"Darlington Nurses" vs County Durham and Darlington NHS Trust Tribunal Thread 9

O wad some Pow'r...

I would once more like to voice my thanks to the knowledgeable souls of FWR - your specific analysis of the minutiae of the ruling has been so helpful to a layperson like myself.

I thought I'd share this comment, from trans reddit, as it shows the depth of (one area of) the absolute misunderstanding of the purpose and intent of equality legislation:

"All these contradictory rulings need a resolution via parliament doing its job, but I would worry they'd not act in our favour as was the intent of the original Equalities Act."

"The fault for all of this lies squarely on the government, specifically Bridget Phillipson and Keir Starmer... It is an obscene indictment of the government’s cowardice, and women will not forgive them for it."

And not just the government. I won't be forgiving any of the lunatics who have promoted this shite, to the utter detriment of women.

Another excellent article.

They’ll likely be out of time

Hadley Freeman in the Times:
https://www.thetimes.com/article/375710e2-3c9e-4f29-ac1c-d52ac8f3960a?shareToken=3fd89e937f541df25cc63f91bb38272a

I am also reminded of the Allison Bailey tribunal judgement - the panel were unwilling to follow the logic of the facts and argument to the finding that Stonewall had tried to get Garden Court Chambers to discriminate against Allison Bailey. They swerved at the last minute.

So would I!

I think if it had been Naomi conducting the case, she would appeal. This part does smell a bit of the Tribunal thinking the nurses should be satisfied with the finding against the Trust and not be mean to the poor misunderstood Henderson.

Rose has had separate changing facilities and hasn't been using the women's CR since at least April 2025.

The hospital will have to redraft its policies, and the nurses will get monetary damages. If the nurses and the hospital can't agree how much they get paid or some other aspect of what the hospital has to do to put things right then there will be a remedies hearing.

I wonder if this judgement will influence Phillipson at all? She’s so deep down the bekind rabbit hole. Perhaps she won’t have to act because individual trusts will realise on the own they had better get on and act on the law as it stands and not SW law.

That poor woman / trans man being so vulnerable and then being placed with adult men with acute psychiatric conditions. That particular lawsuit cannot happen fast enough. It might be difficult to find an individual to be responsible but it might finally FFS wake up those making such decisions to actually think about what they're doing.

In an ideal world:

TIM goes to management: "I've just found out that my presence in the female changing room has been distressing my colleagues. I am mortified. How can we work together to find a solution that works for all of us?"

In reality, during questioning (I paraphrase):

"Did you ever consider how your presence in the changing room affected your colleagues?"
"Not really, no"
🙄

I agree that Rose's conduct appears to have met the definition of harassment. But I wonder (I fear) what it will take for an employment tribunal to find one of these men guilty of harassment.

My read is that Sweeney wanted to focus on those making policy and enforcing policy. He was keen it wasn’t one side versus other or personal for Rose.

He is saying those that allowed this to happen failed the nurses - calling Rose guilty muddies the waters somewhat - from my read between the lines.

Not saying it’s right. But of course these delusional people have been enabled so much that they don’t know what’s right. Their employers know better so they better control them better.

He did go on to say that it might be the ratification and or adoption of the policy that was conduct if the policy itself wasn't conduct - might be a weasel loophole to write a policy and then not ratify it, although I imagine doing anything with it - eg sending it to someone or putting it on a website might be conduct.

Wow, the judgment is written so clearly, that I was able to read and understand it - eglish isn't my first language. It reads as a mystery novel.

I like the explanations of what kind of findings is this tribunal making and how dismissing claim doesn't mean the person is lying.

A few thoughts

• It is incredibly difficult to prove personal level harassment.
• The trust was so concerned with Rose's rights, potential risk of lawsuit or media involvement, that they totally failed to notice the risk of a potential lawsuit or media involvement on the nurses side - even after the nurses got a solicitor! It is frightening how relatively competent people can collectively hold such a huge blind spot.
• Generally, no employer should ever be asking (or needing to know) about their employee trying to conceive (M or F part of it) However the wording of the policy about self declaring that one lives fully in the chosen gender made it relevant. But they didn't feel they could ask and disregard it as a rumour. It's sign of a bad policy, that it makes something like this relevant.
• I like the indirect discrimination explanation about different effect of the same policy on men and women.

