"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 agree with Anyolddinosaur that a finding in an ET of criminality would not be persuasive in a criminal court because of the different standards of proof. But I think the difficulty for our judge might be a different problem. Agreeing with NF's Yes on universal breaches of the regs by dint of the policy adopted on CRs would potentially launch umpteen similar ET cases including plenty against the NHS. So most judges would rather not be responsible for that - but if NF is right (as he is!) what to do?

If not this one then when? The next one? The one after? Alternative is to just give up and let the TW pee wherever they like.

imply because it was now POSSIBLE that a man might be in there

Not forgetting that a man might walk in whilst you were in a state of undress. The harm is continuous

No, definitely not.
They had time to cover Andrew’s hyphen (who on earth other than him cares?) and quite a while with various presenters from over the years having a nice reminisce on the program’s 60th anniversary

I am back from my hospital appointment (all good and I may be allowed to return to HRT a week early, plus the antibiotics they couldn't fill three weeks ago have been filled).

Sadly I had a call to say I wasn't even longlisted for a job that the recruiter encouraged me to apply for.

Anyway, I can post TT updates this afternoon (if you want).

Many thanks to @IDareSay and others, if applicable.

Sad sad times @nauticant

From TT

Good afternoon; this is the final day of public hearings in the case of Ms B Hutchinson & others vs Durham and Darlington NHS Foundation Trust at employment tribunal.

When the court resumes after lunch at 2pm, Niazi Fetto KC (NF) barrister for the Claimants will continue his oral submissions. Simon Cheetham KC (SC) gave his submissions this morning; our coverage of the morning is here

https://t.co/Wj3Clx1347

Counsel are questioned by the Judge (J - Employment Judge Seamus Sweeney) as they present their arguments.

We expect the hearing to resume at 2pm.

Our full coverage can be found at https://tribunaltweets.substack.com/p/eight-nurses-v-county-durham-and

We report what we hear in good faith but do not provide a verbatim record of proceedings.

The Workplace (Health, Safety and Welfare) Regulations 1992

Look at the title. It is for health, safety and welfare that we have single sex facilities.

In all my research on toilets, I have never come across anything that would suggest women and men mean anything different in 1992. The idea is ludicrous.

Even in 2003, in the Sexual Offences Act, it is very clear on men and women. Again in the Government’s 2008 Provision of Public Toilets.

From TT

[We resume]

NF: Want to pick up a few points before my next topic. Workplace regs - we have touched on. They are dealt with in FWS, but not by name para 185 - addresses H&Safety regs.

NF: Supreme Court is dealing with the way H&S regs mesh with the EA2010 and what the implications of them are for 'men' and 'women' in the EA. SC does comment on this. Not a full treatment bcs SC dealing with just the one issue, but H&S legislation is part of the framework here.

NF: Deals at 185 (c) with schedule 22. It is Sch22 which provides for the workplace regs to stipulate - as they do - sex segregated spaces, male and female.

From TT

NF: FWS of course deals with possession of a GRC, which is not the case here.
NF: Also see case of [citation - ?Footit?] - issue not the same as here, but it's about what "propriety" means in reg 24 esp 1 (b).

I can see 2 problems if some of these amazing women were in the changing room

1. I'd go for Olympic gold for slow changing because the conversation would be so interesting.
2. I'd need to work out where to dispose of the eviscerated body of any male who decided they had the right to change in there.

From TT

NF: We are concerned here with a different part of the regs, but 24.1(b) is on the way to it. And, highlights 'privacy' as a concern [refs to authorities bundle and code of practice for H&S regs]

From TT

J: Was looking at this over lunch - could not find - was it emailed? Can you send again please?
NF: Of course
J: Not to read now, but to have for consideration
NF: [reading regs] - "must ensure occupier's privacy". It is this last part that brings us to Article 8 provisions.

Edited for formatting. Click Edited to see the difference between direct paste from TwiX and pasting into Notes then pasting here, add to put my comments in italics.

From TT

NF: A communal changing room obviously has only limited privacy, if it's a single-sex provision.
J: This was why I asked SC - we've heard some of the nurses have always used cubicles for addition privacy.

NF: My point is that Article 8 is engaged. Tribunal does not have to rule whether an all-female communal changing room is lawful.
J: If Art 8 engaged, interference is allowed?

From TT

NF: Not quite what I meant. If single-sex communal Art8 might be engaged; but if it's mixed sex, a woman might encounter a man, that is a much greater effect on Art 8.

From TT

NF: Reg 24 - propriety - we say yes, is engaged because changing is to underwear. It might not if it was only re changing coats.
NF: Re Rose Art8 rights - RH always had choice to ask for a private changing space, and we heard from Ms Bailey that Trust had done that in a similar siguation in the past.

From TT

NF: RH was asserting right to be in the CR under the R policy, and the Cs say it was this that affected their Art8 rights.

NF: Moving on to SC points re C credibility. Will not address all, you have written from both of us. SC says C ignorance of resolution procedure goes to credibility (his para 110).

If this ET judgement includes that the workplaces regs use the ordinary definition of man/woman that would be very helpful going forwards!

From TT

NF: This does not stretch credibility - the Cs were relying on management to guide the complainants and indeed the policy itself specifies involvement of management and HR.

From TT

NF: Their engagement with the media is criticised re this. See Ms Hutchison's evidence re this, and note also that not all the Cs did engage with media at all.

TT actually has * *star space did space star (without the spaces I have included here), but MN converted the stars to bold the text - and again when I tried to correct it.

From TT

NF: Re SC para 156[?] - am troubled this cd be an argument re bad faith. This has not been argued and am troubled it should be introduced now. Some discussion in correspondence before the case [gives page ref]

NF: para 47 - not appealing the outcome of the resolution procedure. Seems to be suggesting that C's somehow accepted the report, by not appealing. But - they had no confidence in the process, and I suggest rightly so when you look at Ms Telford's conclusions.

NF: Note also, this hearing put back from June to allow for completion of the resolution process - obviously they did not want to delay things even further by appealing.

NF: We also had evidence from [missed] that had never seen RH behaving inappropriately in the CR. Firstly, 'inappropriate' not defined and secondly, [X] was RH countersigning manager.

NF: "Different shift patterns" is not a reason for disbelieving someone. It is no reason not to believe Ms Danson. Have addressed in written subs.

From TT

NF: Para 65 says KD said RH was undressed - that's not so, it's an error, half dressed. RH admitted to using the phrase, but, says it was in a different context. It is not conceivable that RH used the phrase and KD still be mistaken.

NF: It is not disputed that KD told about the incident contemporaneoulsy, and had to take sick leave afterwards.

They do. Hence the current issue with trans women.

From TT

NF: Re the visits to DSU. Dealt with in written. But background is - RH generally absent from DSU and then is suddenly frequently present, once had knowledge of complaint. This was not simply continuation of a routine.

From TT

NF: 8th July "fetching a form" account - para 75 SC cites Ms Peveller - important to note that Ms P did not think RH had come to harass her as she was anonymous then; but to harass others.