she stands to gain from adopting those policies in her leadership roles. Arguably, eg TWAW policies could even bring the females in her own family lower down in sporting league table rankings. But if the organisations are already steeped in gender identity woo, and given that she has such strong attachments to the organisations and activities, then arguably she might feel there is a lot at stake for the Judge who makes a pivotal decision on a relevant case. And that might influence the decision making process unduly.

Equally she may be very strong minded and fully believe in the decision, as a judgement independent of her other roles.

We can't know, but, for propriety's sake, hopefully she thought all this through some time ago and acted as necessary to satisfy herself that discussions like this wont gain traction.

The EAT could also decide that the ET erred in law, but even under the correct interpretation of the law the claim is also dismissed.

Just to say that this is about changing rooms. UK Athletics rules apply so if you are competing at a particular level you need to be in your biological sex category.
Trans identifying men won't be competing with the girls if it goes to qualification.

Agreed - judicial bias wouldn't be the limb I'd appeal on. The actual poor quality and failure to apply the law would make more of an impact.....