Thread by @tribunaltweets

Good afternoon. This is day 3 of the employment tribunal Samantha Tempest v DEFRA & RPA. This morning's coverage is

https://x.com/tribunaltweets/status/2070425436677402758

Our full coverage of the case can be found on our Substack tribunaltweets.substack.com/p/tempest-vs-d…

The court is at present on lunch break, and will resume at 2pm. Alexander Line (AL) barrister for Respondents DEFRA & RPA will continue his cross-examination of Samantha Tempest (ST) the Claimant.

[We resume]

[Court discussing session timings I think]

AL: Some Qs re lanyards. p339. Post says - lots of trans-ally merch available inc lanyards. Do you accept that there were such materials in the workplace?
ST: Yes

AL: p287. Post with "100% trans ally" graphic. That sort of thing?
ST: That's just a graphic
AL: The colours indicate 'trans ally'?
ST: Yes could do

AL: p984 Email from a JMcK - uses the same 'trans ally' badge as an email sign-ff?
ST: Yes
AL: And ppl wore 'trans ally' badges at work?
ST: [not clear]
AL: T-shirts?
ST: Haven't seen
AL: Lanyards?
ST [can't hear]

AL: You mention rainbow lanyards, do you know of any others?
ST: Can't say
AL: p866 - Email 30/5/23 from Caroline A to Nicola B - says no incidents known concerning SEEN lanyards.
ST: No *recorded* incidents I agree. Feels like it wasn't being taken seriously

AL: p872, internal doc, re lanyards it says "only has name and logo" - you accept that was all they had?
ST: Yes that was the design but as I keep saying, there is all the other stuff behind the name

AL: [ref] says CS has for a long time allowed networks to have lanyards, badges etc - so SEEN is just doing what other networks do?
ST: [kind of agrees]
AL: SEEN was gov wide, no DEFRA funding?
ST: I think they applied for some but didn't take it

AL: p1092 - post from Andreas Mueller, says it's on SEEN network, 26/7/2023, refers to SEEN being officially recognised as a DEFRA diversity network.
ST: Yes
AL: p1267 - announcement re the same thing, this time on DEFRA intranet. Has 3 pages of detail re SEEN values and beliefs.

AL: Then at p1268 - v similar text to the SEEN constitution we looked at earlier - commitment to PSED and respectful dialogue.
AL: Then first response 21/11/2023 - so presumably that was date of the second notice.
AL: Which of the two did you first see, re existence of DEFRA SEEN?

ST: I think I saw both - the first one I was still in work, but I think on sick leave when second came out in November.
AL: You started sick leave end of July?
ST: Yes

AL: To have seen the post AM wrote, you would have had to access the SEEN network?
ST: Unless it was still public at that time
AL: Yes.

AL: p1270 - this is response to the intranet post from a Finn C - says "this article" - presumably the one at 1267 [reads - comparing religious beliefs / gay marriage to gender-critical / trans - says, starting to see that can co-exist in good faith]

AL: Apologies for reading it all out!
AL: My point is - not all trans colleagues shared your views of SEEN?
ST: Be amazed if all shared, this person is trying to see all side, later in this convo I posted my views that trans-excluding, this person responded to me too

ST: So yes this person is trying to see all sides but that doesn't mean is endorsing SEEN. Not all trans ppl have same views on everything.

AL: Do you accept that not all trans ppl would agree with you about the existence of SEEN?
ST: Have seen a couple of surveys asking that sort of question, and it's not 100% of ppl that find gender critical expression offensive the great majority do.

ST: If that person looked at this bundle at all the things have been said, I can't believe they would still think SEEN is in good faith.

AL: You mention a:Gender survey - I'm going to be asking your witness about that so will leave it there?
ST: OK

AL: Do you accept that DEFRA is not the only place to have a SEEN group?
ST: Don't know of any others
AL: EDM says she understands there are 4
ST: Where?
AL: You would have to ask her
ST: In that case I can't comment, as I don't know

AL: Would like to look at claimant additional bundle
ST: Don't think I have it?
[It is being located]

[discussion - it may be that only an electronic version has been lodged - C needs a hard copy - ppl are checking this]

J: How many pages will you refer to?
AL: At this point about 6 pages. If better for tribunal I can save this Q for later?
J: That would be best
AL: Will make a note to come back to this.

