Morning I have 2 questions. Can Dr Upton face more consequences of his alleged note tampering and can all the computers and phones be made to be handed in and be properly forensically inspected. I am a health care professional and have found your commentary fascinating although I was a bit late to the party.
I would really like to know - having listened to and analysed all the evidence in such detail - what your gut feeling is on this one, Michael? Do you think there is any chance that the decision may not go Peggie's way or do you feel confident?
Looking forward to 25th August. Can you explain what (if any) enforcement powers an employment tribunal has? I know Judge Kemp can only rule on the narrow issues in the case before the panel, but as regards the failings in industrial compliance, disclosure non-compliance and individual witness behaviours can he do/recommend any external action or referrals to regulators?
This was going to my question too. Surely the judge would have powers to enforce a punishment if both NHS Fife and Upton have been guilty of ignoring a court order and tampering with evidence
Could you please explain more about the submissions phase? E.g., What sort of information is presented? Do they get to respond to the other side's submissions? How much importance is attached to the submissions compared with the evidence given and cross examined?
If Upton is found guilty of sexual harassment, what does that mean for other transwomen that continue to use women’s single sex spaces? Can individuals be prosecuted? I’m thinking of circumstances like RMW at the WESC hearing in parliament
re Jane Russell KC's re examination of Sandie Peggie concerning the WhatsApp messages. I understand that attacking the claimant's character was the point of the exercise, but was it taken too far, and is there any prospect of a rebuke by the Bar Standards Council?
An article from the Herald today on the subject of dark and disturbing humour.
Hi Michael. I’m wondering if you think JR is trying to mitigate the damage to NHS Fife by asking the Forensic IT expert if he thought DU was lying? Is DU being set up as collateral damage and is JR allowed to pit one of her clients against the other in this way?
In other words, JR is representing both NHS Fife and DU. If one of those parties becomes a problem for the other in the case, how is JR supposed to proceed?
I wondered this too, particularly with regards to the undisputed fact that Dr Upton was using the changing room with the express approval of his employer. Are employees expected to have a working knowledge of employment/equality law, or can it be a defence that Beth Upton was relying in good faith on bad instruction/advice from NHS Fife? In which case, could the tribunal find NHS Fife liable on the sexual harassment charge for placing a man in the women's changing room, but Dr Upton not liable for being the man in the women's changing room?
Hi Michael - one query I have is in relation to the appeal process and what that could look like for either party and whether it's only on points of law or a full reconsideration of all the evidence?
Excellent! Are you also going to go through the last bits of evidence, not yet covered, separately? If not, my question is: what did you think of all the rest of the evidence? (Especially, I'd like to hear what you think of JR's asking SP who was funding her case and whether she'd asked her Counsel to do [whatever], which to me seemed extraordinary.)
Yes. The question of funding has been raised in a few of our cases. I remember one barrister arguing that because we had crowd funded the case that the claimant shouldn’t get costs because they were not personally out of pocket. I think the issue was ducked rather than answered
Hi Michael, my question is: is it open to the tribunal to find that NHS Fife harassed or victimised Sandie Peggie, but that Dr Upton did not (because Upton had permission to use the changing room)? Thanks for your insightful analysis, it has been so informative!
I'm also interested in this. Also, what is the claim against Upton based on? Is it just his presence in the female changing room or are they also relying on his subsequent conduct, altering supposedly contemporaneous notes etc.?
I think this is a really interesting concept. It’s not as if Dr Upton just rocked up and swept into the female changing area, he either asked directly to use it or was asked what his personal preference was and was given permission from his line manager, so he can argue he was not breaking any corporate rules so not personally liable for any harm.
Will look forward to it. But a quick Q now if you dont mind. Are the legal submissions usually held in private? Do we need to apply for remote access to this final stage if not? I will put forward other Q relating directing to the proceedings. Lovely to see you back too, a restrained hooray 🙌
Hello , I echo what the others have said and have been fascinated by your commentary Thankyou again . My question is this . Given that we have recently had the Supreme Court ruling on sex why isn’t this the end of the matter . ? Maybe I am over simplifying this but isn’t this an obvious one that single sex spaces means biological sex as was always the case . Dr Upton is a biological man in a woman’s changing room
So why hasn’t the judge thrown it out already or can rule immediately in favour of Sandra Peggie ?
