Tempest v Rural Payments Agency Tribunal Thread 5

[fanOfBen]

Previous thread:
www.mumsnet.com/talk/womens_rights/5549488-tempest-v-rural-payments-agency-tribunal-thread-4

TT substack: https://tribunaltweets.substack.com/p/tempest-vs-defra-and-rural-payments

Tempest (a TW) is claiming discrimination, harassment and/or victimisation on grounds of gender reassignment. Central to the claim is the existence of the Sex Equality and Equity Network in the Civil Service (SEEN). SEEN has been granted right to intervene. Parts of the original claim against the co-chair of SEEN (Elspeth Duemmer-Wrigley) and another party (Andreas Mueller) were struck out or narrowed. Another claimant, PQ, is no longer part of the case.
I will also note that Elspeth still has a garden in need of seeds and water to support the ability of SEEN to be an intervenor in this case. The claim originated because she said "only women menstruate" and a search with her name and those terms at the usual gardening website should point you to her plot.

From TT:

HH: P1035-7, dispute resolution form, ST reiterates re Yammer 15/6
SM: Yes
HH: Pls read p1037 esp final para
SM [ reading]

HH: Sets out in detail that feels HR have let down
SM: yes
HH: This is detailed doc, refs to case law and EHRC guidance
SM: Yes

HH: p1038 - outcome sought: written apology from HR re moderation failings. Do you know why you didn't get this doc?
SM: I can't recall seeing this, I don't think the themes here were covered by the IX and my report. It's in my WS.

J: Were criticisms of HR dealt with in your report?
SM: I considered whether DEFRA policy and decisions were reasonable, so yes that included whether HR doing the role they should. So yes, within my thinking.

J: Can you remember if you saw this second grievance?
SM: I can't no. When I came to write my WS I was thinking, I don't remember this though the points are familiar

J: Am just trying to identify why that.
HH: Will come to that later.

HH: Carl Harman appointed to IX, reported 19/2, we see his report at [missed]
SM: Yes
HH: Your WS says you read carefully before reaching decision
SM: Yes

HH: p1365 - summary of finding, that there may be case to answer that GC views expressed in a way that upset others, and refers to the GI & I guidance
SM: Yes

HH: And p1361, that some posts by SEEN members well beyond boundaries of professionalism. Strong finding?
SM: Yes, and says may have breached policies - which is my role, to decide that.

HH: Recommends that posts should be moderated and reviewed?
SM: Not sure about that - where?
HH: p1366 - says there may be policy gaps?
SM: yes

HH: Sets out the gaps - clarity re expression of belief, guidance to staff, engagement with trans/NB staff?
SM: Yes

HH: So, "case to answer" and "beyond boundaries" - you accepted these in your draft report? p1859. Your 3rd para says, ST shared info showing how what was happened made unsafe at work, having to limit self to avoid harm

HH: You say ST showed how visibility of SEEN in workplace made feelings of undermined etc?
SM: You are reading too much into the draft document, if I may explain?

HH: Too much how?
SM: I met ST and we went through the IX report. I was trying to work out way forward, I put pen to paper - I had felt ST distress so I wrote from ST PoV, as a sounding board for me to start from.

J: You say distressed - carry on while I take notes.
SM: I drafted it as a starting point from ST PoV, and then discussed with HR case worker Emma, v helpful, to then work in the evidence base and so on.

SM: As you can see the structure of this is not related to the agreed scope, covers nothing in detail, mentions no evidence - it's just a working starter, that's all, I almost regret writing this.

SM tells HH that she is reading too much into the investigation document. She is filling up spaces/gaps with emotive content, whereas he is concerned with the fairness of the process.

The judge perks up at the mention of ST''s distress.

HH trying to tell SM what he feels and doesn't feel now.......

HH: You say ST showed how visibility of SEEN in workplace made feelings of undermined etc?
SM: You are reading too much into the draft document, if I may explain?
HH: Too much how?
SM: I met ST and we went through the IX report. I was trying to work out way forward, I put pen to paper - I had felt ST distress so I wrote from ST PoV, as a sounding board for me to start from.
J: You say distressed - carry on while I take notes.
SM: I drafted it as a starting point from ST PoV, and then discussed with HR case worker Emma, v helpful, to then work in the evidence base and so on.
SM: As you can see the structure of this is not related to the agreed scope, covers nothing in detail, mentions no evidence - it's just a working starter, that's all, I almost regret writing this.

I bet you do!

Presumably using, or not using, Yammer is optional for anyone?

From TT:

HH: Am sure you do regret, bcs this doc shows that you completely about turned on your decision from April to May
SM: I didn't have a decision 18/4. I had felt ST's distress, and I cared abou thtat.

HH: p1857 you did have a decision, we see here. You sent this or version to Emma Canning - was this first time?
SM: Yes think so.
HH: You say, draft decision document. You have reached your decision, and will now fine tune. That's what you meant.

SM: I've already said what I meant about this draft document.

HH: You are director at EA, 25 years experience, countless grvs. Would not send off a letter bcs you felt sorry for someone?
SM: My way of working is to fire things off and then rework, dismantle. In all things.

