Thread by @tribunaltweets

Good morning. This is the first morning session on day three of the employment tribunal of Samantha Tempest v DEFRA and the Rural Payments Agency. We expect to begin at 10am.

Tempest (the claimant or C) is claiming discrimination, harassment and/or victimisation on grounds of gender reassignment. Central to the claim is the Sex Equality and Equity Network in the Civil Service (SEEN or IP). SEEN has been granted right to intervene.

A reminder that our work is not a verbatim account or transcript of proceedings. We make our best efforts to report what is said and do so in good faith.

Our Substack page on the case contains all the previous sessions, and a full list of abbreviations
tribunaltweets.substack.com/p/tempest-vs-d…

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Abbreviations:
PQ – Anonymised claimant, no longer a party
ST/C – Samantha Tempest, Claimant
DEFRA/R1 – Department for Environment, Food and Rural Affairs, first Respondent
RPA/R2 – Rural Payments Agency, second Respondent
RS – First and second Respondents

SEEN/IP – Sex Equality and Equity Network – Civil Service
EW – Elspeth Duemmer Wrigley, co-chair of SEEN
NC – Naomi Cunningham, barrister for SEEN as Intervenor
J – Employment judge SD Robertson
P1 – Panel member 1
P2 – Panel member 2
AL – Alex Line, barrister for Rs

JRL – JR Levins, solicitors for SEEN
HH – Helen Hogben, barrister for claimant
AB – Anna Bond, solicitor for claimant
AM – Andreas Mueller
GC – gender critical or sex realist views
GI – gender identity

TW – transwoman, a man claiming the protected characteristic of gender assignment TM – transman, woman claiming the protected characteristic of gender assignment
INT – Intervenor
ETBB – Equal Treatment Bench Book
GRC – Gender recognition certificate
PC – Protected characteristic

GRA – PC of gender reassignment
DD – Direct discrimination
MLF – My learned friend
CA – Caroline Airs
ED – Emma Dunn
NB – Nicola Bettesworth
VE – Viva Engage
CM – Carly Manning
IAO – Information Asset Owners
NE – Natural England

OH – Occupational health
G – Grievance
GA – Grievance appeal
GI – Grievance investigation/investigator
SGI – Second grievance investigation
SGA – Second grievance appeal

We have been admitted to the court.
J Is anyone else puzzled as to why that other room is appearing on there?
AL Is that the observing room?
J Don't want remote observers to see that.
[to and fro in court room and feed has disappeared]
[WFTCHTJ]

We are back. Discussion of temperature in the room and air conditioning.
J We can adjust to a certain extent but have to contact eg Swindon for more control. If anyone is struggling, just say.
AL I'll do my best to keep an eye - can't see your pen but am doing my best. In

midst of X-exam can forget.
J I am refining my shorthand as I go...
NC Tribunal gave direction as to language used.[difficult to hear NC] Not asking for written reasons but asked to reduce direction so we know exactly what we are asked to do.

J There may be slips. People don't always think. You said c consequences. It wasn't a threat. It's a direction so we all knew at start what was expected. There will be slips but don't want to be delayed c this. Anxious to make sure everyone gives their best evidence

NC I'm not talking about slips
J I understand what you've asked for
NC Could I finish my point. Need to understand exact parameters for me and my witness. Is it restricted to pronouns or go further?
J I'll put it in writing so no doubt.
AL One clarification from yesterday. P135

AL Doc is draft of email EW intending to send. To p157, re post appeared after the draft. Comments made after that. Text has differences from draft. Second sentence LBGT diverse etc all enrich our org - EW included those words
C Yes
AL And penultimate paragraph which inc

hyperlinks. reads - happy to discuss re understanding no ill will towards other groups etc. Additional lang included helps
C I would have to disagree. T people not going to work to debate who they are. Come to work to work. Doesn't belong in civil service. Political.

Al Your position remains same despite changes
C Yes cos is about t people in the org and not appropriate
J Which version of post did you see at the time?
C I believe I saw both versions.
J There wasn't a copy of the original post in the bundle
AL That's my understanding.