Jane is going to argue (unsuccessfully) that the SC ruling only applies to the Representation on Public Boards Act . This will be the first time the ruling has been tested in a live case.
Thank you so much for these podcasts. I have really enjoyed listening to them and it has really helped me to follow what was posted on eg Tribunal Tweets about the tribunal.
I would really like to know about which parts of the evidence you think will be used to support which claims against NHS Fife / Dr Upton. And a bit of an understanding about how those claims are interconnected - eg if the claim of sexual harassment against Dr U is successful/unsuccessful, how does this affect the outcomes of the other claims?
This is possibly too niche a question, but I am also interested in the characterisation of the changing room incident as a protected disclosure. Is there much precedent for this? And how important is this to the case as a whole? My totally non-expert understanding of protected disclosure is that this is usually something like "I witnessed Colleague X behaving in a negligent/abusive manner on these occasions" in a whistleblowing context? Why/how is telling Dr U not to be in the female changing room equivalent?
Am I right in thinking that there were no practical consequences within the Tribunal for that outrageous statement from NHS Fife? Do you think it possible that the judge admonished their legal team within a private session? I am just gobsmacked that one side in a tribunal could get away with such an action!
As an admirer of both Naomi and Charlotte and their art of cross examination in particular… I’d be interested to know if you think Jane Russell provided a decent representation to her clients, or if she was too wedded to the ideology to provide the best defence? There were times when I had my head in my hands!
Morning I have 2 questions. Can Dr Upton face more consequences of his alleged note tampering and can all the computers and phones be made to be handed in and be properly forensically inspected. I am a health care professional and have found your commentary fascinating although I was a bit late to the party.
I have a strong feeling that Upton's phone may 'accidentally' get lost (if it hasn't happened already).
I think you could be right
I would really like to know - having listened to and analysed all the evidence in such detail - what your gut feeling is on this one, Michael? Do you think there is any chance that the decision may not go Peggie's way or do you feel confident?
P.S. Hope you're having a good break.
Looking forward to 25th August. Can you explain what (if any) enforcement powers an employment tribunal has? I know Judge Kemp can only rule on the narrow issues in the case before the panel, but as regards the failings in industrial compliance, disclosure non-compliance and individual witness behaviours can he do/recommend any external action or referrals to regulators?
This was going to my question too. Surely the judge would have powers to enforce a punishment if both NHS Fife and Upton have been guilty of ignoring a court order and tampering with evidence
Or perjury?
Could you please explain more about the submissions phase? E.g., What sort of information is presented? Do they get to respond to the other side's submissions? How much importance is attached to the submissions compared with the evidence given and cross examined?
So looking forward to this session.
If Upton is found guilty of sexual harassment, what does that mean for other transwomen that continue to use women’s single sex spaces? Can individuals be prosecuted? I’m thinking of circumstances like RMW at the WESC hearing in parliament
.
After the SC ruling they shouldn’t be using them NOW!
re Jane Russell KC's re examination of Sandie Peggie concerning the WhatsApp messages. I understand that attacking the claimant's character was the point of the exercise, but was it taken too far, and is there any prospect of a rebuke by the Bar Standards Council?
An article from the Herald today on the subject of dark and disturbing humour.
https://archive.ph/Ypj23
Hi Michael. I’m wondering if you think JR is trying to mitigate the damage to NHS Fife by asking the Forensic IT expert if he thought DU was lying? Is DU being set up as collateral damage and is JR allowed to pit one of her clients against the other in this way?
Thanks for all you do. Good luck in your new job!
In other words, JR is representing both NHS Fife and DU. If one of those parties becomes a problem for the other in the case, how is JR supposed to proceed?