HH: But you say in email to Emma that you are not going to go round it all again.
SM: No - that meant, then. That I was not going to at this point put the evidence in and rework for that, and to the scope etc

SM: Obviously important to me to go back to the scope, and obviously the evidence base was going to be important - to have an objective and defendable decision.

HH: When you reached the conclusion at p1859, the decision, you were referring to C's complaints re posts 3/5 and 15/6, the MW post, the lanyards, the SEEN open platform. That's what you meant when you said C had clearly demonstrated undermining etc
SM: That's not the case.

SM certainly seems to have been through his own process in trying to implement The Process. He explains how he tries to enter into the complainant's personal persepctive in order to be able to get a grip on how to proceed. Once he's done that he can then balance that persepctive with his other considerations.

I am reminded of the advice Laurie Penny gave a woman whose child was distressed at seeing a naked or nearly naked man in a changing room: “don’t look”. Maybe ST should not have been on Yammer.

And if this case is upheld, we should all be objecting to the progress lanyards and posters and comments about TWAW.

I can imagine that doing it this way might be good for making sure you've looked at the matter from all angles, not only the one most natural to you - but sending the result to someone else seems bizarre!

SM: EC is the case worker, at MoJ, only one I can talk to, so I'm kind of asking for a re-steer about how to handle process at this point.

I'm sure he does regret writing it. His explanation is not credible to me. He probably took the job on as a favour to Claire, the senior civil service being a small club, and only realised that the legal advice would be different later.

Especially without putting in bigly letters at the top that this is written from ST's point of view not SMs and is still very much a work in progress.

It does feel like he's not being entirely correct in his recall of events.

If this is the case, and he changed his mind on receiving legal advice (which would be fair enough?), why doesn't he just say so?

Surely a court can't criticise him for that. I'm a bit confused!

The question for the panel is do they believe this explanation. To be honest I wouldn’t so ST may have a case.

From TT:

J: About those 5 allegations?
SM: Not at all. It was just about how ST felt - reflecting that.

HH: What you are not saying in this doc is that it's about how ST felt. You say ST has "clearly demonstrated". What complaints did you have in mind then?
SM: This was not based on evidence, not an assessment of that, it was a gut response to get something on the page.

HH: But either way, what complaints by ST did you have in mind?
SM: It was, ST clearly generally distressed. Not about specific complaints.

HH: Good point for break?
J: Just some Qs on this doc. You say it was a draft relecting ST perceptions, perceptions about what?
SM: How ST felt, and how that made me feel. This is a subjective and emotional doc - about that aspect of it all.

J: So it's a first draft, so, why did you send it to HR?
SM: EC is the case worker, at MoJ, only one I can talk to, so I'm kind of asking for a re-steer about how to handle process at this point.

J: Is this EC's response here? [page]
SM: Yes
J: There's a redaction p1857
AL: For professional privilege.
J: HH do you have an issue about that? This looks as if some advice removed - am a bit troubled.

AL: I'm told that such advice is always redacted - I will take instructions on it.
HH: Will also take instructions.

J: As I say, am troubled - this redaction does appear to be in meat of the document. [more discussion AL and HH. NC also speaking but cannot hear]
J: No I don't think obviously from the context what it is.

J: Mr Moore, was the email 20/3 the only advice from EC before you finalised your report?
SM: I think so - I say in WS that I might have sent it to her just before formally published, but nothing was changed as a result if I did.

J: We will take a 15 min break
NC: Can I just ask, Elspeth DW asked for a remote link for today, but has not received?
J: Clerks will sort.

[BREAK]

@threadreaderapp please unroll

Yes, his method of working seems to be quite informal. He's used to bouncing things off other team members - but this may well be in such a way that could be seen as not being entirely transparent or above board.

The judge is "troubled"

I want to know what was redacted

J: There's a redaction p1857
AL: For professional privilege.
J: HH do you have an issue about that? This looks as if some advice removed - am a bit troubled.

Ouch

As I said in an earlier post, about SM being about process not content:
Agreed - but the process had better be flawless...

It's looking a bit shaky.

HH: What you are not saying in this doc is that it's about how ST felt. You say ST has "clearly demonstrated". What complaints did you have in mind then?

Without seeing that draft itself it is hard to know what to make of it - could be that ST has "clearly demonstrated" that he felt distressed by SEEN - which is not the same as saying that SEEN caused his feelings by harrassing him.
I suppose the draft itself is not in the WS and will not be public?

What a lot of impact to celebrate. Yet nobody listens to them at all.

And what a useful record. Even a handy pdf https://www.civilservice.lgbt/impact-index/assets/booklet-print.pdf So many influencers and so many government organsations impacted by their worthy activities over the years. Someone even gets a lifetime award.

And then there are awards for "Recognising the hard work that LGBT networks do to create inclusive workplaces, support LGBT staff and shape the wider world around them". Should a Civil Service staff network really be doing that last bit? Aren't civil servants paid to be neutral servants of the state?

And Tinkerbell was so discriminated against, nay erased because he got to break the law and harass his colleagues for sharing legal views.

And oh my gosh those horrid lanyards.

Poor Tink.

I think SM met with ST and drank the kool aid then asked EC to review his first draft and EC went err have you thought about women!