"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

From TT

J: Is this in the realms of purpose? Not effect?
NF: That was her oral evidence.
J: Can you remind me?
NF [reads]
NF: It didn't stop her experiencing the effect on her working environment.
J: She said [reads] not harassment of me, but wonder if he'd done it to harass others, about being in the papers.

From TT

J: Clear she is saying "not harassment of me"
NF: Yes I wanted to be sure you had read the full evidence
J: My understanding is - Ms P anonymous, so RH cd not have had PURPOSE of harassing her, but, nor did it have the EFFECT of harassing her, she says it didn't.

From TT

NF: This is July 2024 and she knows RH has come "looking for a form" that doesn't exist and RH knows doesn't. Course of conduct, context.

Even if you know that Rose didn't know that you had complained, you would still recognise that an intimidation tactic was being played out and probably feel harassed by it.

From TT

NF: para 73 of SC sub - I think error relaying RH evidence - I say there's an inconsistency. RH says in WS went voluntarily to DSU, but in person evidence RH says was taken there. To look for a form where it could not be found - but where Cs could be found.

From TT

NF: Will now come to the harassment allegation re the response to Cs complaint. Aggregation of impact across the history of how Trust behaved when Cs raised concerns.

NF: My written sub para 65 et seq, summarised at 103-104.

Did a bit of gardening and passed the link around to others. Thanks to all here for the reminder.

Just got in so I'm very grateful to @Justabaker for TT, and @MarieDeGournay , @IDareSay and @MyrtleLion for keeping us all up to date.

From TT

NF: Re effect - what's important as this dealing unfolds is what was fed back to the Cs - what they knew at any time. Decisions are made about their complaints but not dealt with, and Cs cannot understand why and not explained.

NF: Have dealt in detail in written sub. It's clear at each stage I submit that Cs are essentially getting nowhere. And insofar as they get answers these are negative and ideologically slanted.

From TT

NF: From July 2023 Ms Hutchison and others are reporting concerns to Ms Quinn - emails then to Sept2023 show concerns among theatre and DSU staff.

NF: But message that comes back to the Cs was, as Ms H says, Trust has heard their concerns but will take no action bcs inclusivitity of Trust.

The problem is the TRAs have consistently argued that the Supreme Court judgement only applies to a very small specific piece of equalities law, and that all other laws mean how someone self IDs when they refer to man/woman male/female.

When was this one as I can’t remember anything in local media or anyone I know mentioning it? Although the Sheff Star is a bugger of a website.

From TT

NF: Rest of 2023 / early 2024 - still no action. Feb 2024 letter sets out concerns again, very clearly; and we see HR staff saying "exaggeration" and no action taken.

NF: Ms Bailey's statement - she is told that compromise is not an option, the only thing that will be allowed is to make the Cs move out of the CR.

NF: So by March 2024, after the meeting with Ms Gregory in Feb and the letter in Feb, the Cs decide they must press the issue not drop it (tho being pressured to drop) and they are only getting negative messages.

NF: Ms Atkinson describes the March letter as 'concerning behaviours'. There was a mtg 15th April and we've have evidence of what Cs were told as a result - be inclusive, compromise.

Apologies, i think i misread your post.

From TT

NF: So by May mtg, Cs are demoralised, Their letter is descibed as a petition, the way they raised complaint is criticised, Ms Atkinson can only promise discussion, explanation. Cs have been there before.

NF: So finally they issue proceedings, and talk to the media. We know letter around 23rd May (Thacker to Scanlon) that there is no question of Cs getting what they want [gives page ref] - says asking RH to move is neither feasible nor reasonable.

From TT

NF: So the Trust launch a resolution process. Took 11 months. Found that the facts were as stated, the policy was there. Exactly what the Cs had had all along. Complaints ignored and go nowhere. The answer is already "no".

https://www.judge-priestley.co.uk/site/news/articles/asking-transgender-worker-about-her-underwear-was-discrimination

2022

From TT

NF: Ms Williams did not even give the investigator the policy, until it was requested. So what was the purpose of this process? Its effect was demoralising - just like everything that had happened before.

From TT

J: Section 26 doesn't mention 'demoralised'. Says, must create the proscribed environment.
NF: Yes. Cs repeatedly told they are not inclusive. When action is finally taken, it's to put the Cs in separate and unsuitable accommodation. 1 cubicle between them, far from locker room.

It’s just sophistry. Anyone who read the SC judgment would be in no doubt of its breadth and that anything pertaining to single sex services or facilities was covered by it.

Has this been appealed? I think it's been established (possibly in the SC judgment, maybe elsewhere) that the correct comparator is a biological man in the changing room.

It is. But the frustrating thing is that so many orgs (and the ScotGov) are sucked in by this and waiting guidance etc to tell them what the law has said for years

From TT

J: [a ruling] says that those words in sec26 are carefully chosen. Which words do you claim here?
NF: Hostile. It is not necessary to have them all?
J: No indeed. But it's important not to gloss over the words of the statute.

NF: Of course judge. I say, it was hostile - also offensive and degrading, in terms of its effect. But also intimidating. Cs have been left in no doubt what the R thinks of their view. That they are not inclusive, they need educating.

From TT

NF: This ran on till the July. It turns out, not even compliant with fire regs. Hostility, intimidation, degradation, offence from the actions of the Trust.

J: Re the fireproofing issue. You say they may not have known till September 24.
NF: That was when Rs knew, but Cs were not told this until disclosure for these proceedings.
J: So re effect - is it a factor, if they didn't know?
NF: No of course.

This is one of the few cases taken by the trans person as claimant, who gained a limited win. The employer didn't (want to) appeal so the judgment sits on the books as is, despite the obvious problem with the comparator used.