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.

HH: You didn't Google or look at Wikipedia re MW?
SM: No

Wikipedia!!!!

Thanks. That is the crucial thing really. Any finding that there was harassment because SEEN should have been shut down by Defra would be a disaster (and will have wide reaching ramifications) but if the finding is that there were flaws in the grievance procedure itself and ST wins on those points, it's less so.

Yammer viewing was voluntary. He didn’t need to read it to do his job.

If anyone will appreciate that it will be the judge and panel.

She and her all over the place.

I could see ST winning re. the grievance process on the grounds that he was strung along and should have been told far, far sooner to get a grip....man 😁

Yes, and in practical terms that’s why SEEN is represented at the tribunal.

From TT:

HH: p219 (C supplementary) pls read introduction
HH: wikipedia extract about the MW film. Says film title is widespread theme in anti-trans discourse. You didn't find this out?
SM: No

HH: p220, summarises the film, says MW gives a speech to a school board and says re use of preferred pronouns MW has said this is child abuse, a cult, you didn't look this up?
SM: No, I was concerned with DEFRA policies and actions.
HH: p [missed]
J: You will get the same answer.

HH: p235 article by Bethan Johnson re the film, says MW compares GR surgery to Nazi actions?
SM: [reiterates re moderation]

HH: Upsetting to trans ppl?
SM: Yes ST upset
HH: Were you upset?
J: Cannot see relevance
HH: Posting like this bound to upset trans colleagues?
SM: I don't know as I didn't look in that way.

J: C claim was that had suffered distress bcs of posts, how did you evaluate?
SM: So ST gave examples of type of discriminatory comments causing distress, took word that that was case for ST, my issue was, were posts reasonable, was moderation OK?

SM: And I found moderation had had some removed, some changed, and that platform move to Viva Engage plus additional training meant that the forum for it happening had been removed, autumn 2023

SM: So in spring 2024 when I'm deciding - things seem to be sorted, system working relatively well, no more recent evidence of problems.

I suspect Defra would have caved before now if it weren’t for SEEN intervening.

HH: wikipedia extract about the MW film. Says film title is widespread theme in anti-trans discourse...

Of course it does, because it's not an unbiased/neutral source of information, with it being from Wikipedia and all.

From TT:

HH: Do you accept that ST entitled to an outcome re the complaints raised?
SM: We summarise in the 5 headings, in IX report and my decision. We had all accepted that those 5 points were the significant things.

HH: Back to p989 ST goes into detail re MW, says SEEN allowed to post within DEFRA bcs HR professionals don't know enough about it all. ST entitled to finding that it either was or was not acceptable to leave post there?

HH: You didn't address that point.
SM: I was addressing the moderation of posts and complaints, whether that process was working. I think the MW one had been flagged and process of that is logged.

HH: We know someone looked at it, but, ST was complaining of it being up as an example of harm caused by failure to implement first set of recommendations. You say, OK by 2024 but, ST still entitled to reply to the actual issue raised?

J: Did you reach a conclusion about whether that post had been adequately moderated?
SM: No, I didn't look into that.

J: Did you reach a conclusion about whether that post had been adequately moderated?
SM: No, I didn't look into that.

Ouch.

I maybe missing the point but the investigating officer provides the information to the Deciding Officer who then makes a decision. Deciding Officers are not supposed to do their own research.

Wiki - who uses it as a credible source?

From TT:

J: Did you make a finding about whether any of the posts had been adequately moderated?
SM: I looked into whether, but not how.
J: So how were you able to conclude that moderation was working OK when you didn't consider at post level?

SM: No of complaints across periods of Grv1 and Grv2 showed improvement, and the move to Viva Engage and appointing of in-group moderators, so, in 2024 outcome was instead of 100s of complaints there were only a handful, across the company.

SM: So I had confidence that change of platform, training, moderation were having desired effect, stopping ppl getting into conflicts around this.

SM: And to be specific, I was shown no evidence to the contrary of that.

HH: You had formed view that eg MW post were offensive and discriminatory, in draft report.
SM: Beyond the post I don't know anything about MW.
HH: p1859 - you say DEFRA continuing to cause harm to ST

HH: You say that because ST had continued to be exposed to hard by MW post
SM: I have said why and how I wrote that draft.

I’ve been skimming this am, thx to c and p and TT.
Id like to check my understanding , so this chap produced an initial decision, which is on record but not delivered to claimant,but then took legal advice and changed his decision, is that correct? Why is it such a problem to change your mind in the light of new information? (Other than showing that the strong current in the organisation is not in line with legal expectations)

'exposed to harm'
that's a conclusion not a statement of fact.
ST was exposed to it - if he chose to look at it, and didn't approve of it, but that is not, objectively, 'harm', surely?