AL NC spotted that. Thank you. To p 193. NC may deal with this when it's her opportunity.
AL I'm not sure it's the original when posted. NC may take a different view.
AL As HH said, it says edited on it.
J On p 194 is a comment on this on Monday
AL I understand difference is

last sentence.
NC/AL/J [discussion re the details/changes]
AL I'm not prepared to say this is the one but that's as far as I can put it.
J Could this be clarified. Niggling we don't know what was posted and when.
AL EW might be able to clarify eventually.
AL We all agree p157

AL is the reposting.
AL [to C] Can we turn to p 228. First pg of dispute resolution notification form - the first grievance you raised.
C yes
AL Discussed yesterday if in your mind you equate transphobia with GC. You say, this promoted anti-trans (gender critical ) views. So

clear you treat these synonymously.
C Not synonymously. Can be crossover.
AL Not a slip, if you've don't it twice.
C I agree I obviously thought that. Overlap.
AL In your mind a high degree of overlap
C In this context yes I have to agree.
J Yesterday we discussed

J use of transphobic
J Was there a distinction in your mind at the time between anti-trans and transphobic
C One is fear of and one is anti...
J What were you thinking at the time.
C It was four years ago
AL There was meeting led by Sarah Homer and you left meeting

knowing the view was that EW post hadn't crossed any lines, but it was the response.
C There is a different email from Carly Malling
AL By attending 22/9 meeting you understood Rs position on EW post and dissatisfied with that.
C yes and yes
[missed]
AL post didn't name you or sent

AL sent to you personally or misgender you.
C Not to me personally but frames TW as men and that is the message put across.

AL p230 You touch in grievance re implication - view gender is immutable automatically means re t people
C I ave caveats where might be okay in workplace, but implies t people are not who they say they are
AL That interpretation of EW post if you took it, is unreasonable one

AL She didn't talk c mental position of t people
C Didn't write that but if you say it it's contained [pause]
if you say that tw are not w because sex is immutable, gi does not exist. The inverse has to be that it says that tw are men. Like flipping around the everyone does/

doesn't have right to be offended point. It is absolutely saying that tw are not w.
AL p230 you refer to view that posts anti-muslim, for eg, not being acceptable.
AL You say that Forstater didn't mean gc people can talk about t people with immunity

C But by implication
AL You say not all gc views protected in law, just Forstater example in specific case
C I understand re Forstater it's capable of protection but people need to demonstrate sincerely hold beliefs for eg. Not all GC beliefs are same as may have been held

by Forstater.
AL Need to be clear. You don't say Forstater established GC okay in law as a whole
C It established GC beliefs capable of protection under law but Defra took it to mean gc all beliefs given protection, no questions asked.

AL R disagrees with interpretation of Forstater but Xexam not place to deal with that.
AL [to grievance investigation notes by Edd Parry] You were asking Defra to not allow any expression of gc in the workplace.
C I accept may be necessary for policy
J I don't think

J that answers the question
AL Notes say that you are asking Defra to not allow any expression of gc views in workplace.
C Apart from the caveats I've said, don't think GC expression is conductive in the workplace.

AL Of any kind.
C Of any kind.
J That is what you were saying at the time.
C Yes
AL You didn't make a distinction at the time.
C Says there that I am talking about statements and posts.
AL What you seek from tribunal today is what you were asking then. Disbanding of SEEN

AL network etc. Continue to ask that of Defra.
C I acknowledge that that is what is written there. Although I do accept policy decisions have to be taken and it wouldn't be feasible to do that while prohibited from talking about topic. But I am concerned with staff members

talking to staff members.
J What kind of policy
C Discussions re t incl in bathrooms, changing rooms, following FWS. I can see may need to be decisions around that. But sex/gender of individual usually in Defra has no bearing.
AL So can you then see why one can't

say eg SEEN network can't exist, as may be the network to feed into decisions like that.
C We have guidance that says tw can use the women's. Policy that hinges on views of a staff network wouldn't make sense.
AL Not saying policy hinges on SEEN views. But would help

feeding in views.
C Can get viewpoints from other networks. Defra can source info to inform its decision. Network is creating harassment of t employees in work place - to continue negatives that come with it wouldn't make sense.
AL On to cross-government SEEN.

AL Re email c network launch, approved and going live in mid-November 2023.
C Launched formally mid-Nov yes.
AL sorry - correction - was Nov 2022
[all agree]
AL To be established cross - government SEEN needed approval Cabinet Office inclusive practice team
C I don't know what

team do
AL Was decision by Cab office - Defra didn't have role to play in its establishment.
C In its establishment, yes
C I think constitution was established in [ they discuss different months]
AL Section on guiding principles- rooted in these is the EA

C I see it does mention the Equalities Act
AL Reads c PSED, by encouraging diverse views and tolerant open dialogue. Objectives of SEEN presented - clear they didn't seek to eradicate t people from work place

C don't agree Can pick up they wanted Civil Service based around sex-based rights, that sex is binary and immutable. These statement at face value would erase t people.
Various views - opening up t people to problems. Would cause t people ultimately to fade away from workplace.

