"Darlington Nurses" vs County Durham and Darlington NHS Trust Tribunal Thread 7

[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&7)
Thread 4, 29-Oct to 31-Oct; TA, AM (day 7) JB (day 8)
Thread 5, 31-Oct to 04-Nov; JB (day 8), SW, CG, JR (day 9)
Thread 6, 04-Nov to 05-Nov; RH (day 10), SW (day 11)

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, NHS 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, NHS trust Head of HR
TA – Tracy Atkinson, NHS trust HR.
AM – Andrew Moore, NHS Head of Workforce Experience
JB – Jillian Bailey, NHS Workforce Experience Manager
AT – Anna Telfer, NHS Deputy Director of Nursing
SW – Sandra Watson, Matron for General and Elective Surgery
JR – Jodie Robinson, manager of Rose

Not my subject but I did look up International Nurse recruitment a couple of days ago because of the issue coming up during the Tribunal.

The figures quoted seem to vary a lot but at least until 2023 there was heavy reliance on International Nurses and the NHS is still encouraging recruitment of International Nurses.

30.11.23
Andrea Sutcliffe, Chief Executive and Registrar at the Nursing and Midwifery Council (NMC), said:
“Strong recruitment and steady retention have taken our register of nurses, midwives and nursing associates to another record high. This is very encouraging given the well-publicised pressure on health and care services at a time of rising demand for care.

“Our register is now showing fifty-fifty recruitment between UK and internationally educated nursing and midwifery professionals. All these professionals make a vital and welcome contribution to people’s health and wellbeing."
https://www.nmc.org.uk/news/news-and-updates/record-808488-nurses-midwives-and-nursing-associates-in-the-uk/

04 April 2024
International recruitment
"Some job roles are more reliant on international staff. The King's Fund (2023) reported that international staff make up more than one-third of the medical workforce (33.6%), compared with less than 5% of managers. Nurses and health visitors account for 25.3% and midwives 6.9%.

The workforce crisis has been a well-known issue for years, however, there has been little determined action from governments to address the challenge. For nearly two decades there has been no clear plan to address the crisis and the gaps in staffing continue to get worse, because, for whatever reason, the UK political system appears to be unable to provide a competent response to what is a very real and pressing public concern."
https://www.britishjournalofnursing.com/content/regulars/international-recruitment

International Healthcare Professionals for the UK
Nursing and Midwifery
We have job vacancies, across the UK, in the following areas:

Nursing – Adult Care
Nursing – Mental Health
Midwifery
https://www.nhsprofessionals.nhs.uk/nhsp-international

what is apparent here is that is that based on the existing policy the employer should have dismissed the complaint out of hand and not engaged in a “resolution” process at all.

I have got gaps in my knowledge about what went on that you might be able to fill.

It is not clear from the timeline on the Christian Concern Case Page whether the original complaint ("serious concerns" in July 2023) was solely about the fact that Rose/Tyler was allowed to use the Female Changing Room or whether it included other allegations, eg. of Sexual Harassment by Rose/Tyler whilst he was in the Female Changing Room.

It also does not mention whether the "Resolution Process" was initiated by the Trust in response to the July 2023 "concerns" or the March 2024 Letter (Complaint? Grievance?):

2023:

• July: The female nurses raised serious concerns with management about having to share the changing room with ‘Rose.’

2024:

• March: 26 nurses sign a letter to the Trust raising cultural sensitivity and abuse concerns. The Trust refuses to act and dismisses their concerns, telling them to “broaden their mindset,” “be educated,” and compromise because “Rose identifies as a woman”.

https://christianconcern.com/cccases/darlington-nurses/

Even if their "serious concerns" (Grievance?) were solely about the fact that Rose/Tyler was allowed to use the Female Changing Room, perhaps the relevant Trust Policy & Procedure required engagement with a "Resolution Process"?

It is hard even to guess what might have been going on as I think that what was referred to routinely as the "Resolution Process" was at one point clarified as the "Disputes Resolution Process".

