"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

We are witnessing an attempt to make “a silk purse out of a pigs ear”

TT

A narrative forming. Allegation of harassment because of failure to address concerns. But not explained.

Later, a couple of allegations relating to letter. Felt intimidated but no attempt to explain how this amounts to harassment of the claimants.

For the love of - his "underwear was displayed" (nice passive use of language there) because he displayed said underwear of his own volition and will, holes and all.

"Because he has the anatomy that requires them, unfortunately"

NOT HARASSMENT
JUST CHANGING

should be the sign on the new single person changing facility for people who don't want to use the facility for their own sex.

TT

4b to 4h. Where is the all important requirement to share the CR with RH. Didn’t amount to harassment. Don’t know why they haven’t
(Interruption of tannoy announcement)
The written submissions don’t address the issues, all we have is a narrative

Could it be possible that they haven't pleaded the case correctly?

TT

Para 100 a particular allegation. No one knows who - they were ratified by trust management - we don’t know. No one knows who saw the harassment

Trust conduct as a whole cumulative approach ; case is put as individual claimants . None of these amounts and falls short of standards of harassment.

Right. I’m furious now. Fucking sophistry. Off to donate .

I feel like this is an extension of the bananarama excuse.

If you'd explained it differently, raised it together or separately or earlier or later, written it backwards, told it in song.......

THEN we might allow you to bring up a problem.

TT

In terms of victimisation. Claims of going to media, Mail and Sun articles. But the causal link to that detriment is the letter following. Clear from the letter , going to the press and telling stories about colleagues.

TT

It has felt at times 2 hearings going on. Trust we stuck to evidence. A demonisation of Rose. Claimants are fighting a public campaign about policies and NHS trust treatment of women

TT

But the reality of the case is around allegations and specific task looking at the issues .

[2 minute silence]

Have not missed the irony of your name in this particular post

TT

J I want to check a few things. Para 20 you say procedural but not amount to conduct. Also p84 . I wanted to understand
SC section 26 amounts to conduct
J allegation relating to Trust. Does that amount to conduct?

That is a great analogy from the Judge, of course it would be unlawful.

TT

J at what point does it affect?
SC when implemented.
J so when someone acts in accordance with policy
SC yes
J so an employer has a policy approved and eg doesn’t employ black people

Even if the policy is not enacted on, it just sits on the shelf ..?
SC I accept it creates an offensive environment. If we come back to our case it draws attention when they hear about (missed) Rose

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Seems clear enough to me.

TT

J para 24 conduct ref single sex CR?
SC yes
J was the policy in accordance with official guidance?
SC we accept there was a lot of guidance EHRC, NHS etc. not a single source

Not all consistent with each other.
J in terms of ‘related to’ must be relevant to a protected characteristic?
SC could be even the person alleged of carrying out harassment

TT

J a claimant must establish the conduct was unwanted. Relating to a PC?
SC I suggest they do. Low hurdles.
J does a claimant have to establish a prima facie case of intent?
SC agree a shifting burden of proof. If a purpose then that has to be clear in their case.

TT

J shifting burden seems to me to relate to purpose. That leaves the burden on the Respondent. As far as section 26 it seems that’s the area

J para 14. Nothing in NF’s argument?
SC I say it’s not engaged
J do you say not engaged
SC no

TT

J article 8 , 49/3. Do you say Rose’s article 8 rights were engaged?
SC yes a factor
J to what extent do we need to get into article 8?
SC just a footnote
J Mr Fetto?
NF yes article 6

Rose being in the changing room was her exercising her rights to a private life.

This is ironic in a way that's just beyond.

TT

J where does it fit?
SC Rose simply being there. Article 8 private and family life ; gender identity.
J one’s always conscious where fits in but where does right to private life fit in? This is a communal area where people are getting changed

TT

J before Rose, any article 8 rights needed.
SC all biological female it’s doesn’t arise
J why not?
SC an article 8 for both

TT

J by Rose exercising art 8 rights and asked to change elsewhere an infringement?
SC potentially