"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

So how are they framing this? Women being worse affected then men would be needed to claim indirect discrimination. But surely allowing the other sex into a single-sex changing room would be sexual harassment for either sex? And men can be sexually harassed by women too.

And this too (though maybe too late for this case): https://www.gov.uk/government/news/new-protections-from-sexual-harassment-come-into-force

From today (26 October 2024), employees can expect their employers to take reasonable steps to protect them from sexual harassment as a new duty comes into force.

Employers now have a duty to anticipate when sexual harassment may occur and take reasonable steps to prevent it. If sexual harassment has taken place, an employer should take action to stop it from happening again. This sends a clear signal to all employers that they must take reasonable preventative steps against sexual harassment, encourage cultural change where necessary, and reduce the likelihood of sexual harassment occurring.

Surely single-sex changing would be a very basic measure against sexual harrasment?

Keenovay A gross simplification I know, but that's why I would love to read a proper study analysing the disproportionately protective stance some men exhibit towards TW.

It would be great to timetravel to a future where social scientists were looking back on the 2020s and asking 'Whaaaat??'

The wave of irrationality that swept over otherwise fairly sensible people and made them say demonstrably daft things like 'TWAW' or 'I don't know what sex I am' will have to be set in a context which will only become clear with hindsight.

Why did people invest in the South Sea Bubble?
What caused the Tulip Mania in the 17th century?
Since lay-people greatly outnumbered priests in 20th century Ireland, why didn't they just tell them to feck off out of it with their misogyny, paedophilia and cruelty?

The answers are multifaceted, as is the answer to how on earth genderwoo took over the way it did. People are weird, and when they group together into societies, they can do some seriously weird stuff...

I wondered a little on the J’s question relating to there being any research on men who identified as women being in women’s SSS. As no one can change their sex, it is immaterial as to how a man identifies. He is still a man. And, if he is in a woman’s changing room, he is a man in a woman’s changing room.

Say a burglar broke into a house. I doubt if him saying he identified as a cat would have people searching for the law on whether a cat breaking into a house was illegal. They would rightly ignore his nonsense about his proclaimed ‘cat identity’.

So, is a bloke parading around a SSS where women undress, and exhibiting alleged behaviour that was bothering the women therein, really being entertained by the J as a different type of bloke or non man. Because his nonsense is being given credence.

Edited: their corrected to there.

Here's JP expert witness report.
https://drive.google.com/file/d/1zk3f00wGvG4MQ4ruuingdg9m3SyoHZ9H/view?usp=sharing
Also available via our Substack if link doesn't come through.

I think thats standard practice otherwise the R legal team are not doing their job. Who could be a credible witness for the R - did Stonewall not offer? They are surely the “experts” given all their lobbying, camapigning and training of our institutions? 🤔🤔🤔

Since there is so much love for JP floating around, this seems like a good time to re-introduce the concept of 'Synchronised Donating' which we have done in the past to express our admiration for Sandie, Naomi etc.

Sex Matters are the obvious beneficiary in this case.
This is their website:
Sex Matters - It shouldn’t take courage to say so
There's a donate button on there.
Nuff said

I'm not sure that is quite right, is it? Naturally an employment tribunal can't impose the legal penalties associated with breaking health and safety law (prohibition notices, fines and, in severe cases, imprisonment - only the HSE and local authorities can take action of that sort). But surely the mere fact of the relevant law being broken can be taken into account when reaching decisions in an employment tribunal? Wouldn't very many employment tribunal cases essentially be determined on the basis of whether employment law, H&S law, or other relevant legislation had been broken?
Surely it isn't necessary to additionally prove that an employee actually suffered an adverse outcome as a result of the law-breaking (although that of course could be relevant for determining the nature of damages etc).
And the facts relating to 'women being more badly affected by mixed sex changing rooms than men' are only relevant for breaches of equality law. They don't need to be proved for the purposes of H&S violations.

I wonder whether the evidence relating to the women's distress has more bearing on the issue of whether it was reasonable for the trust to take such an aggressive stance relating to the actions of the nurses (the letter they wrote, going to the press)?
We've heard evidence that their investigation essentially prioritised Henderson's grievance and focused on putting an end to what they seem to have viewed as unreasonable behaviour on the part of the nurses. To defend their perception that the nurses were acting unreasonably, they would presumably have to deny that they were suffering from a situation that was distressing, stressful and needed to be resolved properly and promptly.

Edit - typo

I'm still baffled as to the Trust's position in this hearing, presumably it's clearly set out in the submissions somewhere. It has to be mainly a dispute as to scale of the damages, they are not arguing that the policy was justified. Could their motivation be that they fear that if the awards are large, the other 200+ nurses who used that CR will put in claims? And could that be the start of an avalanche of claims from elsewhere in their remit? Note what Jo was saying this morning - there's also the fear that it MIGHT happen - so even if you didn't have a Rose on your ward, you have a cause of action. However, poor SC gave up pretty fast this morning.

