Did Kemp struggle with an AI helper?
An employment judge has been accused of peppering a ruling with inaccurate and nonexistent quotes from other judgments.
Scottish Employment Judge Sandy Kemp handed down his keenly-awaited judgment this week which determined that Sandie Peggie, a nurse who objected to changing in the same room as a transwoman doctor, had been harassed by NHS Fife, but dismissed her other allegations of discrimination and victimisation.
Barrister Jolyon Maugham of the Good Law Project welcomed the verdict for finding "that there is no trans bathroom ban", and described it as “a real disaster for those - pretty much the entirety of the British media - advancing a maximalist reading of the For (Some) Women Scotland decision.”
Interested parties combing through Kemp’s mammoth 312-page verdict noticed something unusual: several of Kemp's quotes from other judgments either didn’t exist or appeared in a heavily altered form.
At paragraph 791 of his ruling, Kemp stated that “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'".
Yet that line does not appear anywhere in Forstater. Lawyer Dennis Noel Kavanagh said the judge’s hallucination was “most unusual”, while the claimant in the case, Maya Forstater, pointed out, “This 'quote' from my judgment doesn’t come from my judgment. It is completely made up. 🤯”
On Thursday the tribunal made the unusual decision to issue a certificate of correction, replacing the erroneous paragraph with a version which it said "provides support for the proposition that the Equality Act 2010 does not create a hierarchy of protected characteristics". It excused the phantom quote as a “clerical error”.
The tribunal may need to issue a few more certificates to sort out what one equalities lawyer described as a "dog's dinner".
Two paragraphs later Kemp included a long quote from Lee v Ashers Baking Co Ltd [2018] UKSC 49 which doesn't appear anywhere in that judgment.
Elsewhere, Kemp misquoted the Supreme Court's key For Women Scotland v The Scottish Ministers ruling in his consideration of its implications for transwomen seeking to occupy female-only facilities.
His version deletes the word ‘trans’ and omits the qualifying context which gave the original passage a different meaning.
Kemp:
The decision states that "such women may in practice choose to use female-only facilities in a way which does not in fact compromise the privacy and dignity of other women users….."
For Women Scotland (emphasis ROF's):
Although such trans women may in practice choose to use female-only facilities in a way which does not in fact compromise the privacy and dignity of the other women users, the Scottish Ministers do not suggest that a trans woman without a GRC is legally entitled to do so.
Scottish advocate Jonathan Brown said, “This seems like the sort of thing that you probably shouldn’t do in a very high profile judgment that you would expect to be subject to intensive scrutiny and which was quite likely to be appealed”.
There is more judicial sleight of hand at work in paragraph 579, where Kemp cited R (C) v Secretary of State for Work and Pensions [2017] UKSC 72.
Although he states that the quote was what "Lady Hale, as she had become, said in the first paragraph of her speech", in fact it is the 29th paragraph of her speech, grafted on top of a section of her first paragraph.
In another apparent example of Kemp's creative quoting, at paragraph 454 the judge includes an excerpt from Games v University of Kent UKEAT/0524/13 which hasn't been found in that judgment, and seems instead to be a more concise formulation of the point at issue.
Kemp:
In Games v University of Kent UKEAT/0524/13 it was held that statistical information was not necessary: if it existed it would be "important material” but that “the evidence of the claimant and others in his group might suffice and could provide compelling evidence of disadvantage even if there are no statistics at all."
Games:
But the Claimant’s own evidence, or evidence of others in the group, or both, might suffice. This is, we think, as it should be: the experience of those who belong to groups sharing protected characteristics is important material for a court or tribunal to consider. They may be able to provide compelling evidence of disadvantage even if there are no statistics at all.
Presenting a summary as if it was a quote from a judgment appears to be a recurring issue. At paragraph 473, Kemp cites an ECHR judgment, Eweida, Ladele, McFarlane and Chaplin v The United Kingdom [2013] IRLR 231, but his excerpt does not seem to feature in that ruling. It appears instead to have been gleaned from a summary of the case, possibly contained in the Industrial Relations Law Reports referenced by Kemp. (ROF hasn't checked as our IRLR subscription has lapsed.)
At paragraph 547, Kemp cites the ECHR ruling in Evans v United Kingdom Application no. 6339/05, but without identifying that he is quoting a lower tier’s decision and not the final judgment which was handed down a year later by the Grand Chamber.
Kemp's sloppiness extends to misdefining a key term which has the unfortunate effect of classifying both transwomen and transmen as biological males: "The Tribunal will use the terms 'trans woman' being a person assigned male by sex at birth... and 'trans man' being a person assigned as male by sex at birth", his judgment states.
In the gift that keeps on giving, another section sees clumsy Kemp refer to the gender critical group 'Not All Gays' as 'Not for Gays'.
The mistakes have prompted some to wonder if the judge outsourced parts of his lengthy opus to ChatGPT, while Peggie has said she will appeal the ruling.
A spokesperson for the Courts and Tribunals Judiciary told ROF it does not comment on judgments.
Update: Another error has been spotted. At para 431, Kemp cites Earl Shilton Town Council v Miller [2023] EAT 5, where the claimant was a woman. The original judgment stated at paragraph 28, "the claimant was not provided with toilet facilities that were adequate to her needs", but Kemp's quote gives her a topical sex change, altering the line to: "the man was not provided with toilet facilities that were adequate to her needs".