"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 was very excited by this:

Did the unwanted conduct relate to the protected characteristics of sex
and/or gender reassignment?

361. We have already answered this when considering Rose’s personal conduct in using the changing room. It is an inescapable conclusion that the Trust’s unwanted conduct related to both characteristics. The TIW policy is entirely about gender reassignment. It necessarily follows that that by permitting a trans woman to share a female only changing room with female colleagues in accordance with that policy is directly and inextricably associated with gender reassignment and sex. Those characteristics are both at its very heart.

(end section)

I previously had a long debate with @MyAmpleSheep about whether a person without the PC of GR could claim redress for discrimination versus a person with that PC (I was of the view that the claimant must have, or be perceived to have, the PC, or be associated with someone with the PC).

I have never been so glad to be proved wrong: I owe you a 🍺

Trans reddit seem to think that the case was won because the nurses were not offered alternative accommodation

Reading through the judgement now, I think it has a great deal of empathy for the nurses.
220 Although we did not consider the evidence before us to be sufficiently reliable to find as a fact that Rose stared at anyone, the different life experiences of women compared to men in general, and in some cases the particular experiences of some individuals helps us understand and give context to why those who were deeply concerned by Rose’s presence in the changing room believed they were being looked upon or watched.

222 That we found that Rose, personally, did not behave improperly whilst using the changing room, in no way diminishes these very real and genuine perceptions of the Claimants, all of whom were fearful of the risks at the very least, to their dignity, bodily integrity and privacy.

One can have a broad mindset on the rights of transgender people whilst at the same time raise legitimate concerns about the effect of having to share a space whilst being exposed in one’s underwear in the presence of someone of the opposite biological sex.

I want to copy and paste this as a response to every TWAW 'be kind, just want to pee, transphobia' post.

@katmarie - thank you for those - such a sympathetic judgement.

Trans Reddit generally have a grip on reality that could best be described as “tenuous”.

See also: their understanding of the law.

just keeps getting better and better

Great news, so pleased for them

I hope the nhs takes note more generally

They were at one point offered alternative accommodation. Unfortunately that accommodation did not meet fire regulations, wasn't big enough, and the trust didn't want to spend the money fitting it out correctly. Had the trust offered suitably sized and located, safe alternative accommodation, the outcome might have been very different.

There is one poster there who truly does know what they are talking about - which makes me surprised that they haven't squared the circle of cognitive dissonance yet. The others...less so.

What impact, if any, will this have on Sandie Peggie’s appeal? Surely a big one?

Sorry about the wall of text, but this shows really clearly the poor process and the bias of management. Emphasis mine.

71.Responding to Linda Watson’s email of 17 August 2023, Lesley Smedley agreed
that the matter needed to be addressed. She explained that she had emailed Tracy
Atkinson but that Ms Atkinson was not back from leave until the following week
[B2/268].

Another month passed without anything being done to address the
concerns raised by members of staff in Theatres or DSU. In the meantime, by now
about a month or so after she had first raised her concerns, Mrs Hutchison asked
Sister Quinn whether anything was going to happen about the matter. Sister Quinn
told Mrs Hutchison that she had taken the concerns to senior members of the
surgical team, which Ms Hutchison was given to understand consisted of some
Band 6 Sisters and a Matron.

72.On 21 September 2023 Lesley Smedley emailed Linda Watson, Jody Robinson
and Tracy Wainwright, asking:
‘has this been sorted? I have flagged with Tracy A but not sure if anything has been
done’. [B2/266-267].

73.We find that to be a surprising email from Ms Smedley in the circumstances,
especially in light of her own email of 13 July 2023, where she had asked the
Theatres managers to ‘bear with us as we make the arrangements’ and her further
email of 17 August where she agreed that the matter needed to be addressed.
The natural inference to be drawn is that Ms Smedley had expected someone else,
other than her, to have ‘sorted’ the matter. She had made more senior people
aware of the concerns that had been passed to her by Theatres managers.

The
expectation was that someone in HR was to do something about the concerns, as
she had expressly told the theatres managers to leave it with them. It is plain
however that nothing had been done by HR in the ten weeks since concerns were
raised at the 12 July 2023 Wednesday meeting regarding the ‘sensitive
conversation’, other than to suggest that something be done to look at the
‘awareness’ of staff (paragraph 67 above). That also meant that nothing had been
done by operational managers in either Theatres or DSU.

