"Darlington Nurses" vs County Durham and Darlington NHS Trust Tribunal Thread 2

[ThreeWordHarpy]

Link to Thread 1, 7-Oct to 23-Oct; pre-hearing discussion, evidence from KD (Day 1) and BH (Day 2).

Five nurses working at Darlington Memorial Hospital have filed a legal case suing their employer, an NHS trust, for sexual harassment and sex discrimination. The nurses object to sharing the women’s changing facilities with a male colleague, Rose, who identifies as female. The NHS trust’s HR department dismissed the nurses’ concerns, stating they should “broaden their mindset” and “be educated”. More details can be found at Sex Matters and at Christian Concern who are supporting the nurses via the CLC.

The hearing started on October 20th, with evidence starting on October 22nd and is scheduled to last 3 weeks. To view the hearing online, requests for access had to be made by October 17th. The hearing is being live tweeted by Tribunal Tweets who have background to this case on their substack. An alternative to X is to use Nitter: nitter.net/tribunaltweets or nitter.poast.org/tribunaltweets

The Judge made clear at the start of the public hearing on Day 1 that only TT or press have permission to tweet. If online observers see/hear something in the court that isn’t reported by TT, we don’t mention it until the next time there’s a break. This is a very cautious approach to avoid any accusations of “live reporting” on MN. Commentary on the content of TT tweets is fine as soon as they’re posted on X.

Key people:
C/Ns - Claimants, the Darlington nurses
R/T/Trust - Respondent, County Durham and Darlington NHS Foundation Trust
J/EJ – Judge/Employment Judge
NF - Niazi Fetto KC, barrister for claimants
SC - Simon Cheetham, KC, barrister for respondents
RH - Rose Henderson, trans identifying nurse
CG – Clare Gregory, ward manager
KD – Karen Danson, first claimant to give evidence.
BH – Bethany Hutchison, second claimant to give evidence
AH – Alistair Hutchison, husband of Bethany

Other abbreviations:
WFTCHTJ – Waiting For The Conference Host To Join
ET - Employment Tribunal
DMH/H – Hospital, Darlington Memorial Hospital
CR/CF - changing room or facilities
IX - internal investigation
XX – cross examination

Thanks

Thanks for running these threads ThreeWordHarpy.

From TT

BH: Yes. Bcs we had to set up our own union - ours would not help - but R refused to recognise the union.
SC: You weren't seeking recognition.
BH: Yes we were.

NF [intervenes] the harassment claimed is not the offer of union representation, it's the refusal to allow present of solicitor - even as an observer, not as advocate.

J: To clarify - the issue is the refusal of lawyer attendance?
NF: Yes that is the issue before the tribunal.

SC: [page ref] Letter 27/6 from solicitor to the Trust, listing claimants, says the claimants have been invited to resolution procedure but have declined to engage.

SC: How did you expect employer to resolve, if you didn't engage?
BH: They should have resolved much earlier -
J: Not the Q.
SC: How did you expect R to resolve?
BH: Had already made our concerns entirely clear - no need for me to be involved more.

From TT

SC: But surely resolution procedure necessary?
BH: Didn't know anything about any resolution procedure - until this point.

SC: [ref] Briefing note dated 17 July - requesting Mr Newton to act as investigating officer. Lists 3 points to investigate. Include your letter from 26 colleagues, and the follow-up letter.

SC: Do you agree this investigation is looking into your concerns.
BH: Yes
SC: No doubt about it?
BH: Not from this letter, no.

Provide us with SS bogs please we are done with meeting about it

They had no legal right to have legal in the meeting - law says colleague or trade union rep only so don't see how that can be harassment

From TT

SC: So why did you refuse to get involved?
BH: Felt it would be biassed.
SC: Felt investigator would be?
BH: We asked for a CV but were not allowed to have any information about him at all. And, involvement of HR - had been very poor experience so far.

BH: And we had already started legal proceedings - was worried R would use this to investigate us, trip us up.
SC: But they were investigating your concerns!
BH: Not how it felt, all the way along. Felt that Trust had already put us as being 'in the wrong'

SC: You also complain about R writing to you personally instead of solicitors. But this was not about the legal proceedings, was about resolution procedure
BH: I experienced as harassment - was already off sick with stress.

Thanks for the new thread.

Just picking up on something that was mentioned on the last thread about the possibility of BH seeming combative and this not going down well. I too worried about that as reading the tweets, they sometimes gave that impression.

However, I guess it's all about the delivery. I'm not watching so have missed that aspect of it. If she is saying things calmly, albeit firmly, then hopefully she is hitting the right tone. Whenever I've seen her being interviewed (including that awful, hostile interview on Women's Hour), she has always come across really well.

The lawyers seem to have classified loads of things as harassment on the basis the more the merrier, but the witnesses are being asked to defend it. Seems cockeyed

@ItsAllGoingToBeFine The nurses had set up a new union which the trust didn't acknowledge.

The reason being their previous union would not represent them.

That was more of a legal question

I also wonder if there's been a kitchen sink approach to the number and nature of claims that have been made by the claimants.

From TT

SC: Not quite my Q which was -you complain about R writing to you about the legal proceedings - my point is these letters are not about the legal proceeedings?
BH: Yes.

