The Peggie judgment: an unholy mess

Just how can an employment tribunal produce something so muddled and wrongheaded?

It’s been a pretty eventful few days in Genderland. On December 3rd Maria Kelly’s employment-tribunal was published, and Sandie Peggie’s came less than a week later, on December 8th. Peggie’s case was front-page news for much of the year, so there has been more scrutiny of that judgment. But both were extraordinary attempts by lower courts to rewrite the For Women Scotland case – that is, to overrule the authority of the country’s apex court.

In this post I’ll focus on the Peggie judgment, and return to the Kelly one in the next.

Sandie Peggie with her solicitor, Margaret Gribbon (photo credit: Nicole Jones)

Surely the most extraordinary thing about it was that it contained at least three direct quotes purporting to be from precedent-setting legal cases that were either misquoted or entirely made up. One purported to be from my colleague Maya Forstater’s appeal:

In Forstater v CDG Europe and others UKEAT/0105/20 the Employment Appeal Tribunal had emphasised that:

“It is important to bear in mind that the [Equality Act 2010] does not create a hierarchy of protected characteristics.”

Maya knows her ruling inside-out (she has an extraordinary memory for laws and judgments and can quote chunks verbatim), and as soon as she read this she was certain it didn’t feature. And sure enough, it’s pure invention. The tribunal has issued a correction – but one that raises more questions than it answers.