"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

[I like that Rose is called Rose and referred to as Rose - there's such an incongruity to it!]

Not in the slightest! Listening to two men discussing a man and his conduct in the women's changing room is infuriating.

Liked this bit from NF "A catalogue of rebuttal, trivialisation , obfuscation, delay and intimidation."

HR depts will be extremely grateful for the time limits on discrimination claims.

J let’s say someone fell over in CR and Rose helped them. Does that conduct relate to sex?
NF it’s all part of using the CR.
J there are complaints of harassment relating to conduct. Asking are they getting changed? Is that related to sex because Rose is bio male?
NF Rose is bio male and in F so can’t be divorced

I’m guessing this could be a point of appeal either way. There was some discussion about whether or not the judge in a civil case can decide that a criminal law has been broken. Do we know if there is any case law on this point?

J is it enough ‘are you getting changed yet’
NF Trust allowed Rose to use CR. This claim was arising - traumatic, biological male in CR. Encounter times in CR where affected.
J a sufficient connection with sex
NF yes

['a male by any other name.....'😄]

Contrast with Fife - several of us went out of our way not to refer to Dr Upton as Beth, as did NC IIRC.

Breaking for lunch back at 2

CC is not a registered charity but it is a not-for-profit organisation. The thing that sets CJ apart from other crowdfunders is that they verify all recipients. For individuals managing their own case, the verified person to receive funds must be an instructed solicitor. Where the case manager is a charity or not-for-profit like CC, they can be verified as a company anbd receive the funds from CJ cases directly. What CC is doing is legitimate and in this case I think they deserve donations. But it's important for them to be as clear as possible because donors (like me!) will do their own due dilligence before deciding whether to donate or promote the cause.

In CC's case the CEO and other staff are lawyers so they will recognise the need for transparency and clarity, I'm sure. I'm saying all this explicitly so that if anyone related to the case is wondering how to increase the rate of donations, then they may want to consider their approach.

I liked NF's mention of vicarious liability in respect of RH's behaviour.

Interesting if they are not saying GC beliefs at play here. Is there more than one way to skin a cat?

Rose could only have been in there because of gender reassignment. Moving on to process.
J I have questions. Let’s have lunch now back at 2pm

LUNCH back at 2.
I won't be able to transcribe later - here's the baton, for whoever to take over

I have only watched a few ETs before and some in Scotland so different approach. I can’t recall another Judge asking so many questions during summing up.

I really like how he is going through the elements one by one.

Oh this.

Two men discussing what consistutes 'reasonable use' of women when another man desires it, and when women might be permitted to wish not to be used or find his use of them acceptably distressing enough to be considered.

The optics are appalling. And doesn't it say a lot that neither man seems to have been able to clock this.

It makes me so angry - I keep imagining scenarios where a few of you fab lot were in that changing room……….

I think it’s a good argument the Trust accepted the belief GI trumps sex, and produced a policy that was not lawful.
It also shows the Trust forgot about the Sex PC.

I think that was a mistake. He should have said that every case hinges on the facts, and his submissions are relevant to this case only. Otherwise he's grandstanding, which is not in his clients' interests.

In essence: is a well behaved man in the women's changing rooms where they are undressing causing non consenting women enough distress and humiliation to be an issue?

Y E S.

Not to mention: witness how bloody hard it is to get anything done when they're not well behaved!

It was a question in the Leonardo case. I misremembered it from Peggie, but pretty sure now it was Leonardo. We don't have a judgement on it, and no precendents were cited in those submissions, that I recall.

The case that comes to mind is that of Oscar Wilde. Him losing his case against the Marquess of Queensbury opened the door for Wilde’s prosecution under criminal law rather than civil.

It’s not exactly recent though, so I don’t know if there’s something more relevant.

@NebulousSupportPostcard Ok I accept that is theoretically possible. However they HAVE appointed solicitors.

On the question of whether a judge can decide the law has been broken there are different standards of proof in civil and criminal law. IANAL but maybe it's open to him to say on the balance of probabilities the law has been broken while not commenting on whether it meets the standard of criminal proof.

This, again and again.

I can't think of a GC tribunal where the judge has been female - have there been some? And is there any requirement for female representation on tribunal panels?

I was able to log in for the last segment and I like the judge. The notes are vv WTF to read because of effing course we should never have regressed to a position where such basic issues are being picked over. But the tone of the conversation as it takes place, is much more that this is a grappling with the minutiae of the law, and following through the arguments to check that they are structured in a way that can be followed through to a meaningful conclusion. In some ways it sounds like an academic viva, with Mr Fetto's arguments being rigorously analysed and tested.

There must be so many women affected by this over the years - need some sort of class action, no win no fee sort thing - not serious suggestions but every policy everywhere seems to have been discriminatory and not fit for purpose. The unions would have a field day if they were GC.

Judge Goodman. Bailey, I think. She had a cat that appeared on screen and I got to tweet about it.