"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

Yes. I feel much more optimistic now after the bbc lunchtime news. Probably naively!

From TT

NF: at 139-140. It's asked why no Qs about detriments and protected acts. Ms Atkinson 15th April - were about the complaint of March and we mean, Ms A's criticism of the letter. Link self-evident. Also the posters. RH gave evidence on that.

NF: I could not ask the person that put the posters up, as did not come to give evidence. But RH gave evidence that they went up bcs of the media.

Can the trust have a 'purpose'

Interesting point. It sounds like the Judge is skeptical that an organization can have a purpose distinct from the intentions of the individuals within it.

I see a parallel with "institutional" racism, or an ant's nest. Each individual ant seems to wander aimlessly but there is obviously purpose and structure to the way the entire nest works. Institutional racism doesn't require any employee or officer to be racist for the organization to have that effect.

It's clear their "purpose" was to defend RH at all costs. But which individual(s) made that decision?

Scanlon's email and any policy set at the Board, which should be in the minutes, as a consequence may hold a clue. Every Board member who voted in favour, if it went to a vote, is culpable.

From TT

J: What is protected act D?
[J and NF discussing items off a list but we don't have the list in front of us]

NF: I omitted one point re SC subs - para 120 - second PCP is denied because there was consultation - not with users and in any event evidence of Ms Bailey and Mr Moore was no help. Mr Moore 'inherited' the policy and Ms Bailey not involved. We did ask, but no evidence provided.

NF: That's my submissions
J: Let me check my list of questions.

J: SC subs para 7 - last sentence, "reserves position" - what do you propose?
NF: We will take stock [?]
J: You're asking us to take account of the statement prepared for the grievance resultion?
NF: Yes

J: You said you put your observations on Art 6 - what do you say to SC subs re case of Kilcarney? In a nutshell, SC says 'not engaged', because not the same situation - disciplinary vs grievance investigation?
NF: Am not suggesting it is - I think my skeleton is clear?
J: Just double-checking.

From TT

J: Para [missed] of NF submission. This is about shower cubicles. Want to check re the evidence. The shower room have lockable doors?
NF: Yes

J: I understand your point - the only way to get privacy in the CR was to misuse either the shower or the toilet cubicles and have an infection risk. Is that evidenced?
NF: We see talk of infection risk with the temporary CR

So much for only half hour to go...

From TT

J: Is this something we have to take into account? We know some women did use the cubicles?
NF: My point was really re whether the nurses had to use the CR, change communally. There is no evidence it was ever policy for nurses to use the toilets or shower cubicles.

From TT

J: Your para 27, re the PCP. Are we to treat these as separate PCPs?
NF: I will take instruction quickly
J: It does say 'each'. Are we to look at each separately and the combination? I ask bcs we have to evaluate each PCP to decide whether it creates disadvantage.

I was looking for the definition of Harassment wrt to "purpose" and "effect" and came across Law Soc guidance:

(my bold)

"Harassment is defined in section 26 of the Equality Act 2010 as unwanted conduct related to a relevant protected characteristic and which violates a person’s dignity or has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment."

https://www.lawsociety.org.uk/topics/hr-and-people-management/understanding-workplace-harassment

Is it different under Protection from Harassment Act 1997 ?

Or is there some other reason that the Judge wants to nail down who had the purpose?

From TT

J: So the disadvantage here is the fear and distress caused by changing with a biological male. So for example, looking at consulting with users versus consulting the union?

NF: My example was of someone already getting changed and in her underwear and a man walks in - distress even greater than if she had known in advance it might happen.

From TT

J: Lady Hale has discussed how a PCP might interact with another PCP. I am concerned that our analysis would be difficult if we have to look at each PCP entirely separately
NF: I tend to agree

The people in the gallery are dropping like flies, there is around half left.

From TT

J: Seems to me that PCP one is the important one?
NF: Yes really
J: And we are not sure whether PCP1 is applied?
NF: We thought this had been conceded? If we look at pleadings or claim?
[looking up refs]

From TT

NF: para 89 p112.
J: This is the grounds of resistance. R is saying that yes their policy is to allow self-id access to CRs, but denies this is available separately from 'gender reassignment'
[reads a couple of sentences]

From TT

J: What do the words "and / or regardless of sex" and "and / or regardless of gender reassignment" mean here?
NF: I don't think they are relevant to my argument here, that the PCP is conceded

SC is having a coughing fit

From TT

J: Do you say they are superfluous somehow?
NF: Only that they are not relevant to me advancing the claim.

I am guessing this is good news??

The Judge needs to nail down who had the purpose because it's central to his (the Judge's) role - he's there to decide and say whether he sides with NF, or if there is no purpose and only an effect, or neither purpose nor effect. Hence he has to be clear who NF is claiming had that purpose.

But he is saying individual people have to have had the purpose and not the trust as an organisation??

From TT

J: Workplace regs 1992 and regulation 24. Says facilities shall not be suitable unless they include separate facilities for or separate use by men and women where needed for propriety. We have had the discussion re 'men' and 'women'

J: So in what way do you say these have been infringed?
NF: There was not exclusive use for females. Or for males either, but we are dealing with the former situation here.
J: So you say 'separate' has to mean 'exclusive'?
NF: Certainly that can't be used by both sexes at the same time.

J: So Article 8. If we conclude it is engaged, and has been interfered with, are we invited to conclude that the interference was not required by law - because workplace regs?

NF: You don't need to go even that far, only as far as saying that the interference was not prescribed by law. That no question of 'gender identify' overrides the workplace regs.

J: SC says we don't need to go anywhere near the convention rights, do you agree?
NF: Well, no - we are in tribunal and have to be mindful to them. But, Art 2 is relevant to indirect discrimination, and 10 to at least the warning by Mr Thacker re media engagement.

NF: Para 60(c) of my opening skeleton addresses.

J: I think that is all my Qs.

J: Thank you Mr Fetto. Any points Mr Cheetham?

Another good point by NF:
That no question of 'gender identify' overrides the workplace regs.

J: So you say 'separate' has to mean 'exclusive'?

That’s a good question.

From TT

SC: Thank you. First thing - re the time point, failure to address [gives a page ref]. I know I'm going on about this but it is important. Refers to arguments put - if we look at those. P200 - August and November 23, then April 24, May 24. [too fast]

SC: Refers to no lockers and then lockers late August. So, it is not right to say there was an extension to November 18th simply because that was when pleaded.

SC: The PCPs are not amended, so insofar as they are relevant [mssed]