74.On 22 September 2023, at 10.31, Tracy Wainwright responded to Ms Smedley’s
question as follows:

“No this has not been addressed. It was mentioned that it was an education talk
but certain staff have their views and these will not change with
education/awareness. Staff struggle as this member of staff is not transitioning and
a lot of our international staff struggle with her in the female changing room.”
[B2/266]

75.Up until that point in time, the only HR person Ms Wainwright had been in
communication with regarding Rose’s use of the changing room had been Lesley
Smedley. From this, we infer that Ms Smedley spoke to Ms Wainwright soon after
she (Ms Smedley) had raised the matter with Tracy Atkinson on 13 July 2023. Ms Smedley reported to Ms Wainwright that someone from HR would speak to managers about holding an education and awareness talk with the teams. The clear implication of this was precisely that identified by Ms Wainwright, namely that the intention within HR senior management was for someone from HR to ‘educate’ staff by making them aware of the rights of trans employees.

No it wouldn't. The ruling says that Rose should not have been in the female changing room.

from BBC 12.56 (quoting the judgement I think?)- my emphasis..

The nurses had complained of Rose's conduct in the changing room, but the tribunal panel found their allegations to be unfounded.
"Rose was simply doing what the Trust permitted Rose to do, to act as, and to be treated as a trans woman which for all intents and purposes meant regarding Rose as a woman," the panel said.
"Whether Rose ought to have had more insight into the effect on female colleagues of having to change to their underwear in the presence of a biological male is another matter."

(my view- It's about time these men who lie about being women are held to account and the law changed to recognise their abuse of women as a crime)

So good to see this laid out so simply and clearly!

When reading this in comparison to the Kemp judgement it brought to mind this quote:

"Truth is ever to be found in simplicity, and not in the multiplicity and confusion of things." — Isaac Newton

the BBC link of 12.56 is here
https://www.bbc.co.uk/news/live/c62nwl7j44gt

Looks like the BBC have amended the wording now - well done everyone who complained about the misquote.

I don’t agree with every conclusion in it but skimming it just now it’s a really thoughtful, compassionate judgment.

I want to have Sweeney’s babies. My ovaries are twinging at the intelligence and carefully considered judgment.

I'm not sure, if an alternative changing room had been set up, what would have stopped Rose or another TIM from following them in there.

270 We accept – as does the Respondent – that women are more likely to have experienced sex-based harassment and sex-based violence than men. It will come as no surprise to anyone that this is so. The risk posed to women generally by this state of affairs causes a reaction in many women and leads them to adjust their own behaviour according to the circumstances. Women do not have to experience sex-based harassment or violence personally. The experiences of some women can and does have an impact on others. Depending on the circumstances, a woman might experience fear and distrust in the presence of a man even though, objectively, as a matter of fact, the man is an entirely innocent actor. We take an example that we can all recognise, of a woman walking alone on a street at night, whereupon she notices an approaching male. She crosses the road to avoid the man, holding her keys in her hands in the event she needs to defend herself or she phones someone or pretends to do so. The approaching male is a perfectly decent and innocent person with no intention to harm anyone and is oblivious to the woman on the street. He would feel offended at the thought that someone might regard him as potentially harmful. But it is not the individual’s character that dictates the reaction in the woman. It is not the man himself but the fact that he is a man. The difficulty for the woman in this example is that she is unable to police the character or the intent or motivations of the approaching male. She is fearful of the risk presented in the knowledge of women’s experiences in life generally. Her reaction does not depend on personal experience, although of course it may be explained by this. The Tribunal is able to draw on its own experiences of life in recognising these fearful, defensive, precautionary traits in women in certain circumstances. They are not irrational reactions. On the contrary, they are entirely rational, based on the lived experiences of other women generally. Many women will feel anxious and may take extra precautions in what men might regard as normal situations.

Nothing, and he almost certainly would have done if the women had left him in his own in the main one.

Despite the fact that it would almost certainly have been a broom cupboard.

😆

That’s as clear as a bell. I knew he wouldn’t let me down. I had a good feeling about him.

I hope Kemp is feeling suitably chastened.