I wondered this too, particularly with regards to the undisputed fact that Dr Upton was using the changing room with the express approval of his employer. Are employees expected to have a working knowledge of employment/equality law, or can it be a defence that Beth Upton was relying in good faith on bad instruction/advice from NHS Fife? In which case, could the tribunal find NHS Fife liable on the sexual harassment charge for placing a man in the women's changing room, but Dr Upton not liable for being the man in the women's changing room?
Good question
Hi Michael - one query I have is in relation to the appeal process and what that could look like for either party and whether it's only on points of law or a full reconsideration of all the evidence?
Excellent! Are you also going to go through the last bits of evidence, not yet covered, separately? If not, my question is: what did you think of all the rest of the evidence? (Especially, I'd like to hear what you think of JR's asking SP who was funding her case and whether she'd asked her Counsel to do [whatever], which to me seemed extraordinary.)
Yes, I’m interested in hearing Michael’s thoughts on SP’s afternoons evidence.
Yes. The question of funding has been raised in a few of our cases. I remember one barrister arguing that because we had crowd funded the case that the claimant shouldn’t get costs because they were not personally out of pocket. I think the issue was ducked rather than answered
Hi Michael, my question is: is it open to the tribunal to find that NHS Fife harassed or victimised Sandie Peggie, but that Dr Upton did not (because Upton had permission to use the changing room)? Thanks for your insightful analysis, it has been so informative!
I'm also interested in this. Also, what is the claim against Upton based on? Is it just his presence in the female changing room or are they also relying on his subsequent conduct, altering supposedly contemporaneous notes etc.?
I think this is a really interesting concept. It’s not as if Dr Upton just rocked up and swept into the female changing area, he either asked directly to use it or was asked what his personal preference was and was given permission from his line manager, so he can argue he was not breaking any corporate rules so not personally liable for any harm.
Will look forward to it. But a quick Q now if you dont mind. Are the legal submissions usually held in private? Do we need to apply for remote access to this final stage if not? I will put forward other Q relating directing to the proceedings. Lovely to see you back too, a restrained hooray 🙌
I’ve had confirmation that my online observer access will still be valid for the final submissions.
Hello , I echo what the others have said and have been fascinated by your commentary Thankyou again . My question is this . Given that we have recently had the Supreme Court ruling on sex why isn’t this the end of the matter . ? Maybe I am over simplifying this but isn’t this an obvious one that single sex spaces means biological sex as was always the case . Dr Upton is a biological man in a woman’s changing room
So why hasn’t the judge thrown it out already or can rule immediately in favour of Sandra Peggie ?
Thankyou
Jane is going to argue (unsuccessfully) that the SC ruling only applies to the Representation on Public Boards Act . This will be the first time the ruling has been tested in a live case.
I think JR ran the same sort of argument (limiting the impact of FWS) in *Haynes v The English Blackball Pool Association* earlier this year and lost.
I can’t think of a case where she’s won!
Hi Michael,
Thank you so much for these podcasts. I have really enjoyed listening to them and it has really helped me to follow what was posted on eg Tribunal Tweets about the tribunal.
I would really like to know about which parts of the evidence you think will be used to support which claims against NHS Fife / Dr Upton. And a bit of an understanding about how those claims are interconnected - eg if the claim of sexual harassment against Dr U is successful/unsuccessful, how does this affect the outcomes of the other claims?
This is possibly too niche a question, but I am also interested in the characterisation of the changing room incident as a protected disclosure. Is there much precedent for this? And how important is this to the case as a whole? My totally non-expert understanding of protected disclosure is that this is usually something like "I witnessed Colleague X behaving in a negligent/abusive manner on these occasions" in a whistleblowing context? Why/how is telling Dr U not to be in the female changing room equivalent?
Thank you again for these great analyses!
Am I right in thinking that there were no practical consequences within the Tribunal for that outrageous statement from NHS Fife? Do you think it possible that the judge admonished their legal team within a private session? I am just gobsmacked that one side in a tribunal could get away with such an action!
As an admirer of both Naomi and Charlotte and their art of cross examination in particular… I’d be interested to know if you think Jane Russell provided a decent representation to her clients, or if she was too wedded to the ideology to provide the best defence? There were times when I had my head in my hands!
How lovely to hear from you - cannot wait for the 25th.