President of Employment Tribunals
Complaint regarding the conduct of Employment Judge S.D. Robertson
Case: Samantha Tempest v Rural Payments Agency & Defra (with SEEN as Intervenor)
Tribunal Reference:
Hearing Dates: 23 June 2026 in Leeds
Dear Judge Barry Clarke,
I am writing to make a formal complaint about the conduct of Employment Judge S.D. Robertson in the above employment tribunal proceedings.
Summary of Concerns
I believe the judge’s actions during the hearing demonstrated bias, procedural unfairness, and an overreach that compromised the principles of open justice, freedom of expression, and the right to effective advocacy.
You will be aware that Judicial Conduct in Leeds has recently been investigated in following a U-turn by a judicial watchdog. This related to 10 complaints, spanning a seven-year period, made against Philip Lancaster, an employment tribunal judge in Leeds.
The Judicial Conduct Investigations Office (JCIO) had previously dismissed most of the allegations against Lancaster without examining them. We trust that you will address these most serious matters, especially in light of the failure to address inappropriate behaviour in this tribunal setting very recently.
Specifically:
Incorrect and Unnecessary Decisions on Pronouns / Compelled Speech
The judge directed that specific pronouns or terminology be used when referring to the claimant (Samantha Tempest), including in the advocacy of Naomi Cunningham (counsel for the intervenor SEEN) and her client Elspeth Duemmer Wrigley. This amounted to compelling speech and required the intervenor’s legal team to adopt language they reasonably believe to be inaccurate or contrary to their case. Such a direction interferes with counsel’s ability to present their client’s position honestly and effectively, and raises serious Article 10 ECHR (freedom of expression) concerns.
In particular Elspeth as a witness was ordered to use the pronouns they/them. This is in express breach of the EBTT, and in any event it is nonsensical to use plural pronouns for a man who has the protected characteristic of gender reassignment. Tempest identifies as a transwoman and non binary pronouns only serve to confuse the witness without satisfying Tempests wish to be addressed by female pronouns.
Controlling and Restricting Naomi Cunningham’s Advocacy
The judge’s interventions and rulings limited or controlled the manner in which Ms Cunningham could cross-examine or make submissions on behalf of the intervenor. This included restrictions on ordinary descriptive language regarding sex and gender, which are central to the issues in dispute. These restrictions appear to have gone beyond what is necessary for the orderly conduct of proceedings and instead favoured one party’s preferred narrative.
Appearance of Bias
The cumulative effect of these rulings creates a reasonable perception that the tribunal was not impartial. In a case involving sensitive issues of sex, gender, and protected beliefs, it is essential that the judge maintains strict neutrality and does not compel parties (or their representatives) to affirm contested beliefs through language.
Why This Matters
Judges have a duty under the Equal Treatment Bench Book and broader judicial principles to remain neutral and to avoid compelling parties to use language that engages their protected beliefs (as recognised in cases such as Forstater).
Requiring counsel to use particular pronouns or descriptors in this context risks turning the tribunal into an instrument of compelled speech rather than a neutral arbiter of facts and law.I understand that judicial independence is important and that case management decisions are generally a matter for the judge. However, when such decisions engage fundamental rights and create an appearance of unfairness or pre-determination, they warrant independent scrutiny. I refer you to the following supporting material:
Tribunal Tweets or live reporting of the relevant exchanges
Any transcripts or notes of the hearing
Public reports on the case
I respectfully request that this complaint be investigated thoroughly and that appropriate action be taken. I am happy to provide any further information required.
Yours faithfully,
[Your Full Name]
-------
Thoughts? Best examples?