AL: p985 - your second grievance. 19/6/2023, grievance itself starts on the next page. If we look at its 2nd page, the crux is that you had won on appeal and that key recommendation should have been implemented
ST: Yes that's my understanding of grievance process.

AL: Further down you that on 6/4 DEFRA had said they could not accept the recommendation - we've discussed earlier - and then on p988 you provide what you say are examples of further issues you've experienced since the recommendations?
ST: Yes

AL: So you refer to a complaint you'd made on 3/5 - from an article?
ST: Yes
AL: You raise issue of SEEN lanyards, we've discussed.

AL: You go on to say that SEEN members have referred to "What is a woman" Matt Walsh. And then you refer to posts - one by EDM regarding the EA2010 protected characteristics.
ST: Yes

AL: Your grievance says all of these are specific instances of harassment
ST: Yes

AL: p990 your requested outcome includes, DEFRA to carry out the original recommendations *in full*?
ST: Yes
AL: Steve Moore appointed as decision maker?
ST: Eventually yes

AL: Carl Harman as investigator?
ST: Yes

AL: p1387 his report 19/2/2024
ST: Yes
AL: He spoke to DB, CA and NB?
ST: Yes
AL: And yourself
ST: yes

AL: p1389 "Summary of evidence" - includes that DEFRA no longer provides open platform for GC belief - the migration in April 2023
ST: Have to disagree. Emails in the bundle indicate, group was private originally but kept being turned back to public.

AL: Report finds SEEN group private from October 2023
ST: Yes
AL: p1390 bullet re evidence - says NB was not provided with notes and was surprised by some of the recommendations, as appeared to be breach of EA2010?

ST: It says *perceived*, not that they would have been - I can agree to that

AL: p1393 "Summary of findings" - says evidence supports complaint at time it was made, and that [a policy?] may have been breached - I stress "may"?
ST: That's what he says

AL: Goes on to say that the issues have been resolved by the network migration?
ST: As I say, many instances where SEEN has changed its settings back to public, so, no, recurrence *not* prevented, posts still going out. DEFRA can't stop the setting being changed.

ST: Can refer you to the emails?
AL: The evidence we looked at was that SEEN was written to in October, and EDM evidence is that settings were *not* changed back.
ST: Not as far as I know, but that doesn't mean they weren't

AL: p1393 - re the posts you had complained about - he provides reasons why he does not agree they are harassments?
ST: I had returned to work at this point, was under instruction to avoid situations where I'd be harassed - burden was on me - so it's unfair to ask me for evidence

J: You had provided those two examples?
ST: I provided what I knew about, but there could be loads more examples, because I'm deliberately limiting my exposure.
J: Are you saying in your grievance there were others?
ST: in grievance only referred to what I knew.

ST: Wd have expected full investigation to see if there were any others, but nobody looked into it.

AL: The SEEN group was private from 11/10 onwards, so if you wanted to find the information you speculate existed, you would have had to join SEEN?
ST: Yes

AL: And that was because respondent had taken action?
ST: Well if I *had* going to look I would have been told I was trying to police the network.

J: You accept you would have had to join the network to see posts? Are you saying DEFRA told you not to join it?
ST: Had been told to make efforts not look for offensive content, bcs they cd/had set up network so I didn't need to see it. And comms principles are, don't police other gorups

AL: p1322 - stress work risk assessment Jan 2024
ST: Yes
AL: mentions adjustments made - that removing you from groups it would let you avoid notifications. R did take steps to remove you from groups you did not want to see.

AL: You could have rejoined if you wanted to? To police a network?
ST: Not to police - comms principles. But to note - I *still* get Viva Engage notifications, inc some from Andreas bcs it thinks I engage with his content.

ST: ANd SEEN posts are not necessarily in their own group - so I might see them - so, convos in I think it wsa menopause / breastfeeding groups - nothing to do with SEEN but they post - and I still get notifications, I haven't been removed form everything, which is astounding.

AL: The examples of claimed harassment in 2nd grievance - those were the only ones you had. Bcs not being exposed to content you wd find offensive?
ST: I was off work bcs of DEFRA inability to keep harmful content away. I was at home, not my choice, I didn't make the situation.

AL: You were not exposed to any SEEN content, to be clear
ST: No I wasn't, because not at work.

