"Darlington Nurses" vs County Durham and Darlington NHS Trust Tribunal Thread 9

[ThreeWordHarpy]

Thread 1, 7-Oct to 23-Oct
Thread 2, 23-Oct to 28-Oct
Thread 3, 28-Oct to 29-Oct
Thread 4, 29-Oct to 31-Oct
Thread 5, 31-Oct to 04-Nov
Thread 6, 04-Nov to 05-Nov
Thread 7, 05-Nov to 11-Nov
Thread 8, 11-Nov to 16-Jan (last thread with the schedule and abbreviations)

Five nurses working at Darlington Memorial Hospital filed a legal case against their employer, an NHS trust, for sexual harassment and sex discrimination. The nurses objected to sharing the women’s changing facilities with a male colleague, Rose, who identifies as female. The hearing was held between 20th October and 11th November and was live tweeted by Tribunal Tweets who have comprehensive information regarding this case on their substack, including archives of the twitter threads, lists of people involved and press releases.

At the time this thread was started, the judgment had not yet been published on the Courts website but was widely reported in the media that the NHS was found to have discriminated against the nurses, but the claims against Rose were not upheld.

Posted early as I will be away from my laptop for a couple of hours, but please fill up thread 8 first!

Link to judgment

https://www.judiciary.uk/wp-content/uploads/2026/01/Bethany-Hutchison-Others-v-County-Durham-and-Darlington-NHS-Foundation-Trust-2501192-24-Others-Reserved-judgment.pdf

Thanks for posting link @SexRealistic

Thank you for new thread!

I like this paragraph:

"429. However, there was, as we have found, a ‘perception’ on the part of managers and senior HR officers as to the ‘rights’ of transgender employees versus the rights of female employees in the sense that Rose, as a trans woman, was believed to have a legal right to use the female changing room and the female users of that room were (in substance) believed to have no legal right to object to Rose’s use of it – as demonstrated by the TIW policy stipulating that they should use alternative facilities, by the views of senior HR that they needed to stay on the ‘right side of the law’ and which manifested in the temporary provision of inadequate ad hoc facilities for those who were uncomfortable with the arrangement. However, the belief of HR officers and managers does not equate to the existence of ‘competing rights’ in law or in fact. "

I'm nearly at the end of the judgment. It's so readable, clear, respectful, sensible. Couldn't be a starker contrast to Kemp's pile of crap

Anyone who has been following the case of the transman raped in the mental health ward should be reading this ruling very carefully.

From what I can see, the placement of all the liability on the Trust for acting unlawfully and unreasonably potentially has significant ramifications for that case.

I think it probably opens them up for Wilful Neglect under various acts - with both individuals (including policy managers) and the institute in the firing line, whilst potentially removing responsibility for the rape from the men in question.

When you read through the ruling it effectively throws out the possibility of harassment by Rose because the Trust are liable for the policy.

I do think this issue over liability resting on the Trust really should be getting senior management to sit up and take notice. The more I think about it, the more significant it seems.

It effectively means that if there is a policy which put a woman in a position where she should be safe and has a reasonable expectation of safety - eg a single sex setting or single sex care giver - but the trust acts unlawfully to override this and allows someone to self identify out of their sex they are wilfully negligent and therefore also liable. And this explicitly means those managers setting policy.

Conversely there are ramifications of women put into single sex male facilities because they identify as male. They shouldn't be allowed to for their own safety and for the privacy and dignity of the men concerned and failure to do this is wilful neglect because it's unlawful due to the SC ruling.

Those fudges or 'waiting for the EHRC' suddenly look a lot harder to do.

It puts pressure on Phillipson and the commission to get the fuck on with it too. They look like dicks (sic) swinging in the wind.

by the views of senior HR that they needed to stay on the ‘right side of the law’

Would it be unkind to ask how that’s working out for them?

If I were a head teacher letting boys wish themselves into the girls’ changing room, I’d be really worried right now.

Sure, they can change the policy on Monday, but the school will still be liable for last week’s indirect sex discrimination.

