"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

Reading this. NF seems to be doing a fairly good job. And the judge appears to be nailing down all the points, presumably so there's no appeal. Or ambiguity.

That's how it's coming across just reading it, though.

Thank you.

But as it's a first level tribunal at least it hasn't set a precedent.

From TT

NF: And then on top of that the 'inclusive' posters turned up on the door, just when they had been told they were going to be moved away. Posters obviously hostile, intimidating, offensive, degrading.

NF: Effect, in my submission, is made out on the evidence. As for purpose. We submit that that is also made out - detailed in written submission. Pattern is the same all through the process.

From TT

NF: Every time Cs raise concerned they are ignored and told not inclusive. And this was the purpose of the resolution process. Mr Thacker had already decided that the Cs would not get alternative accommodation organised for RH [gives several refs to bundle]

NF: Even before the resolution process began the outcome was determinted.
J: Whose purpose though here? Can a Trust have a 'purpose'
NF: Not for the Cs to determine individuals?
J: We have to look at the purpose of the individual, in the context of harassment.

From TT

J: We are going to have to decide this - hence me asking
NF: There can only have been individuals, and whoever they were, there was a purpose to the process. I was able to ask Ms Williams but she was 'the process witness'

From TT

J: We are going to have to decide this - hence me asking
NF: There can only have been individuals, and whoever they were, there was a purpose to the process. I was able to ask Ms Williams but she was 'the process witness'

From TT

J: Well there was Mr Thacker
NF: Yes and I did ask him re the predetermined outcome.
J: Suppose we do have to identify individuals, who do you say we should consider?

From TT

NF: Mr Thacker - email about outcome is clear, even tho Mr Scanlon's email to him says the opposite -that the female employees should not be the ones moved.

From TT

NF: And Ms Williams - she had the exact detail of the Cs email, she knew the policy wd not allow RH to be moved, but she kept the policy away from the investigation to prevent conclusion on that point.

I'm thinking more of historic claims from before FWS. Obviously they should have changed policy after that

From TT

J: If the policy had been shown at the start? I understand you to be saying, the policy was not able to be reconsidered. I'm asking, what if it had been on the table but had been confirmed? What is the relevance of the policy not being in remit, when it comes to purpose?

NF: It's the difference between the Trust decided they would grapple with the concerns the Cs raise, and what actually happened i.e. that they wouldn't.

J: So as I asked SC, about 'purpose'?
NF: [missed but 'yes']

NF: This is the context where the prohibited purpose is to be considered. Ms Williams put questions which are by structure and nature leading to and likely to have an intimidating effect, on Cs and witnesses

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.

I agree with you. FWS and Supreme Court made the situation clear and yet organisations resisted changing their policy and are still resisting. This judge can only conclude that they are in breach of the law. So it is not entirely his decision. So whatever happens after that is not solely his responsibility.

From TT

NF: It is not just the questions - there is the correspondence. This was not a disciplinary process, or even a neutral investigation - resolution process shd have been about getting to the bottom of things.

NF: For example the Qs for witnesses - structured, all about 'how did this come up' 'when' 'who told you'
J: If I had a penny for every time I say irrelevant Qs in such a document I'd be rich. But you say 'purpose'

Although I think he will come under a lot of abuse from usual quarters. But if the wider public are becoming more aware of these issues with even the BBC reporting impartially (hopefully) then that will change.

Actually it's been clear since at least since Forstater in 2019, but I concur that FWS should have led to an immediate and clear change of direction.

From TT

NF: Yes, to discourage the complainers. And we see email to RH part way though, saying how many have withdrawn. I do encourage you to review the responses of Ms Coutts here.

NF: The posters as well - we know from Ms Watson that it's not known who put them up - when she reported them to Ms Coppock, she was told to leave them up. This is again purpose
J: How can it be? If Cs didn't know?

Yes, that's why NF is right. But the consequences are immense, and we'd end up paying a lot of it

From TT

NF: Purpose of Ms Coppock.
J: Leaving them up was purposed to create intimidating environment?
NF: Yes. And they had to go to director of nursing to get them taken down.

From TT

NF: And re the issue around solicitor representation. Cs were already aware, litigation already on foot, Cs very naturally mistrustful. Very much part of the picture, given the history. Cs mistrustful with good reason re Trust intention and processes.

J: How does refusal to allow solicitor related to sex?
NF: The whole process relates to sex.

Didn't Rose say that she DID know who'd put them up? So NHS Darlington could have found out if they'd tried to, but they did not do so. Doesn't that show intent to harass not countered? If I remember right, he said they were supporting him

Exactly. And if Stonewall hadn't been so successful it wouldn't be so costly because transvestites would be using the men's if this had been nipped in the bud earlier.

I'm sure this is why they kept claiming that this is why it's rude to ask about genitals. If people knew that the vast majority were intact, there would have been a greater outcry.

From TT

J: "No we don't allow solicitors in internal enquiries" has the proccribed in and of itself?
NF: yes in this context. Not bcs the resolution procedure should have allowed solicitor but bcs litigation has already begun and covers the same matters.

J: Not sure that is right. Most internal processes do not allow solicitors, but specify colleague / union. Perfectly usual and understandable. And is what happened here. Yes context, but what makes this particular conduct related to sex?

From TT

NF: Not sure I can say more on this, beyond stressing context again. Policy yes forbade solicitors, but here litigation already mooted, it was another blow to Cs
J: It was not about representation but attendance? Letter says representation?

NF: I think I perhaps discussed that there's a difference between 'attendance' and 'representation' but yes the letter says representation. But point is, Cs wanted solicitor present, in context where trust lost.

From TT

NF: Re victimisation. Will respond to a couple of SC points in subs. para 134 - this was Nov 2024. If this is the critical date, if dates are to matter

Though that reminds me of Helen Joyce quoting someone she was talking to a while back, who said 'That can't be happening, otherwise it would be on the BBC' (!!!)