C If you take SEEN principles - you would lose language, pronouns, gi. Without those t people would no longer exist in workplace. Not true they are looking to encourage good relations and diversity of voices - is all geared towards removing that diversity.

AL Your position is in contrast to what they are stating here. They say they respect open dialogue with people who disagree with them, like you. You say anyone who doesn't agree with you should not express their opinions at all.

C Not fair characterisation. Don't want my existence to be debated in the workplace and not to be removed from the workplace.
It's a fair position to take and I would take it on numerous topics if I felt someone's position and who they are is being systemically erased.

AL [reads c how C found out about network.]
C Found out via Sarah Homer
AL No date, but posting of doc 8/11/22
C no reason to disagree
AL Comment function had been turned off
C think that's correct
AL Not an invitation for comments - just an announcement

C Comments were turned off - didn't read any more into it than that.
AL [reads c C posting as response to EW's notice]
NC Could we clarify which doc is being referred to.
J No criticism but we have being taken to paragraphs/sentences but don't know what doc is. Would help.

AL Doc 18/11 - is as much as I can assist.
J An email?
AL I was just taking C to this...small point, p440 - the C's post had been seen by 18,000+ people and received 600+ likes.
J What post
AL We're about to look at it
J / AL [altercation]
J I'm telling you, please tell us

which post it is.
AL p 284. A number of likes to the post - seen by all these people and all the likes is your post.
C Yes
AL And this is your response to EW's post on p401
C Prompted by that and previous posts. But was response to the business and not to Elspeth.

AL Yesterday you said wouldn't see need for you personally to talk c your t status in workplace. But you are doing that here.
C Yes. Didn't have choice. Was submitting complaints by being told that senior managers were allowing all this. Was v upset and posted.

AL In this post you call on others to get involved
C Wanting people to show their strength of feeling to Defra. Clear Defra wasn't listening to t people and were ignoring our concerns. SEEN was reaching out to senior leaders.

I couldn't do that - massive power imbalance here. In heat of moment I thought if Defra saw the depth of feeling among colleagues they might give consideration to the wiseness of their actions.

AL You could have written private letter to someone senior.
C These were the actions I took at the time. May not do so today in more level-headed time.
AL Do you accept our message caused a vitriolic response
C Vitriolic in what way.
AL Take you to a few egs.

AL Comment by Emma Appleby: I stand by you ST
Caroline - surely network creates atmosphere of hate isn't this illegal
Someone else - network shouldn't be allowed to exist
Someone - denying existence and punching down.

AL Did your post cause vitriolic response
C They are responsible for what they wrote. I was calling out Defra. Not asking them to be nasty to EW
AL Accept they were nasty
C Further than I would have gone

AL And responses to your post
C Yes. But to Defra. I'm not referring to EW in this post.
AL This was response you wanted to the post
C You can't draw that conclusion. I wanted pressure on Defra. My only post - I don't go around doing things like this.

C I was submitting complaints but nothing was happening - I was being told this was acceptable.
AL To AM doc - referring scary t person, referring to yourself?
C Yes
AL AM Says supports everyone's right to come to work without harassment /having existence in question

AL [asks tribunal/C to read docs]
AL Do you accept this email is a defensive response to your post and the posts in response to it.
C He's posting a defence of his views, agree in that respect.
J Time for a break?
AL Five mins please
AL there was a strong response to AM

C That's not me, that's my wife.
AL Sorry - saw surname. She shares similar view
C She obviously wants to protect me, yes
AL [to doc] This is a long post where you see AM makes a comment: Internet doesn't forget, neither do I

AL to email from CA 15/11. Same words here as in AM's post. That post was removed though mod and AM's line manager contacted about it. Rs took appropriate action re that post.
C Interesting points to be made about this.
AL/J Can we find the place
C Agreed post was moderated

C but that's cos of strong words at end - straw man etc.
I had a post taken down for using those words but they are not mentioned in this. Without end words this post would have been left up but my post with similar words was taken down. Mod not even.This post is not in mod log.

AL We can see email was moderated and removed
C Yes but reasons not even
AL You may feel other things in post were objectionable, but fact is post was removed in its entirety.
C Yes
AL You objected to AM using term straw man and misinformation
C Yes, same words I used

AL [to 510] Your post re making straw man arguments.
C Yes, my post deleted purely on that basis. Without threat at end AM post would have stayed up. Simply being disrespectful is not meeting threshold.
J Fifteen-minute break to 11.45. [Usual guidance to C]

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