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 desperately trying to herd ST into the enclosure of her choosing.... but I don't think she's going to be able to.

From TT:

you say all of these took place before July 2023 and no further posts were found after that, you're swerving the issue, rather than making a finding that these posts were harassing or offensive SD I was assessing the effectiveness of the controls, I have examples up to Aug 2023, and I asked for additional examples and there were none.
HH will come back to that, let's go back to C's WS, page 22 of ST statement, para 65, ongoing SEEN issues.
SD 65? yes
HH ST describes posts in a,b, c and d - describes impact of posts, framing existence as deception

From TT:

HH coworkers forced to lie to interact with me, how can I believe they have my best interests at heart, you didn't engage with those concerns.
SD I was trying to balance ST view and feelings and the orgs response.
HH will make the point, you had accepted the effecct in your draft letter

SD we've covered my draft letter but we could go over it again if you like
HH back to main hearing bundle, 989.
SD bear with me

HH this is the orginal complaint and the 1st form she presents, a post by EDW, the following aren't pcs, do you see that
SD yes

ST=SM?
and
SD=SM in TT?

Somebody switched all the keys around on keyboards over lunch😃

Does AL get to question SM?

From TT:

HH in 2nd form, includes original post plus a later post after corrected do you see that

SD yes
HH after talks about EHRC guidance, and in previous form talks about case law, in ST view statement is factually incorrect. At the very least this post seeks to minimise the protection afforded to trans people under the EA

SD haven't fully read it yet
HH take a moment to read it
SD what was the q
HH seeks to minimise protection available to trans people
SD I can't say, I'm not an expert in the technicalities of equality law

SD we've covered my draft letter but we could go over it again if you like

I think SM has had enough of going round in circles.

SD haven't fully read it yet HH take a moment to read it
SD what was the q
HH seeks to minimise protection available to trans people
SD I can't say, I'm not an expert in the technicalities of equality law

That looks a bit tetchy!

It's an interesting angle, though. If it is unavoidable to have to trawl through a lot of groups to be able to go back and find something that you know is (or was) 'on there', then it could be something that really feeds spiralling and overthinking in the way that anything unwritten doesn't always have the same power to do, as it is a question of 'in the moment' vs 'on record, referrable-back-to.' And how many people would be able to see or hear it (once only or because of having to trawl?) determined by the forum it's in.

From TT:

HH did you consider this in your decision
SD I've said before, I didn't interrogate the posts, I was looking at the process
AL - I think this is pursuing the same point
J - you are examining the same issue over and over again,
HH I need to put these points to the witness

J I understand why this in happening, we can't allow you the time to make these points again and again using different language
HH when you didn't uphold the g/x you were aware that C had presented a claim in ET
SD I don't think I was, C maybe had mentioned might take that

J - you are examining the same issue over and over again,

J I understand why this in happening, we can't allow you the time to make these points again and again using different language

Yes, now move on.....

Everyone in the room has had enough

J I understand why this in happening, we can't allow you the time to make these points again and again using different language

The judge is being ecumenical with his 'move things along, will you?' Not just NC

SM's written witness statement stands as his evidence in chief so AL doesn't need to question/examine him. After HH has finished her cross exam, AL may ask him a few questions in re-examination if he thinks there are any issues that arose in cross examination that need clarifying.

From TT:

action
HH might have mentioned in meeting with you
SD might have mentioned to Karl,
J what page number
HH around 217, where it starts [looking for specific reference]
HH bear with me please while I find it

HH look at 2121 towards the top, a q about why trans staff not involved, mentions employment tribunal C got upset, you were aware that ET was a possibility
SD I generally wasn't aware it was that potentially significant
HH did you speak to HR about it
SD I was not aware of it

From TT:

I didn't even know I was a claimant for this,
HH a witness
SD - not aware until asked for WS
HH back to posts being visible,
SD I investigated what the situation was, and what it had been since the time of the g/x

HH at 2117, section 6, we looked at this, a couple of add'l points, ST had said could still points made in other networks, could still see points made in menopause group
SD ST mentioned but didn't give me any evidence
HH did you ask about it
SD I asked for evidence, none was give
HH do you accept that ST was off work doing this period

Why the F* was ST in a menopause group?

How did the C see a draft? I’ve been involved in a few grievances at different points sometimes investigating and sometimes appeal and the complainant didn’t see drafts, they got the completed response, typically working notes were destroyed when no longer required.

TBF to the claimant seeing a draft response written entirely from their perspective would raise questions about fairness when actual response goes the other way. If they were sent that draft response as part of the grievance it’s a failure of process. If it came as part of a SAR response it raises some interesting points around how long working notes should be retained.

Apologies if this has all been noted earlier I’ve tried to read through everything on these threads but it’s hard to keep track of all aspects

From TT:

SD I accept that ST was off on sick leave, there were many other people interacting with VIVA engage, and could have requested moderation
HH did ST explain that posts from people had interacted with, were pushed into feed
SD mentioned, no evidence provided

HH ST said she was still seeing some posts
SD mentioned but no evidence provided
HH you accepted in your 1st draft, see 3rd para, encouraging that changes provided more ability to control what is being seen
SD yes
HH but your conclusions were that some posts were still visible

SD but the only thing that was visible was links to SEEN content. In my view, no reasonable person carrying out their work, would see thse types of posts unless they were going into places seeking to be offended.

WHAM!

I think ST made a Subject Access Request so got the draft that way.

From TT:

SD but the only thing that was visible was links to SEEN content. In my view, no reasonable person carrying out their work, would see thse types of posts unless they were going into places seeking to be offended.

HH your initial conclusion that posts promoting network why you recommended that other routes for comms of controversial messaging should be reviewed
SD we repeat ourselves on the draft document
HH pretty definite statements and recommendations
SD I have answered that, based on the feeling, the emotive etc. Even it refers to links

SD but the only thing that was visible was links to SEEN content. In my view, no reasonable person carrying out their work, would see thse types of posts unless they were going into places seeking to be offended.

About time someone said it out loud.

From TT:

there's nothing wrong with a link to a SEEN sharepoint. That's why the draft didn't stand up
HH that recommendation to look at other routes, would have been a more proportionate approach, balancing interests of ST and SEEN members
SD my decision was proportionate
HH your draft report....

J we need to stop this now, you have asked him about this draft report, he's giving you the same answer, you are putting this to him the exact same point. We do not have the time to go on in this hearing making the same point over and over again.

From TT:

HH I am going to rely on some of these points in submissions and I need to put them to the witness
J will you take instructions, we need to move on
HH why didn't you tell DH about your draft report
SD not relevant
HH its not open and transparent to not tell decision maker about your earlier views

SD I had dismissed the draft, I did not think it was important to David's decision
HH it avoids proper scrutiny of your decision doesn't it
SD [no audible response]
HH sent draft to Emma Canning, response at 1856