This para is interesting (my bold) - this judge does not think transwomen should be asked to use the mens

439. The difficulty we had with the argument that Rose was ‘exercising their own article 8 rights’ was that Rose although transgender, is a biological male and chose to use a changing room in which they would be exposed (as we have seen) down to their underwear in the presence of others who would also be exposed to their underwear. At no point did Rose ask if there was anywhere private in which to change. We infer from this that Rose was generally unconcerned about being exposed to their underwear in front of biological females. We could not see how the exercise of this choice engaged Rose’s article 8 rights at all. It may have been otherwise if Rose had been compelled (in the sense used in the Claimants’ cases) to use the male changing room and to dress and undress in front of biological males. However, that was not the case. Had that happened, we should easily conclude that Rose’s article 8 right had been engaged and that there would be a compelling case that it had been unlawfully infringed.

In terms of Reddit celebrating it being a 'only a partial victory', I don't think there's a lot of appreciation of how if the judge had found Rose liable and responsible for harassment that the effects may be more limited.

By clearing Rose and placing ALL the liability onto the Trust because they approved the policy and said Rose could use the facilities, the effect is in practice a lot more significant and the impact will be much wider.

On paper it reads like a loss for the nurses in terms of the case itself but actually works much more in their interests and favour.

It never ceased to amaze me just have legally illiterate transreddit types are.

They should be checking their personal liability insurance and pension plans...

“Legally illiterate” is a good way of saying “not that bright”, “self-obsessed” and “intellectually incurious”. And that’s just their lawyers 😂

Now that the Trust have been found to have an illegal policy the Claimants I assume will be due compensation for their distress.

What about all the other signatories of the letter (the one they tried to call a petition) and anyone else who raised a concern/was forced to change elsewhere? Can they now also put forward claims for compensation based on the impact of the policy?

Two important take aways for me A. The tribunal just applied the FWS Supreme Court decision to this situation and their reading of the Health and Safety at Work Regs 1993. B. The Tribunal agreed with and applied Dr Jo Phoenix's evidence on indirect discrimination - basically that where you apply the same criteria to men and women and you also allow trans identifying women into men's changing rooms, the impact is more detrimental for women. An argument that the Fife tribunal basically refused to consider.

I dont know what the Trust has done. But unless they've made clear that men cant change in the women's changing rooms, however they identify, then everyone has a slam dunk claim. They dont get compensation unless they put in a claim.

Absolutely amazing judgement, sensitively written. I read it as saying Rose not only wasn’t taking hormones but never had been.

That sounds like you are trying to suggest they are thick as mince. That would be unkind.

Hopefully this ruling will ensure that the NMC closes the investigation into the nurses.

To the mince?

Good analysis from a left-wing perspective by Labour Heartlands, particularly on the failings of the unions:

https://labourheartlands.com/the-naked-truth/?fbclid=Iwb21leAPYSsNjbGNrA9hJS2V4dG4DYWVtAjExAHNydGMGYXBwX2lkDDM1MDY4NTUzMTcyOAABHrfGSc77L2pfBzI7xdbAN0moIFgGPQyqBLJpiUJOSoeXDtNs4b44NTCHP84k_aem_ZiXKIslB6uzQZ4zwT5RzEg

This
And this explicitly means those managers setting policy
could be a game changer

The possibility that the Isla Bumbas out there (copying and pasting other organisations' Stonewall-sanctioned policies) could be held liable should be giving the cold sweats to many managers.

From our perspective do we want them to close it?

Or do we want them to pursue it and make themselves look ridiculous and at risk of legal challenges?

It's at a point now, where anyone continuing to be a dickhead simply speeds up the inevitable crashing down of this nonsense.

The law is fixed and there's not enough political will nor public support to change the law.

Even if the greens got into power tomorrow, they'd have to actively get the act through parliament and change the law which would result in an inevitable backlash in various forms. Any changes wouldn't last long.

It's not a question of this collapsing. It's a question of when and the degree of fallout from it.

I personally think these professional bodies and institutions need a very firm rocket up the arse sooner rather than later.

I suspect a prosecution would be difficult, because it’s usually hard to find a single responsible person. Corporations etc mostly get fined fairly modestly. But this rape victim has a circular action in negligence where the damages will be colossal.

Still a corporate risk that NHS trusts have to take on board whilst policy making. Individuals will still get nervous about the potential...

...this will still force change.