"Darlington Nurses" vs County Durham and Darlington NHS Trust Tribunal Thread 3

[AuthorisedCat]

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

Link to Thread 2
https://www.mumsnet.com/talk/womens_rights/5432103-darlington-nurses-vs-county-durham-and-darlington-nhs-trust-tribunal-thread-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

The placement of the trans patients in private rooms is indeed interesting. @Cantunseeit can correct me if I’m wrong, but I’m pretty sure that while the trust policy allowed for that to happen, it was clearly indicated that this option was, how shall I put it, the sixth worst option. I’m pretty sure the first option was place trans patients in the ward where they wish to be placed.

It is tiptoing back, but we don't have time for the glacial re discovery of some kind of vague and reluctant relationship with the truth.

He's a man. That's it. That's all. 'Biological male' - no, he's a man, who would prefer that you enable and support his belief that he isn't.

He can believe all he wants, whatever, but when it comes to the entire establishment requiring women to undress under coercion to gratify his beliefs then the time is way past to stop enabling any of this at all. The more this is said, clearly, bluntly, the more the BBC will look silly and left behind. And might manage to inch a little faster.

Oh it will be there. Still another hour of our dear Andrew today.

Fetto will get to it - he’s highlighting the discrimination and harassment - which Andrew is helping him with to such a great extent.

To put it another way: “Your freedom ends where my nose begins.”

I also read the judges comment as genuine. I also would be impressed if anyone could recall the whole of a policy without needing to refer to it. Even if it was their department, and they had actually prepared for the task/ordeal of giving evidence at a tribunal perhaps by reading relevant documents!

It is frustrating but maybe because this happened before that judgement so the panel will be considering it within the pre judgement paradigm? To be honest, it seems to me that it is not necessary based on ATs testimony and I think the judge will know that already from reading the witness statements. Even without that judgement AT and senior management were not making any attempt to balance rights and by not doing that they were discriminating against women and also creating a hostile work environment.

Same here, I heard it is a kindness from a judge who does seem to make an effort to be considerate to those in front of him who feel out of place.

@Largesso

that’s beautifully expressed & how I saw it

Unlike some I don’t read the judge has having a go at AT when he said ‘I’ll be impressed if you do’. I think he was offering kindness to a witness so out of his depth and who has so screwed his own pooch that he doesn’t need further ignomy. I also read it as a kindly and careful warning to NT that the point has been made and it doesn’t need further interrogative attack.

He intervened to say - do you know any of the law - AT said I can’t quote it chapter and verse - and the judge said I’ll be impressed if you do - ie it would be incredible if you could quote statute but I’m not expecting that - but AT clearly didn’t know any law and wasn’t familiar with any actual facts or legislation or legally relevant policies. Sweeney was kind but got a response to his answer.

Yup, single sex accom policy has the usual “Transgender patients should be accommodated according to their presentation” and also “… they should be supported to decide where they would be most comfortably accommodated.”

the policy is one of the attachments in the FOI thread linked above. I’m out and about and can’t c&p from the policy on my phone for some reason (undoubtedly user-error!).

I wondered if a reluctance of reporters to be seen/named may also be the reason why the BBC asked for digital copy of witness statements. It seems extraordinary to not want credit for your own work but also: it's the BBC. Surely you'd think they have resources to send a local reporter to court to get the news on the day it's happening, rather than wait for the court to deliberate overnight on whether/how to get digital copies to them?

Very interesting.

"the sixth worst option" is so good, I think about that even when looking through the freezer for quick dinner choices.😁

From what was said yesterday I believe, unlike JR, SC and the respondents accept the SC judgement means RH nor any man regardless of how they present should be in the female single sex changing room.

The argument is more likely to be at the time of the complaint Haldene, EHRC etc. all said TW with GRC are female for all purposes. The Trust thought their policy was lawful but accept it wasn’t.

It will also depend on the actual list of issues which have already been agreed.

I wondered the same, but a quick flick though other local Tees stories seemed to show bylines on some and not others with no particular pattern. A lot of crime/court reports on uncontroversial topics are also anonymous.

