"Darlington Nurses" vs County Durham and Darlington NHS Trust Tribunal Thread 4

[ThreeWordHarpy]

Thread 1, 7-Oct to 23-Oct; pre-hearing discussion, KD (day 1 of evidence) and BH (day 2).
Thread 2, 23-Oct to 28-Oct; BH (day 2), CH, JP, MG (day 3&4), TH, SS, ST, LL (day 4), JS, AT (day 5)
Thread 3, 28-Oct to 29-Oct, AT (day 5&6), TA (day 6)

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 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 Seamus Sweeney
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
SW - Sue Williams, NHS Trust HR
KD – Karen Danson, first claimant to give evidence.
BH – Bethany Hutchison, claimant
AH – Alistair Hutchison, husband of Bethany
CH – Carly Hoy, claimant
JP – Jane Peveller, claimant
MG – Mary Anne (aka Annice) Grundy, claimant
TH – Tracy Hooper, claimant
SS – Siobhan Sinclair, witness for the claimants, retired from Trust
ST – Sharron Trevarrow, witness for the claimants, retired from Trust, former housekeeper and wellbeing officer
LL – Lisa Lockey, claimant
JP – Professor Jo Phoenix, expert witness
JS – Jane Shields, witness for the claimants
AT - Andrew Thacker, witness for the respondents, NHS trust Head of HR
TA – Tracy Atkinson, witness for the respondents, NHS trust HR.

Most of this is before the Supreme Court judgement. If they looked into it then, they decided would have found that they could have allowed a transwoman to use a women's changing room.

I.e. there was an NHS tribunal that found discriminatory treatment when a trans employee was questioned about being “naked from the waist down” as they wouldn't have asked this of a biological women changing.

When is the fragrant Rose appearing?

In my view TA was much worse than AT on the stand.

I know some have mentioned fewer direct hits and a slippery-ness but I didn’t read it as either.

Whereas AT was caught in clear incompetence TA demonstrated something much worse. In thinking she was being clever in not having revealed her own prejudices in emails and by using vague language in her replies she demonstrates the endemic nature of the ‘hot potato’ evidence trail which reveals absolute discrimination because I think a lack of action,
turning à blind eye, avoidance etc to an issue can be construed as discrimination in lots of ways that she manifests in her ‘I’m too clever to be caught’ narcissism.

I don’t think the lack of a formal complaint is the get out she thinks it is. Any institution will have processes galore because they can help people through tricky issues and often HR will
point out that it would be helpful if that process was activated but it doesn’t allow for willful lack of action if not activated. I would hope that a sensible ET panel would observe that given the opaque muddied mishandling of the situation from the outset HR had a responsibility to ‘support’ the concerned nurses by helping them
activate a formal complaint process.

in any institute I have worked at the HR team would advise anyone with an issue to activate process as
it should help all navigate important stages. The mess that TA let boil away amongst the varied admin and EDI teams is a mess she created by inaction. Just because you didn’t do anything specific to cause a mess doesn’t mean the mess isn’t caused by your inaction. A lack of evidence is not evidence that you didn’t cause the problem.

i think TA very much revealed that the management thought the nurses were bigots needing re-education and that the matraphobia
which declares that men are not a problem because the problem is uppity women who deserve nothing,
not even professional respect, are.

There is incompetence and then there is malicious autocratic narcissism. AT is a fool but TA is a fully knowing piece of shit.

Probably after Rose has procured some new boxers.

I feel like I know more about Rose's grim underwear collection than I ever wished to - which of course is all part of the fun fetish for the fragrant one!

I'm just catching up from the last thread.

I'm getting "it's not my job to do my job" vibes from this witness.

If I had to re live my life, my career choice would be HR in the NHS:

• no requirement to know anything,
• training is all about "being kind",
• bonus points for deflection and shrugging
• excellent pay and job security

For many years (until 14 years ago) I was a full time trade union rep in a Civil Service Department. The Department was very aware of the legal requirements around the work it did, with very good audited processes. The Health and Safety around technical installations was alsovery good. I cannot say the same about HR. Of course by the time a union member came to me something had already gone wrong, but when I “unpicked” cases it was clear that there were gaps in processes or lack of knowledge and very often a lack of curiosity or imagination that I could “exploit” in support of the member. I accept that I only had to understand case law when a case came to me, but I was not an HR professional. I also made sure that I was totally on top of my brief.

Some individual Trusts are ISO9001 certified but not the NHS (you can check via the UKAS cert check service) as a whole, they are however regulated by Care Quality Commission and CQC framework. Regulations 15 (premises and facilities need to meet h&s laws and equality act) and 17 (provider needs to meet Employment laws) of the framework would be most relevant based on what I’ve been reading this evening.

I know ISO9001/14001/22301/20000 and 27001 inside out but haven’t read the CQC framework before today.

https://www.cqc.org.uk/guidance-regulation/providers/regulations-service-providers-and-managers/related-legislation

Oooh @InfoSecInTheCitythankyou. I have had a quick scan. I wonder how the Care Commission plan to audit or inspect against the non clinical regulations. Their reports say very little about what i would call corporate governance.