I found it very frustrating that there was very little to latch on to throughout most of the Tribunal in terms of language that would help to understand what was going on, eg. there were "meetings" without reference to what stage of what procedure these fell under.

Mind, I haven't managed to observe all sessions so maybe I missed crucial part that laid out all that information. I need to go back through Mumsnet Threads and Tribunal Tweets to catch up.

Without sight of the relevant Policies and Procedures it is impossible to know to what extent the cack-handed way the Trust went about things was due to deviating from sound Policies and Procedures, adhering to flawed Policies and
Procedures or just making it up as they went along. Or a mixture of the above.

I guess we will just have to wait for the judgement and hope that copies of the relevant Policies and Procedures will be included. Or do FOIRs when we at least find out what they are all actually called.

If we suspend reality for a moment and accept that HR's hands were tired because they were bound by the policy which they had to follow... how come they have now provided RH with separate facilities and he is no longer allowed to use the FCR even though the same policy is still in place?

Possibly, and appropriately, In response to the allegations of sexual harassment? That should override the TITWP.

So they kept the illegal policy in place, had it reviewed, reissued an updated version in March this year and then pulled it entirely after the Supreme Court ruling.

So no policy allowing men to willy wangle around the womens toilets. Rose had to take his behaviour elsewhere. The world didn’t end and he isn’t suing. Might have been something they’d considered in the first place.

Not sure I agree with you on the policy point.

Nurses raised three point in their letter (which I suspect they had legal advice on).

1. A bio male was in changing room in breach of H&S law to provide single sex space
2. Bio male was sexually harassing women
3. Transitioning in workplace policy was illegal and should be reviewed

From TT on 28 October - Andrew Thacker senior HR bod giving evidence:

NF - looking at the letter, there were 2 issues raised, use of CR by RH and behaviour? that RH presence was the common factor.
AT - y
NF - to deal with that there were 3 qu for Trust. 1. was it factually correct RH male was using CR 2. Had Trust
NF allowed it and 3 should Trust continue to?
AT - yes
NF - was a male using the CR, you knew this stage it was correct
AT - according to letter
NF - factually correct RH is male
AT - according to letter
NF - had had briefing, did it get you that far
AT - told RH was using CR
NF - and RH was male
AT - can't say, but that RH was using
NF - how long after briefing execs did you know RH was male and using CR
AT - unsure, role of the IX to look at facts. To determine whether or not concerns in letter could be substantiated.
NF - Is RH male and using the F CR
AT - yes
NF - didn't need an IX
AT - no
NF - 2nd qu, had the trust allowed it. When briefed, was it clear Turst had permitted?
AT - yes, it was in letter yes
NF - clear it was permitted under Trans in the workplace policy
AT - y
NF - was the policy correctly applied?
AT - as far as I'm aware Yes
NF - so the QU really is the 3rd. Should the Trust continue to allow this state of affairs, you nod
AT - yes
NF - only way would be to consider own policy, the Trust to, YOur dept?
AT - we'd play a role yes
SC - speak up please
J - yes please
NF - why didn't Trust do that?
AT - My team initiated a process that would allow us to better understand issues and determine whether the details were factual. Trust resolution process used when concerns raised.
NF - haven't we established there was no need for an ix, it is uncontroversial, there was no need a male in CR, needed to determine if policy was right.
AT - needed to look at concerns raised
NF - in circles
J - also raises behaviour
NF - conduct and permitted use, if not permitted conduct wouldn't be an issue, we've established

They failed to consider their illegal policy and in doing so kept breaching the law in H&S respects.

As we know ignorance of the law is no defence.

From the actual evidence - excuse wall of text.

They kept same policy in place, didn’t review it for nearly a year after concerns raised about it, carried out some renewal of the policy Jan/ Feb and it was still allowing men in the ladies by March 2025. Along comes For Women Scotland in April and policy is pulled totally. Men out of the women’s changing rooms and the world keeps turning.

