"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

SC: Re Art8 - if engaged, it's said the way to achieve is by segrating by sex. But RH also has Art 8 rights and removing RH wd have interfered, so I say have to look at all Art 8 rights and am not sure it takes us any further. Does not add much. But Art 8 rights work both ways.

J: Art8 rights framed as, Cs have to undress in front of a biological male, so breach of privacy, and not justifiiable to interfere. But you say removing RH also a breach, why?

But you could use the proportionate means of achieving a legitimate aim to remove Rose.

Not that you would need to as Rose has no GRC!

What I took from a brief look at the exchange is that he's asking NF if NF is saying the Trust can have a "purpose". I haven't been following closely enough to know where that fits into the structure of the submissions, but it is an interesting question. I don't know nearly enough about the conduct of employment law cases to know the answer.

From TT
SC: bcs RH gender identity also has Art 8 and RH chooses to use the female CR, so moving RH out ..
J: You say 'peremptorily ordering' RH out - you say that infringes Art 8 for RH?
SC: Right to have GI respected.
SC: But I still say, does not take us forward.

Er, no. Gender identity is not a protected characteristic. So he doesn't have the right. If you think he does, where is the law about that?

Probably after Christmas for the judgement

And we are done.

From TT

SC: Last point - re what NF said and your discussion, we know the test is 'sufficient connection' and NF says everything RH did in the CR is 'connected to sex'. But suppose you have a TW - not RH but another - who makes a racist remark in a CR. 'Sex' is subordinate here. Just being in CR is not suffienct as 'related to sex'

SC: Those were the only points I wanted to make.
NF: Wd it help if I concede that [refs, we don't have] - just ask tribunal to look back to the pleading, which I think SC was also urging.

J: Thank you very much. We are going to reserve our decision.
SC: Have been asked that often by the press ...
J: Well it's now official. We do not have this Friday but we will deliberate tomorrow and Thursday here, and may have to book further dates. I do not think we will rule before Christmas.

What a bloody nice judge!
And the legal teams were rather civilised too.

From TT

J: We obviously understand that everyone is keen to have decision as soon as possible.
J: Thank you to all the legal representatives; you have been very helpful.

[END OF HEARING]

He's saying people's gender identity needs to be "respected", which, in the context of the ECHR (which is what was being discussed), it probably does. That's not the same as saying it's a protected characteristic.

This is so good because the judge is asking all the questions that TRAs/Jolyon have been opining on on Twitter - that the SC ruling doesn’t translate to workplace H&S regulations and interferes with transpeople’s human rights. The judge is asking so many questions, he must be intending to address them in his judgement - he isn’t going to be silent.

This is going to be a colossal win of a judgement (or an absolute disaster…….)

I wonder what they mean by Article 8 rights? You can't map this case onto the case law that led to the GRA because he has made no attempt to hide his sex.

But that doesn't equate to allowing RH to change in the women's changing room, particularly because the Trust made provision for the women to.change elsewhere. It would have been more proportionate to.make.a facility available to RH.

Directly I think it's Article 8 of the European Convention on Human Rights which grants everyone the right to respect for their private and family life, home, and correspondence.

This afternoon's session here

https://threadreaderapp.com/thread/1988245321122484400.html

Tomorrow I will be live pasting from Nick Wallis' account on the Sara Morrison vs Belfast Film Festival case. Naomi Cunningham is acting for Sara.

Thread here:
https://www.mumsnet.com/talk/womens_rights/4991660-sara-morrison-vs-belfast-film-festival

I suppose the argument is that RH requires privacy from men, but I don't see how you can make that argument without acknowledging that the nurses require privacy from RH who is obviously a man. It might be an argument for a third space for RH, but that is not what the hospital provided.

Thank you very much, Myrtle, it's lovely to have you back in action again after the tough time you've been through💐

Surely arguing that a man's 'privacy and right to family life' is infringed by requiring him to respect women's right to a place of privacy that he can't enter is stretching that article out of any recognisable shape. That was certainly not the intention that article 8 was ever supposed to hold, and not something to creators of it would have discussed or considered at the time. "Should this article allow men to force right of access to non consenting women in a state of undress in a women's changing room?" has a very obvious answer.

Also stating that the two detriments are equal is ridiculous.

Women wish to use article 8 to protect their dignity, privacy and ability to take their clothes off in a space where men cannot come. They wish to use it as a defence against humiliation, distress and degredation.

The man wants to use it to insist he must not be asked to leave because of his gender choices. He wishes to use it to gain access. At best, to avoid having his absolute sense of being a woman jarred.

And important to add to that: he does not just want access to a safe, dignified space that is not the men's provision.

He wants access to non consenting undressed women.

Thank you. I'm hoping this is the final recovery, but the antibiotics have been prescribed until mid-January, so it remains to be seen.

I think the other way this argument is used by the TRA side is that RH requires privacy of their trans/gender reassignment status. It’s the “But it will out them” or at least make it harder for them to be accepted as what they’re not their chosen gender, argument that the GLP et al. try to claim Goodwin makes unlawful.

“privacy and right to family life“
I want to sit in the women’s changing room watching women change, strolling round in my undies, and it’s my right.

Meanwhile women who don’t want to take their clothes off in front of him… bad luck ladies.