If I was ST I'd have been expecting them to have actually looked at the posts I was complaining about.

So even if SM had followed policy and procedure perfectly and didn't need to look into them I think I'd still feel pretty aggrieved at a response that doesn't seem to really give a shit.

From TT:

HH: Your conclusion that moderatation and policies OK by 2024 decision time, p1860 [I think] - "arguments or debates" don't address that 1 of our staff harmed by DEFRA current policies / action. You mean MW film?
SM: I don't think I mean any specific detail.

HH: Carl Harman interviewed Dominic Berry?
SM: Yes
HH: p1372 is DB interview notes

HH: Did you read these notes carefully?
SM: Yes
HH: p1373 DB says when he joined DEFRA was appalled by GC postings
SM: Yes

HH: And he told CH that SEEN had a member Beth Gordon, senior HR manager, and had praised MW film? says, celebrating anti-trans figures?
SM: Yes

HH: DB says he pushed back, but his posts deleted - uneven moderation?
SM: I think he says he complained, but not upheld. So presumably he was told why.

HH: p885 is DB complaint to HR. Main concern is that BG post stayed up, his removed. Did you think it important that transphobic content retained, objection removed?

SM: That is not what I found happened.

HH: p1374, DB interview. DB said he'd done FOIs to gov depts. Says out of 21 depts only DEFRA gave SEEN a comms channel. You saw that?
SM: Yes

HH: Wrote to 400+ public bodies, got 141 responses, none had a SEEN comms channel
SM: Yes

HH: p144 (C supp) these are FOI responses, see for example -
J: Did you see these FOIs?
SM: No
J: Asked to look?
SM: No
HH: Didn't seem out?
SM: Not even sure I knew, other than what DB says in interview.

HH: Wrote to 400+ public bodies, got 141 responses, none had a SEEN comms channel
And how many of the 400+ public bodies had LGBTQA+++++ comms channels I wonder?
And flags and days and lanyards..

Not necessarily. If you’ve already accepted that there were distressing posts then there’s no need to read any posts to see if they are distressing. It cannot inform your opinion.

Secondly if there is now implemented a process to moderate posts then distressing posts prior to that process are irrelevant, and cannot inform your opinion.

It’s really important to NOT look at evidence that can only prejudice you without probative value. Look at how much stuff is not permitted to be brought up in court. Why? Because it cannot help the correct outcome be found.

Investigations aren’t there to “give a shit” - they’re there to reach a fair outcome! If ST wants a comfortable sofas and a sympathetic ear, there’s therapy…

HH: Upsetting to trans ppl?
SM: Yes ST upset
HH: Were you upset?
J: Cannot see relevance

Is anyone keeping a tally on how often the judge intervenes in the questioning by different barristers?
HH vs NC vs AL?

And if the process was not properly followed, this is fair enough.

Hard to expect C to swallow an outcome they don't like if the process wasn't done entirely above board and by the book in the first place.

From TT:

HH: p1374 - clearly refers to writing to public bodies, you didn't seek out?
SM: The point being made, DB saying DEFRA an outlier

HH: p171 (C supp) Do you accept it was relevant whether DEFRA an outlier?
SM: Important to know if DEFRA correct in what they were doing, balancing, comms channel for both 'sides'. What other depts doing - [I think shrug]

HH: If other depts are refusing or not hosting SEEN -
AL: No evidence of refusing?
SM: I suggest, that's for DEFRA and its HR team

HH: You are being asked to respond to grv that largely consists of problem of SEEN having channel - see JH recommendations - surely it's relevant that other depts don't?

SM: no, what matters is whether DEFRA is acting correctly.
HH: You did not engage with DB evidence in final report but did in draft, p1860

HH: Para beginning "it is interesting to note" - that IX did not found any other depts had an active SEEN network, that HR seemed not to know, that they should look at it, you wrote those words?
SM: Yes

HH: Why did you remove from final?
SM: Because that's not what I was looking into. I didn't investigate other gov depts.

HH: After you got IX report you met with ST
SM: Yes
HH: There are mtg notes p2117, not actual minutes but notes.

Did the C know about SM initial draft?

This intervention is good because HH is trying to make SM 'emote' on the witness stand [or whatever it is] - ST was 'harmed', DB was 'appalled' 'were you upset?'..