From Tribunal Tweets - 28 October - 2pm - 1st afternoon session

NF - this letter says the policy is wrong and harmful
AT- yes
NF - letter even cites page 80, the policy in bold, about concerns might be raised about sharing with trans employees - please read, let me know when done
AT - yes
NF - should be resolved without pref for one PC or the other, shouldn't cause concern or distress to T or NB
NF - people. But all PC's must be considered. They cite further from policy, conditions for exclusion from SSS, the EQA says there may be circs where TG can be excluded. They ask Trust to treat it seriously, has implications for the department, they ask if RH could change else
NF - where. They made the suggestion. But no review of policy took place
AT - it was looked at with ref to update, resolution process looked at issues in letter. If you are asking if I looked at whether the policy was appropriate, no I did not
NF - pre- meetings, pre- media
NF - not done. You didn't look and didn't ask anyone to look?
AT - no
J - when was policy renewed? Do you know when?
AT - no
J - don't expect you to, but have a look.
NF - page 48 in bundle.
AT - yes
NF - TITWP (trans in the workplace policy) full review 22 Nov 21, thats this
NF - policy 25th Nov 24 next, but extended to Feb 25
J - extended 3 months?
AT - yes, if capacity issues and policy renewal a challenge, keep to extend to have a policy in action
J - capacity issues?
AT - yes, the owners need to keep it in date, review and recommend amendments
AT - Pat Winter retired prior to the expiry date of this policy was due to look at it.
J - that was your capacity issue?
AT - yes
J - automatic extension?
AT - no, need to go through extension ratification via board.
J - requested of board?
AT - yes
NF - if you are concerned a policy might be unlawful, would you still wait till expiring?
AT - if a real concern we would seek a review.
J - before the regular review point?
AT - yes
NF - the policy was left in place for the ordinary review process
AT - yes
NF - a wrinkle there because at one point you asked for it to be expedited.
AT - yes
NF - to bundle, 385, email from you to Moore and Atkinson 24 may 24 saying it's not current, please look to review. Background pg 383 and 384, email from Gillian Bailey to Moore
NF - saying there's a lot here, long email with lots of ref to guidance. Please read, need to see where ref to not current comes in. Pg 384.
reading
J - I have read, witness may not have.
AT - thank you.
NF - you saw this email in the chain that came with Mr Moores email
NF - not directly to you. We see 384 3rd para from top, ref to issues of language in another Trusts policy. reads Then says use of language not in line. Is that what you were ref'ing when you said not current?
AT - I saw an email from Jillian, didn't look at every point in
AT - chain, asked for it to be expedited.
NF - you say you know our policy is in need of an update, that's what you responding to?
AT - as you say I was cc'd into the chain and I thought it was clear it needed updated and asked.
NF - but not a full review because of the letter?
AT - correct
NF - in fact it was March 25 when it was reviewed
AT - yes
NF - a year later
AT - that's when it was ratified, the review started before that date, meetings etc.
NF - yes, TITWPP as it wasremained in force until March 25
NF - yes, TITWPP as it was remained in force until March 25
AT - yes
NF - you chaired the review committee?
AT - no
NF - need to check bundle, supp bundle at pg203. TITWPP prapaired by gillian bailey, is that not your signature
AT - sorry yes it is, not the review committee, it's sign off by Union and management, not detailed review
team.
NF - you didn't engage in lawfulness or appropriateness of this policy?
AT- correct
NF - para 77 of your WS. you say that policy was withdrawn after FWS ruling.
AT - yes
NF - 24 March 25 ratification date, and withdrawn the next month
AT - yes
NF - Bailey date, was in
NF - 5 weeks later
AT- yes
NF - so which policy applies?
AT - there's no policy in place at the moment

Night waking for kids - but the reason why all
this litigation has to win - esp in light of FWS confirming the law as it always has been.

Not one single case has been brought by a trans person wanting access to a changing room of their identified sex.

Rose isn’t suing the trust for excluding him from the ladies because he doesn’t have a case.

I know the NHS is captured but a lot of places have changed their policies and not one single case has been brought by the trans lobby. Not one. (To my knowledge)

Absence of evidence isn’t proof - but if men should be allowed into women’s changing rooms you’d have trans supporting allied law firms running these cases up and down the country surely.