I bet the Trust never even considered how it would look to observers and especially the panel that the Trust thought it acceptable to not send the managers today.

After having a full row of managers there for the whole thing none of them turning up today really does help make the nurses case for them.

The Trust are idiots.

Agree on the last bit - he retreated abruptly from an articulate expert feisty witness. More briskly than Napoleon from Russia.

Potential arguments from the Trust (not they are particularly good)

• The policy was sound - it was based on best practice at the time
• The nurses are making up/exaggerating incidents
• The nurses were unreasonable in not following complaint procedures/ going to the press
• The detriment was minor - it was merely discomfort in using the changing room
• The detriment is not based on sex, but belief ie gender critical and so they have made the wrong claim
• The discomfort is not based on adequate evidence

The cat-loving KC Colin Wynter also stumped as to what the defence is. He now says,
'If the "defence" is that women are happy to undress in the presence of men & if such defence is made out, my entire, shaky understanding of women will be upended, I will sheath my pen, give up writing about genderism &, in penance, eat a plate of raw beetroot smeared in marmite.'

Yes, there are certainly elements like this flying about, but to me (not knowing anything about it) it looks like small money. They know they are going to have to cough up, so is it not cheaper just to do that and not go to the tribunal, if all they are doing is trying to keep the scale of damages down? I do wonder if they are in fear of a domino effect

I fear that the lack of attendance from Darlington HR team is more prosaic. You don't expect these people to work on a Friday do you?

It is very common NHS practice for managers to work skive from home on a Friday and let the frontline clinicians crack on. For full dislosure, this isn't always a bad thing from a clinical POV unless you need an answer to something.

This is going to be critical in the judgement. If the Trust cannot weaken the experts report, or provide its own expert then the judge can rely completely on JP's report as impartial evidence. The only point that she was asked to address was:
It is disputed whether women are generally more sensitive than men to being
compelled to undress in front of a person of the opposite biological sex and
therefore more likely to suffer fear, distress, and/or humiliation caused by the
application of the PCPs.

I'd expect that women are more sensitive to be included in the judgement as a fact, which then can be rolled out to any future tribunals.

Excellent points.

Where after all is the empirical evidence that people mind about being burgled? And that it matters if they mind to the point that burgling should be illegal?

I would really like to demand the empirical evidence that women don't mind about having to undress for the gratification of a man with a gender identity, where does that exist? Why does it always start from a baseline of it's ok for men to do this to women/use women until absolutely conclusively and extensively proven (in a way that those men agree with) that it's not? And doesn't this automatic bias in the interests of men to the detriment of women prove over again the binary disadvantage that requires women having strong legal protections?

How very rude! Surely the rule is if there is a man in the party he goes in the front seat by default because then his long legs and manspreading caused by his massive balls can be accommodated, and in addition he is available for offering navigational and other driving advice.

Perhaps by putting Rose in the back seat someone was trying to score a subliminal point, “No, honestly , thats plenty of room for a little one like me.”

It could only ever be about as correct as seventeen words on the subject could hope to be, if that - it's definitely not the last word.

surely the mere fact of the relevant law being broken can be taken into account when reaching decisions in an employment tribunal?

This is an interesting question, which I think was explored in more detail in submissions in the Peggy tribunal, was it not? I'm looking forward to seeing how that turns out.

Surely it isn't necessary to additionally prove ...

Belt and braces, perhaps? We'll know more about how NF is going to fit it all together on Tuesday.

I'm fairly sure that women being more affected by men in their changing areas than vice versa is not a fact subject to Judicial notice, so it does have to be given in evidence. Given that it was given in evidence, I infer that NF is going to need it in his submissions. And I'm working backwards from there about why.

JP's expert witness report is a thing of great beauty. 💞

Team Away Day on how to censure those who refuse to wear a rainbow lanyard.

I'm about half way through and she's incredibly thorough.

Apropos of not very much, I'm reminded of how different social classes distribute themselves in vehicles. If two married couples travel in a car together: if they're upper class, it's man and other woman in the front together. If middle class, the two men in the front, and if working class it's one couple in the front and the other in the back.

I didn't make the finish line, but she certainly is! 😀

That wasn't just pulled together in a tea-break.

I’d like to know why the Local Councils building control officers haven't given evidence

Their incite into the Building regs 1992 is invaluable in these cases.

Whilst most building control is outsourced all councils still have at least one person ( BC officer) who has overall control

It is, and they don't seem to have contradicted any of her inferences from the studies. So next week will be very interesting if they sum up where all this has got us