J: You've accepted you didn't see content because off work for about 6 months?
ST: Yes and not exposed to work systems

AL: p1434 - letter 3/4/24 Steve Moore's decision letter. Decision is not to uphold grievance
ST: Yes
AL: Refers to finding that platform was closed, as per policies, same as Mr Hardman found.

ST: re per policies, I have lots of emails about it not being, and he didn't investigate further
AL: p1436 SM goes into some detail why he doesn't accept your complaint - says, posts dealt with at the time, that changes to Yammer made

AL: He also says the changes made to Viva Engage have had great success in reducing complaints - c100 to 1 or 2 per month
ST: Reduction in complaint is bcs trans ppl have realised DEFRA is not going to take action, and will punish them for what they write instead

ST: If you look at moderation log, huge imbalance, posts by trans ppl moderated compared to GC members. This is not a useful paragraph

ST: What's happening is that trans ppl are being punished, emails from line managers, not surprised they don't complain

AL: Isn't it more likely that ppl simply aren't seeing things they strongly disagree with, bcs private?
ST: Well ppl are forbidden to join the group if they don't agree with it. And, it's the harassers that do the moderating, judge and jury, doesn't make sense

J: You do need to really answer the question you are asked - AL cd you ask again
AL: Re reduction of complaints - isn't the obvious explanation that, ppl are simply not being exposed to what they dislike, bcs private groups?

ST: Perhaps partially- yes, SEEN posts not visible - but, SEEN do post on other groups too.

AL: p1438 - SM has set out detailed findings, then summarises that s/o expressing GC beliefs is not wrong - that there are many groups that other ppl would disagree with - cites complaint numbers as evidence re success of closed groups -

AL: he notes that if policies etc are breached that would need looking at, but has not happened here.
ST: That is blaming me for being off sick and not able to get more evidence, he should have gone to look for it, would not have reached that conclusion if he had

AL: It's not reasonable for you complain that when you make specific allegations which SM *did* address, he should instead have done a months-long open-ended investigation. That's not reasonable.

ST: Disagree
J: What do you say he should have done? He found, no discriminatory posts evidenced.
ST: He should have gone to look for them.

AL: You appeal - goes to [missed the name]. p1452 is that outcome letter. He had met you to discuss?
ST: Yes we met

AL: In WS he says, he was conducting the review for the appeal?
ST: That depends how he decided to conduct it.
AL: I can take you to the policy - it does say, an appeal should be a review. p1667 is the policy

AL: para 65 - sets out how to conduct, so as to decide whether the original decision is reasonable. Are you suggesting he should have taken a different approach?
ST: Will just read this
AL: Yes

ST: Can you repeat the Q?
AL: Do you suggest that he should have done anything beyond a review?
ST: Given points I raised that the report didn't seem to match the letter, and that he hadn't investigated for other content, I think a rehearing wd have been appropriate, policy allows for that

AL: You had not asked for re-hearing though?
ST: To be honest I don't think I realised there was a distinction - wd have asked for it if I had

AL p1452 the decision letter. He addresses the points you had raised - first is delays, he sets out reasons, does not accept the period in the circs was unreasonable.
ST: Yes but I think 10 month grievance process is exceptional

AL: Then he comes to "fully implement the recommendations", against give reasons and does not uphold. I suggest to you that both these are adequate for a review-based appeal?

ST: Yes but he had made it quite clear he had no interest in re-hearing, only in reviewing, which I don't was an adequate way to do an appeal which was saying no extra investigation done etc, he was not interested.

AL: I thought you said you had not understood difference re re-hearing, you seem now to be saying you were actually asking for one?
ST: I thought the appeal would look at everything that was raised, didn't realise it wouldn't

ST: My point is given what I was saying, he should have known to do a re-hearing
J: He told you he was not interested in doing a re-hearing, did you ask him to?
ST: Was not aware -
J: Did you ask him?
ST: I raised that more investigation needed

AL: You didn't bring new evidence to the appeal. You had none beyond the original in grievance. So you hadn't for example gone into the SEEN group to look for more?
ST: Wd have been breach of comms principles so I wouldn't do that. Also, effect on my well-being.

ST: Am raising here to be heard, doesn't mean I want to go and look.

AL: This is a good point to break, if court wishes?

J: We will take a ten minute break - I expect the clerk will come to fetch you but make sure to come back just in case not
[BREAK]

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