Mr K McBride v Scottish Ministers: 4102841/2023

EMPLOYMENT TRIBUNALS (SCOTLAND) 5 Case No: 4102841/2023 Held in Glasgow on 17 – 21 June 2024 Deliberations on 21 June, 1 and 3 July 2024 10 Employment Judge D Hoey Members P McColl and W Muir Mr K McBride Claimant In Person 15 Scottish Ministers Respondent Represented by Mr C MacNeill KC 20 & Mr K McGuire – Counsel [Instructed by Messrs Anderson Strathern] 25 JUDGMENT OF THE EMPLOYMENT TRIBUNAL The unanimous Judgment of the Employment Tribunal is that each of the complaints is ill founded. The claim is dismissed. REASONS 1. The claimant raised a number of complaints in connection with his gender 30 critical/sex realist beliefs. The respondent disputed the claim. 2. At a case management preliminary hearing, matters had been focussed and it was agreed a full hearing would be convened. While the claimant was not legally represented at the Hearing, he had the benefit of legal advice prior to raising his claim, evidenced by the high quality legal pleadings and 35 Case No.: 4102841/2023 Page 2 information he had submitted. The claimant was extremely intelligent and articulate and understood the issues arising and the claims he was bringing. 3. The full hearing took place in person with the parties having been given time to prepare written submissions and to speak to them. 4. The hearing began by a reminder of the overriding objective and the need for 5 both parties to work together to assist the Tribunal in ensuring that everything that was done was fair and just with due regard to cost and proportionality. The rules as to the taking of evidence and how a Tribunal reaches its decision was explained and the parties had finalised a list of issues and were working on a statement of agreed facts which continued during the Hearing. 10 Case management 5. The parties had worked together to focus the issues in this case which are reproduced at Annex B (and were finalised after the submission stage, following the claimant having been allowed to include a further act of harassment/direct discrimination that had not originally been included in the 15 list of issues but about which fair notice had been given). 6. The parties were able to agree timing for witnesses and the parties worked together to assist the Tribunal in achieving the overriding objective, in dealing with matters justly and fairly taking account of the issues, cost and proportionality. The case was able to conclude within the allocated time with 20 the parties using one of the days to focus the issues and facts agreed and in dispute. 7. There were a number of preliminary issues that arose in this case. 8. Firstly, an application had been made by Tribunal Tweets to issue live tweets during the Hearing as to what was said and discussed. Open justice is given 25 primacy in Scotland and any derogations require to be in the interest of justice and proportionate. Submissions had been sought in relation to the application and the Tribunal deliberated and issued a decision. Given the importance of the issue, the decision that was issued in this case is found at Annex A to this judgment. This case gave rise to a number of private beliefs of witnesses and 30 Case No.: 4102841/2023 Page 3 those not present. To reduce the risk of error (and misreporting) which arose by immediate and real time tweeting, reporting was directed to be in the normal way. 9. Given there were a large number of observers, the Tribunal ensured that any production to which reference was made was read out, thereby ensuring 5 everyone was able to follow proceedings and understand the evidence and context. 10. Secondly, the parties had agreed that a person whose name had featured in the productions should not be referred to. It was not necessary to make any order as it had been agreed the name would be removed from the productions 10 (and not referred to during the Hearing). 11. There were a large number of witnesses being called with limited time and so the parties had worked together to agree upon a timetable to ensure the Tribunal’s time was used fairly. The parties were able to elicit the evidence they sought in the time available. 15 12. In passing it is worth noting that in this case evidence in chief had been given by way of written witness statements. This was clearly a case where it was in the interests of justice to do so (and in accordance with the Presidential Guidance and Practice Direction). By having witness evidence in writing, significant savings in time were secured and the parties were able to focus 20 their dispute. Thus there were 2 witnesses whose evidence was able to be agreed with their attendance to give evidence not being needed. The parties were also able to clearly focus their questions to ensure the issues arising were fully and properly addressed. Issues to be determined 25 13. The issues to be determined were discussed in detail and focussed by the parties. It was clear from the material the claimant had provided to the Tribunal that he had the benefit of legal advice. That clearly included the framing of the issues in respect of which time and care had been taken. The issues to be determined were agreed and are set out in Annex B. The 30 Case No.: 4102841/2023 Page 4 respondent had accepted that it was responsible for the actions of the relevant individuals (save for any acts of Pertemps). Evidence 14. The parties had produced a joint bundle of 1145 pages to which an additional spreadsheet was added of consent. 