Checking in as I’ve just caught up … but am off out so will fall woefully behind again. Thanks for all the great commentary and thoughts

That fits. One thing that's missing for me is what the Trust considers RH to be in terms of what they're arguing. Their position doesn't have to be on all fours with AT's but he's clearly giving evidence on the basis that RH is "not-a-man".

I agree and have complained to the BBC several times about this. Something I’ve never done before.

My point is that the monolith that is the BBC is backtracking and that is positive. Yes it’s at a glacial pace but it’s in the right direction.

Internally we can still rage but outwardly welcoming those moving back to woman = adult human female is going to make their reverse ferret easier and therefore quicker.

Ah, "on all fours"! Haven't heard that for ages (since Forstater, maybe?). 😁

I noted this from the BBC article quoting one of the nurses

"I was aware in the recent past we had a reputation of being a bullying environment for students and that students were refusing to come to Darlington as a result," she said.

There's that apposite Ben Cooper quote again. The trust has just ended up bullying a different cohort.

Regarding TIMs on women's wards being put in side rooms, is that because the nurses controlled their precise placement although constrained by a 'beee kind' over arching policy? TIM patients shouldn't have been anywhere near the women's wards.

I don't know if the people who think the judge was offering a kindness are basing their view on TT or were observing. As others have pointed out TT does a fantastic job but it's not verbatim and inevitably the written word cannot convey all the tone and nuance of the spoken word.

The judge made a remark along these lines twice. The first time he used the words 'you have the chance to impress me' which I don't think was reported by TT and which subtly indicated he was not impressed. To me It was a 'smiling assassin' thing that a barrister rather than a judge would say.

In any event it's always interesting to hear different views and interpretations.

Judge Sweeney is challenging Judge Goodman as my new favourite judge.

The TIMs in side wards thing: that’s my thinking. Some trust policies have wording along the lines of “you must not just put a trans person in a private room, they should be in the ward with all the other people “of their gender”; a private room must be their choice. I will go and look at this trust’s policy in a min, but it’s possible that it’s worded in such a way that a canny nurse could make a decision about patient placement, without falling too far foul of the policy. And that future nurses might learn (without knowing any different) that this is what is done.

I’ll be back with details…

I was watching at that point and I thought the judge was offering a kindness.

I’ve gained a lot of respect for the nurses, individually and collectively, when giving evidence. They are very astute.

Hearing that, one’s attention was immediately drawn to the bullying aspect of the current situation. Many people are aware that if a bully is not able to get to one victim, they will turn their attention to another.

Also, it’s very difficult to eradicate a bullying culture from an organisation that has already succumbed to it.

Ok, verbatim from the “Delivering Same Sex Accommodation (MSA) Policy”

(MSA above refers to Mixed-Sex Accommodation, because earlier policy documents were titled “Eliminating Mixed-Sex Accommodation”)

5.4 Delivering same sex accommodation for Transgender people and gender variant children

Transgender or Trans is a broad term referring to anyone whose personal experiences of gender extends beyond the typical experiences of their assigned sex at birth. It includes those who identify as non-binary.

If presenting gender is not obvious, the patient should be informed that same-sex accommodation is available and they should be supported to decide where they would be most comfortably accommodated. Staff are expected to comply with patient preference.

5.4.1 General Key points are that:

Transgender people should be accommodated according to their presentation (the way theydress, and the name and pronouns that they currently use).

 This may not always be in accord with the physical sex appearance of the chest or genitalia.

 It does not depend on their having a gender recognition certificate (GRC) or legal name change.

 It applies to toilet and bathing facilities.

 Views of the family members may not accord with the Trans persons wishes, in which case, the Trans person’s view take priority.

Those who have undergone transition should be accommodated according to their gender presentation. Different genital or breast sex appearance is not a bar to this, since sufficient privacy can be provided with the use of curtains or by accommodation in a single side room.

Gender variant children and young people must be accorded with the same respect for the self-defined gender as are Tran’s adults, regardless of their genital sex.

So, that little phrase “since sufficient privacy can be provided with the use of curtains or by accommodation in a single side room” might give nursing staff enough wiggle room to do just that, while not technically being in contravention of the policy.

I really hope other trusts are paying attention too.

I know our local hospitals says TiM can go wherever they request and being put in a side room is an unacceptable deprivation unless requested by them themselves.