"Darlington Nurses" vs County Durham and Darlington NHS Trust Tribunal Thread 8

[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)
Thread 7, 05-Nov to 11-Nov; SW (day 11), closing submissions

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 now complete. Submissions are being made on November 11th. 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

But I don't see how you can use the Goodwin argument when he was wondering around in his boxers.

It's an interesting point. There was never a formally adopted policy that transwomen are allowed to use the female CR (possibly because even the incompetent managers knew that would be a step too far in law).

If the line is going to be that it is therefore not the policy of the trust but of individuals does that really stand up? Those senior managers - all captured by TWAW - are employed by the trust and in everything they do they are acting as agents for and on behalf of the trust. So if their individual policies are that TWAW and that Rose has every right to be in the CR, doesn't that become the de facto policy and purpose of the trust?

As everyone else is saying, it works both ways. Both the respect, and the right to privacy.

No one in their right mind is going to think one man trumps 300 women.

Plus the privacy ship has obvs sailed.

And if they have to respect his gender identity, by not asking him to move, what were they doing when they asked all the women to move??

I don't get it either. The trust can't write its own policy, it doesn't have any hands. It has to be humans!

I think that's the question the judge is asking. Which humans? And who authorised it?

Thank you @MyrtleLion @MarieDeGournay and @IDareSay for the Tribunal Tweets posting, and everyone else for the discussion. While I'm not entirely familiar with the case law, and we can't see the submissions, I get the impression that the Judge has been asking lots of very sensible questions, and hopefully he's been satisfied by Mr Fetto's answers. Fingers crossed.

I do love when an activist side says 'balancing rights' by which they in fact mean 'the total submission of women'.

There was nothing in any way offered as to how RH was prepared to balance his desires with the needs and rights of those women.

The problem that the TRAs have with Goodwin, was that the enactment of the Gender Recognition Act 2004 remedied Goodwin's complaint.

Thus the GRA fixes the discrimination, and the Equality Act 2010 takes that into account. They really should stop relying on it.

From the Supreme Court's ruling on FWS https://supremecourt.uk/cases/judgments/uksc-2024-0042

63. The enactment of the GRA 2004 was prompted by the judgment of the European Court of Human Rights (“ECtHR”) in Goodwin v United Kingdom (Application No 28957/95) (2002) 35 EHRR 18 (“Goodwin”) and by a declaration of incompatibility made by the House of Lords in Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467 (“Bellinger”).

64. There is no doubt that the EA 2010 was enacted in the knowledge of the existence of the GRA 2004, its known consequences and the case-law which both prompted it (Goodwin) and confirmed the GRA 2004 as having remedied the Convention breach (Grant).

[My bold]

I reiterate my thanks to all those sharing the TT and those knowledgeable souls discussing it here. Each tribunal I learn so much.

The argument seems to be that not allowing him to use the female changing room makes him stand out from other women as a gender, rather than sex, group. And that is a violation of his privacy if he is presenting as a woman. This argument is generally made in the context of the mythical passing TiM, but also applied to those who do not, with it being positioned as interference in his right to present as a woman.

(Note while I’m explaining what I understand the argument to be, that does not mean I agree with it!)

Darlington nurses penalised for trans complaint, says lawyer - BBC News

Today's poster on TT was excellent, but very quick. I would blow my nose and find she'd posted twelvety billion times.

Thanks Myrtle you did a great job! So sorry the recruiter messed you about. Hope you recover fully and find something perfect for you soon.

J: Are we in danger of viewing this though a lawyer's lens, and not applicable to a workplace enquiry? This was an internal enquiry. Ppl who are not lawyers asking the questions.

But this is an NHS hospital, shouldn't HR have at least some basic idea about the relevant laws.

I think some of the purpose/effect discussion has happened because the trust/people within it have done things that meant the claimants were not treated fairly, but the claimants didn't know about them. For example, refusing to make the makeshift changing room compatible with fire regs. And Mr Thacker emailing that RH couldn't be removed from the CR before the resolution process had finished.

As the claimants didn't know about these things, the argument is that it couldn't have the effect of creating a hostile/degrading environment. So then it must have been intended to have this effect. So then the question is who/what had this intention - is it the effect of the trust policy, or the behaviour of specific individuals? (Or potentially both?)

Isn't a room that could catch fire at a moment's notice, a hostile environment, whether you know it or not?

Thanks so much. Myrtle, hoping you are now enjoying some tea and sympathy. I just wanted to say that if SC pulled a rabbit of the hat, I didn’t notice. In the written submissions, perhaps? Or did it hop off into the distance, muttering, ‘Oh dear, oh dear’?

I would have thought so tbh! If I tried to poison your food but you didn't know about it or didn't eat it, it doesn't magically make the poison not poisonous! But maybe in that case the intent to cause harm is clearer!?

I’m still flabbergasted that he didn’t follow them to the old cubby hole.

I mean, i know he had the big changing room pretty much all to himself, but, i thought he might actually be that pig headed.

I was going to write the same thing. Perhaps it only becomes hostile after the fire breaks out and you burn to death.

Thank you all, as always mucho appreciato.

It's an extreme comparison, but imagine trying to say that because Gisèle Pelicot was unconscious when she was raped multiple times, and didn't realise what had happened, it was okay.

Heartfelt thanks to everyone for keeping the rest of us informed. You have been amazing and it's much appreciated.
@MyrtleLion wishing you a steady recovery.

Indeed.

I think one of her rapists did effectively try that when he appealed the length of his sentence. It wasn't as though he'd beaten her or anything horrible like that. Iirc he got an extra year.