5 15. The Tribunal heard oral evidence from Ms Allan, head of diversity and inclusion, (who managed issues arising from the complaints raised by the claimant in connection with the email attachment and Yammer posts), Mr Hope-Jones (who headed up the gender recognition unit and had replied to an email the claimant had sent him), Jonah Coman (learning and 10 development lead specialist who had run a voluntary training event the claimant attended and issued an email about which the claimant complained), Mr McPhail (finance and energy risk lead, who had responded to communications the claimant issued), Mr Howie (HR manager, who considered complaints the claimant had raised), Ms Hunter (deputy head of 15 HR who oversaw some of the claimant’s complaints and complaints against the claimant and who assisted Pertemps in their investigation and who decided to terminate the claimant’s assignment) and Ms Wallace (HR officer within Transport Scotland who dealt with part of the claimant’s complaint). 16. Having read the witness statement of Joanne Streeter (who was head of 20 strategy and compliance in the diversity team who had received an email from the claimant) and Lu Freem (who was an economic and fiscal analyst who had presented an informal awareness raising event which the claimant attended), the claimant stated he accepted their evidence and had no questions. The claimant also gave evidence. The witnesses’ evidence in chief 25 was taken from their written witness statement, as supplemented, by oral evidence with each relevant witness being cross examined and asked further relevant questions. 30 Case No.: 4102841/2023 Page 5 Facts 17. The Tribunal is able to make the following findings of fact which it has done from the evidence submitted to it, both orally and in writing. The Tribunal only makes findings that are strictly necessary to determine the issues before it (and not in relation to all disputes that arose nor in relation to all the evidence 5 led before the Tribunal). There was a large amount of evidence given in this case, both in writing and orally, and the Tribunal only records the facts it had found as necessary to determine the issues in this case. Where there was a conflict in evidence, the conflict was resolved by considering the entire evidence and making a decision as to what was more likely than not to be the 10 case with regard to what was written and said at the time (when viewed in context). The Tribunal is grateful to the parties for focussing the issues and agreeing key facts and making it clear what the disputed position was in relation to such facts. Background 15 18. The respondent is the Scottish Government. Pertemps Recruitment Limited (“Pertemps") engaged the claimant with the job title “flexible worker”. The claimant was engaged by Pertemps under written terms of engagement to carry out work for the Pertemps’ clients to whom he may be assigned from time to time. 20 19. With effect from 6 June 2022 the claimant was assigned by Pertemps to provide services to Transport Scotland (an executive agency which manages transport for the respondent). The agency had around 650 staff with a budget of £3.9 billion. The claimant was a contract worker in terms of section 41 of the Equality Act 2010. The claimant was familiar with temporary work and had 25 been a temporary worker since 2008 until 2015 and then from 2022 onwards. 20. Those who work for the respondent (and its agencies) are civil servants and as such are required to comply with the civil servants code of practice and standards of behaviour. This requires individuals to act impartially and honestly, being respectful of others. 30 Case No.: 4102841/2023 Page 6 Claimant’s beliefs and non-beliefs and desire to test the respondent’s position 21. The claimant believes that sex is real, binary and immutable. This is often called being a sex realist or gender critical. 22. The claimant does not believe in gender identity ideology, a concept which he considered difficult to articulate. He believed it was “a belief that the internal 5 self trumps the reality of biological sex”. The claimant does not believe that gender ideology is worthy of respect or protection. The claimant also believes that those who believe in gender identity ideology feel uncomfortable when challenged. 23. The claimant was keen to explore and debate with those who do not share 10 his belief their reasons and approach. The claimant is a highly intelligent and articulate person who holds the foregoing belief and non-belief...