One of my favourite sentences, just from language point of view is
Although Ms Bailey ought to have known this from the emails, someone, either Theatres managers or Ms Smedley or Ms Atkinson, could have but did not make it clear. It says so much.

So now the tribunal said that the Trust is wrong, Rose personally is off the hook, Trust should move Rose to the ex-office and suggest some reasonable remedy for the nurses, preferably without a need for another tribunal hearing.
Am i right?

Yes, that's what the Legal Feminist blog described as this tribunal's "failure of nerve".

Partly I think the problem stems from the tribunal wrongly having absorbed that there is stigma in being a "harasser", like an abuser. The EA2010 doesn't impute moral blame to it's requirements (or else it they would be criminal offences), it (paraphrasing) just says if someone is harassed they should get money damages. Inadvertent harassment by an individual is just as serious as inadvertent harassment by an organization. The tribunal could have, and should have, in my view, said that RH had harassed the claimants, although it should be clear that it is not a moral or ethical judgment, and that RH may well have felt fully justified in his behaviour.

I agree with what you are saying from a legal point of view, but I suspect the nurses won't have the desire to go back to court to prove that point, as long as the hospital changes their policies and provides them with single sex spaces.

I also think that many people will think that from an ethical point of view intention is relevant and that the nurses got their single sex spaces, so it would be difficult to raise funds.

No I do take that point. And I think ETs should should rule that it is harassment, but they don't seem prepared to go that far because trans people seem to have a special status in that regard.

Your correction is noted and I am grateful - quick googling raises the "reasonable person" defence; that is harder to justify.

This reminds me of the Middlesbrough case of the 17 year old man, Ciara Watkins who didn't disclose that he was not a woman when engaging in sexual activity with another young man. Ciara was found guilty and put on the sex offenders register.

Both he and Rose were told they could be women and that anyone who said they weren't was a bigot. The man that was able to see women undress and was in a state of undress in the women's changing room has been found to be not culpable.

Again, it's categorically not an excuse to harassment that you - even genuinely -didn't think the person would be offended by your behaviour.

The trust genuinely thought they were doing the right thing too. It wasn't, and isn't, an exuse.

I think there is something in this because I think some of these men do genuinely believe they are women. Plus Rose had colleagues who were siding with him over the awful bigoted nurses (and put up the inclusive changing space poster).

If you look on the trans Reddit board, they express utter astonishment that any woman would have an issue sharing changing facilities with (as they see it) another type of woman. And that is why this issue is so intractable because they have no real understanding of how (actual) women feel. And I think that is how the tribunal viewed Rose.

ETA you also have to remember that these men are surrounded by family, friends and colleagues who are affirming them at every step. This feeds in to their belief that they are entitled to be treated as women in all circumstances. This was very apparent with Dr. Upton. Is anyone close to these men telling them the truth?

@TriesNotToBeCynical
I took far too long to type, and you’ve explained far more clearly what I was trying to say.

A possible rationale is that mens rea is required for harassment.

I'm not sure that's correct. "Mens rea" is usually applied to criminal offences. The requirements for conduct to be harassment are laid out clearly in EA2010. It's conduct that has the "purpose or effect" of creating a hostile or intimidating (etc.) environment.

The conduct has to be deliberate, sure, but only to the extent of meaning to enter the women's changing room and not, for example, having accidentally tripped over the threshold.

I can see the argument for Rose not harassing.

From Rose’s perspective, national charities were saying that workplaces were not a service so FWS didn’t apply, therefore Rose was allowed to be in the changing room and this was being supported by HR and other colleagues. Rose was a healthcare worker, not an HR expert or lawyer, so isn’t expected to know the detail of the law. Therefore, from Rose’s perspective, the nurses complaining were discriminating against Rose, due to Rose’s protected characteristic of gender reassignment.

Had HR said that the law said that trans women must use the changing room of their sex, or evidence had shown that Rose knew the law required Rose to use the male changing room, harassment by Rose would have been more clearly present.

I think that’s a good outcome, because it puts the pressure on employers to tell employees that changing rooms are based on sex, and the employer will be held responsible if this isn’t done.