Got it. Thank you.

Have done my little bit of gardening because some things need weeding out. Probably with a really strong weedkiller even though I'm usually organic. It's horrifying how quickly those weeds keep growing.

Agrees.

But one of the reasons is because a lot of trusts don't want to support newly qualified staff to consolidate their training and complete a preceptorship period etc.

There are jobs for experienced nurses and the nurses from the Philippines especially are v well trained.

@YouCantProveIt "As we know, ignorance of the law is no defence"

Nor is deliberately ignoring the law that we do know exists, in the hope that someone will come along and change it, allowing us to continue using our unfair and discriminatory policies.

I hope you managed to catch up with your sleep @YouCantProveIt.

How on earth can a "director of workforce" (whatever the hell that means, given the incompetence of the rest of the managers in this circus ring), ignore the RCN and a high court judge regarding single sex spaces? As far as I can see, the whole system is totally captured and corrupt.

Amazing.

I hope everyone still refusing to implement the SC ruling are paying attention to this because this case is starting to look more and more slam dunky with each new piece of evidence in terms of liability and evangelicals desperate to abuse women.

If this is the case, how the fuck does Rose still have a job never mind all the rest of this case?

Because the NHS management are cybermen in disguise, so they march in step and while chanting 'You will be like us.'

It'll take serious damages to make them thing and even then they'll blame the women who won't march with them rather than think about it. It really annoys me when all these employers start apologising to and offering sympathy for their trans staff because they've got to

I’ve paused my simmering rage to conclude that some of the ghastly blob are hoping to be signed off by virtue of insanity: https://youtube.com/shorts/oRXx-0b_e18?si=kGPy5EyhlwiCXbHh

In the 21st century though, isn’t that what HR is for? Human resources are no more or less important than buying and negotiating contracts for paper clips! In my opinion, the days of HR being there to support employees are long gone. The unions should step in to support employees but their teeth are very blunt and many of them are so wound up with the trans ideology that they wouldn’t support women in the workplace anyway.

Not only a job but escorted to his car and door opened by kindly senior female managers.

Poor wee Rose. He just wanted to get his penis out in the laydees and the bad nurses said hurry things to him.

Not withstanding he didn’t do anything to live as a woman. He grew out his non bald spots but aside from that nothing else.

In his investigation interviews he said he only started hormone treatment well after the concerns were raised.

So a legal man had a thought experiment and suddenly 300 women’s privacy and dignity are in tatters.

I don't know if HR were ever there to protect employees. However, they are there to make sure the policies and procedures are in line with the relevant laws and are followed so that the employer doesn't end up at tribunal. Clearly that has worked well for them!

Others have said it already, but it's clear that they were scared of facing any sort of discrimination claim from Rose, and they didn't realise/care about the women in the scenario. The women will #BeKind and will put up and shut up, and if we really start to tighten the screws they'll drop it because these women have families and bills to pay and can't risk rocking the boat. I think it was in the recent Alison Bailey hearing where Ben Cooper made it very clear that if it was any other protected characteristic they wouldn't be sitting in that court room, and I think it's the same here.

I’ve only been following over the last couple of days - was AT (or anyone from the trust) asked about their response to Noel Scalons email? I read some of AT’s responses to being questioned but I don’t recall anything about this.

Look up Tribunal Tweets for 28 October afternoon session for his answer to that.

It was mostly huffle puffle don’t look at the policy uh it’s complex - one willy outweighs 300 vaginas

https://x.com/boswelltoday

I hadn't come across Bruce Bowman until someone posted his X feed earlier in this thread, but his summaries of proceedings should be plastered across every HR noticeboard in the NHS!

Thanks @YouCantProveIt - so same old, same old..! I
wonder how the Trust are going to look back on that - they could have saved themselves a lot of trouble by listening to Noel S…

My understanding is that he feeds the TT coverage through ChatGPT (or similar). Yes, it's mostly a decent summary, but he's monetising the work of others and he doesn't even bother to check it for accuracy. There were some glaring errors in the Peggie/Fife coverage.