J: Where on list of issues?
SC: [refers to list of issues point]
SC: They are writing about the resolution procedure.
BH: Yes; I think we felt by now that all communication should be to the lawyers.

SC: You were an employee, this is an internal process, you say R should not have written to you about it?
BH: Yes, should have written to solicitors.

SC: And why is this harassment relating to sex?
BH: It was persistent.

NF: [intervenes] this seems to be on border of asking witness for evidence, and matters better for submissions?

J: Disagree.
NF: The Q seems to be 'how do you consitute as a legal claim?
J: No, am allowing the question.

SC: You did though participate to an extent
BH: Yes
SC: You gave a witness statement and were asked some follow-up Qs. [Ref]. 10th Jan.

I'm wondering whether some of this claim of harassment when it doesn't seem to be a strong claim is due in part to the claimants' earlier legal team maybe being less experienced and taking an approach of chucking everything they can at the case. Are there any legal bods who could comment on this approach? Eg whether making a smaller number of stronger claims would be looked on more favourably by the panel?

From TT

SC: You were sent this email, and here [ref] this is your answers. We can see it's quite a full response. You are not just participating - it's quite a lot of information
BH: Yes, some information.

SC: I have not understood why you didn't decide either not to participate, or to do so fully. Why half way house?
BH: We wanted to show willing, but I was not prepared to be interviewed by 2 people without lawyer able to be there.

SC: You got outcome letter including notice of right to appeal, you didn't appeal?
BH: No we didn't.

SC: [is checking his Qs list etc]

From TT

SC: In your WS you refer to what others have said to you. We heard this morning, you've talked about ppl fearing for their jobs.
BH: Yes

One part of this might be that at the ET level generally there are no adverse consequences in terms of costs in including lots of individual claims and have a number of them fail. There'd be more worries about costs in, say, a High Court case.

Paraphrase SC on the question re internal investigation:

"Why did you participate a bit? Why the halfway house?"

She wanted legal support because her union wouldn't help, the managers were biased - and she wasn't safe.

26 people signed a letter saying they were unsafe with a manly man in his holey boxers in the changing room. And month's later they were still thinking about it.....

No one was taking their concerns seriously. They did well to shine a light on this issue. Well done to them. They do difficult work supporting people through and post surgery for salary in the mid £30ks and then have to get their breasts out for a man to oogle and facilitated by their managers. Absolutley crazy!

My preference would be a more narrowly-focused set of stronger claims. The more that fail because they're less strong, the more this will be used by the NHS in the resultant PR battles.

The point is that the recognised Union refused to represent them, they set up their own union and the employer refused to recognise the new union, so they asked for their own lawyer to be there (as observer not advocate). The fact that the Trust refused both their own union rep and their solicitor as observer is the harassment claim.

Whether that amounts to harassment is up to the tribunal, but it does seem arguable. You wld usually want your union rep present because they know more about complaints/disciplinaries/the law. What is a fair alternative when your union refuses?

This is one of the systemic problems in all these GC/GI cases: the recognised trade unions are all in on GI so there’s no representation - and that’s why Sandie’s case against her union is so important.

So far I'm not convinced this is a strong case. It needs to focus more on the changing room and not how they made their complaint as that's where the sexual harrassment etc will be clear. I don't think CLC appear to have handled this / advised properly. Is RH giving evidence or not?

break

@Notanorthener that's a great summary and I don't think that point has been fully made but maybe NF will cover it in re-examination.

Now we're on a break I can say that I agree that BH is impressive - calm and assertive and not at all combative.

To be honest - Darlington have acted more fairly.

Why they did allow men in the womens changing room - it was common practice and they don't appear to have engaged on the witch hunt as happened to Sandie Peggie.

They had strength in numbers, they went to the press. They weren't suspended and no action has been taken against them. The letters issued are standard. The likely objectively followed a fair process.

So the harrassment claims seem weaker because there is less evidence of harrassment. Still serves well to plead and the testimony of the witnesses being made to feel like they are the problem is credible as to the harrassing environment.

Tied in with Roses leering behaviour (as employers are responsible for their employees behaviour) (if evidenced) the harrassing poster (if evidenced) and lack of action from managmenet to get the manly man out of the room - may well still swing it.

From TT

SC: [ref] Transcript of mtg with Kemi Badenoch.
BH: Yes
SC: you say "this is my job, they have basically said I might lose it". Who is 'they'?
BH: Noone directly. But constant talk of disciplinary actions. Was constant worry, to all of us.

SC: Nobody has threatened your job, or to take away your pay
BH: Not directly, no.
SC: No disciplinary action taken.
BH: Not yet, no.

SC: Your fears are unfounded.
BH: Completely disagree. They see me as a real problem, when I was just raising a concern. I'm certain they would love to get rid of me.

J: You talk in this same doc about internal investigation. Is that the one SC has been asking you about?
BH: Yes, it all felt very entwined. I heard from other colleagues that they had lots of Qs about RH complaint during this same investigation.

J: To clarify by 'investigaion' you mean the resolution procedure?
BH: Yes

SC: No further Qs for this witness.

J: I am going to collate Qs from my colleagues which we'll then put to you. Short break - as before, you must not discuss case with anyone meanwhile.

[Pause in proceedings]