It has been clear since the Haldane judgement in 2022 that Dr Upton had no right to use a woman’s changing room.

The SC judgement only concerned GRCs

Dr. Upton isn't in this case/ thread...

Anyway I've dug out the bits from the old EHRC guidance that applied 2023/2024/until Supreme Court judgment when it was withdrawn.

Which said among other things: "A blanket policy of automatically excluding all trans people from single-sex services is unlikely to be lawful.”

Bunba googled for other Trusts policies to support Trans rights. She didn’t ask an open question about balancing rights. And yes they have a duty to keep up to date or at least be aware.

I wonder what ACAS was saying if an employer phoned looking for advice on this type of dispute.

But you’d have to live with the knowledge you are an incompetent weasel. That’s bad for your self esteem.

@BeaTwix

You are not a coward. Thousands of women in each of these Trusts probably feel like you do but the system is so stacked against each one.

We can see that there is so much personal cost to each of the women who put their head above the parapet on these cases.

They are ignored, branded bullies or transphobes and they are put under threat of disciplinary proceedings.

Hoping things change for the better for you quickly.

This was ACAS' advice prior to the SC ruling so likely if an organisation cared to ring up they would have been told, you don't need to tell other employees and its probably discrimination if you don't let the trans person use the facilites they want, not even a mention of a GRC. You would think to yourself as well its been several months since the SC ruling they will have updated their website since, nope the exact same info is there just with a headline saying they're reviewing their advice since the SC decision (someone must be on a go slow)

https://archive.ph/QDtsh

"Toilets and changing facilities
At some point during their transition, an employee will probably want to change the facilities they use.
If an employee tells you they want to use different facilities, you should talk to them about:

• when the change could happen
• what, if anything, to tell other employees

Everyone at work should be able to use facilities they feel comfortable with. Making a transgender employee use facilities they're not comfortable with could be discrimination. If other employees raise concerns related to facilities, you should be sensitive to these. Consider the concerns and look for practical solutions that everyone can accept. Good solutions might include:

• having one or more self-contained toilets that anyone can use
• making sure changing rooms have lockable cubicles

"

@miri1985 - well at least there is a bit about balancing rights…. 🤯

It’s shocking actually how any of these places think it’s a defence under law to say - someone hasn’t issued a document to tell me how to comply with the law.

No one issues advisory notes on how not to steal, rape, tax avoid. You’re just mean to comply with the law.

Biological men in the men’s. Biological women in the women’s. It’s not rocket 🚀 science.

It could also be because it's not a battle of ideologies this time and the attitudes of the barristers are different. I'm not a member of the Jane Russell fan club, let's just say. I'm thinking of him as Sher Khan in the Disney Jungle Book. All suave and elegant and deadly and oh so polite. Jane Russell was more Kaa...

Not seeing one party as an exaggerating nuisance would probably be good too. Still, it explains how some parts of the NHS treat patients. They probably think they are doing well compared to how they treat their staff. From now on, I intend to go out of my way to be nice to nurses because someone's got to.

This. Are there other instances, either within HR or in other fields, where it's standard practice to need guidance to follow the law?

In my own field there are some plain English guides released, but these aren't the law, and don't cover every amendment. When there is an update they often don't get released until a few days or weeks later, and I can't say "but the guidance!" as that won't wash.

'Action taken as appropriate' sadly seems to be bureaucratic for 'shut up and go away because we like our procedures and don't intend to admit that we make any mistakes. Ever. Not even a little one. We are always RIGHT even when the facts say we are wrong.

I do wonder if too many within state run organisations are so captured by the 'we are busy, clients/patients are unreasonable' mindset that they don't realise how they are seen. Ref the new head of the NHS saying that he didn't think the NHS like patients.

WRT HR witnesses, I agree AT and TA are awful.

However, the HR Advisor in Jo Phoenix case was the only credible witness. Again the HR Director was awful, she never read Jo’s grievance.

In SP it was the HR witness who reviewed the suspension and recommended ending it as there was no justification. The cabal of 6 put pressure on her not to reverse the decision but she stood firm.

Like any profession there are good, average and poor HR professionals. Sadly we seem to be getting the poor ones who rise through the ranks as they can do strategy and corporate speak but know fuck all about HR.

In my experience in response to EATs HR policies and procedures were reviewed, updated and guidance provided to ensure compliance with the law. With ETs a watching brief was often taken as an EAT could overturn an ET.

I'm glad. My experience is with a Local Council education department who didn't bother to update the policies on SEND when they were last reformed because they were 'too busy.' 3 years later, they failed the OFSTED inspection. 3 years after that, they are 'in the process of updating' and have failed the last 2 inspections. Yup, the regulations are being reformed again next year. Nope, nothing has happened to those who looked at statutory guidance, pocketed the training cash and carried on as before, which didn't bear any resemblance to the last statutory guidance either. I'm seeing this same attitude with the SC judgement. They don't want to do it, so they won't, because they know nothing will happen to them and can misuse power to make anyone who complains' life miserable. Yet again, the process is the punishment

@Easytoconfuse thatbis not good. Yes, the process is the punishment.