"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.

That article is spot on.

This is one of the saddest and most anger-inducing aspects of this case - Unions abandoning women at their time of need

@AreYouSureAskedNaomi, unions have rarely given a tuppenny fuck for women’s rights. Read “One Hand Tied Behind Us” by Jill Liddington & Jill Norris - it’s a history of the suffragette movement and it shocked me how little the unions cared then. They care little more now.

have been stunned to find a few accounts over on BlueSky sharing this good news. (for sure there is pushback from the TRAs but it is encouraging that there is a bit of a dint in the echo chamber)

TRAs mostly crowing that the charges of harassment against "rose" have been thrown out. And that is fine for me - the NHS trust is in the wrong and they are the harassers. They should have offered "rose" a place to change the minute they realised he was using the women's facilities.

The unions have been anti women from the outset though, first they didn't want women in the workplace because they took men's jobs etc etc, so it is no surprise they are still anti women.

But. But. But. This is the PERFECT opportunity for a union to represent both sides of this issue. That there MUST be single sex facilities for privacy and dignity (I prefer not to say "safe" spaces - this should be basic stuff). And that where necessary they should provide a separate, appropriate place for trans colleagues - or agree that there can be unisex changing for anyone that wants to use it, and single sex for everyone who wants that.

It really isn't rocket science.

I shall try to post the link to the Sex Matters discussion on the judgment, well worth a read, as clear as you would expect

sex-matters.org/posts/updates/victory-for-the-darlington-nurses/

Jo Bartosch has written it up for the Critic

A victory for common sense | Josephine Bartosch | The Critic Magazine https://share.google/pYpBH0pnstAoYRmES

Thanks for posting that. It's really good. This part is such a clear and powerful summary (my bold).

But this case raises a question that extends beyond policy. How did we reach a point where eight healthcare workers had to take their own employer to tribunal to secure the basic human dignity of not undressing in front of a male colleague? And how did their own unions not just fail to support them, but actively brand them as bigots?

The answer lies in the intersection of identity politics, elite institution capture, and the abandonment of materialist analysis. When subjective feelings trump objective reality, when identity claims override bodily boundaries, when administrators and union officials can dismiss women’s concerns as requiring re-education, we have created the conditions for systematic abuse dressed up as progressive inclusion.

The left, historically grounded in material analysis of power, has too often surrendered this terrain to liberals who mistake linguistic games for liberation. Renaming male people as women does not redistribute power. It erases the category on which women’s oppression is based.

As Labour Heartlands has argued consistently, any genuine left-wing politics must begin with material reality. Women exist as a biological class. Their oppression is rooted in that material existence. And their liberation requires the defence of sex-based rights and protections, not their dissolution in favour of self-declared identity.

ETA, on rereading - the phrasing of it really makes the Orwellian nature of what we're living through clear. Terrifying. Thank goodness reality is breaking through.

The judgment tries to draw a distinction between RH's non-harassing behaviour by being in the women's CR, and the the trusts harassing behaviour in permitting him to be there. Michael Foran drew attention to the fact that it was hard to conceive how it could be harassment to permit behaviour that wasn't itself harassing, and I came up with a counterexample. But I'm not sure that's right as a matter of law. The reasoning in para. 355 of the judgment seems weak to me. The relevant part reads:

"Given that the Claimants’ complaints can be comprehensively addressed by focusing on the conduct of the Trust itself, it is not reasonable, in our judgement, and having regard to all of the above circumstances, to conclude that as regards Rose personally, that the conduct of using the female changing room be regarded as having the proscribed effect. "

The problem there is that the clause the judge appears to rely on to avoid finding RH having harassed, the "having regard to the other circumstances of the case" clause, should by the way the act is worded properly apply only to the perception of the harassee. The law isn't structured to allow the judge to conclude that the behaviour was harassment but it wouldn't be "fair" or equitable to RH to find him responsible, that it was someone else's fault.

The judgment draws attention to this very point in 356:

We do not consider there to be a logical contradiction in a conclusion that the Trust harassed the claimants by permitting Rose to use the changing room but that, by exercising the choice to use it, Rose did not. The two conclusions are easily reconcilable. Nor is it simply a theoretical distinction without meaning. In our judgement, the distinction does justice to the facts.

I don't think the two conclusions are easily reconcilable, and saying they are doesn't make them so. As for the distinction does justice to the facts: it does justice to the outcome, but I don't think it suits the fact.

I think the judge is playing fast and loose with the law, albeit for equitable purposes. Curious whether anyone else will address that.

I agree.
I've just posted this on the other thread:

I also don't understand how/why the tribunal did not conclude that Henderson harassed the nurses simply by being there, even with permission, when he knew he was not wanted, and that the question about getting changed was harassment. Legal Feminist go into this question towards the end of this TwiX thread. I think LF also doesn't think that part of the judgement makes sense, I hope I'm not just misunderstanding the thread.

https://x.com/legalfeminist/status/2012271435100643525

I thought that breaking the law because your employer made you was no defence.

That, actually, is a very interesting legal point that I would enjoy reading an appeal judgment about, even outside the context and facts of this case.

I wonder if there's a budget (and a will) to appeal that finding?

It really does boil down to the tribunal deciding "it wouldn't be right to find RH personally responsible".

Here's another interesting (positive) conclusion of the tribunal:

360. By analogy, we consider that the existence of a policy which permits a biological male who identifies as a woman to use the female changing rooms may properly be characterised as ‘conduct’ in itself.

In other words, its feasible that a woman can sue for harassment merely by the existence of a policy permitting men into women's changing rooms. She doesn't need to wait to see a man in there, nor even for there to be any trans-identifying men at her workplace.

This is an excellent piece

During the hearing Rose came across as initially never having considered how the women were feeling about his presence in the changing room (perhaps a very male mindset...)

However after the nurses complained he knew without a doubt he was upsetting them by being there. It could be argued that his continued presence from that point constitutes harassment. But he was sure he had the right to be there and he was backed by management.

They thought the law was on their side so the only issue in their minds was the women's attitude, hence the infamous "they need educating and broadening their horizons".

Rose's actions would have been impossible without the trust's explicit, continuous support, and their warped policies.

Interesting. I did struggle a bit to follow the judge's reasoning on this question.

If he had found that Rose's presence in the changing room constituted harassment by Rose, would there have been any actual impact on Rose (other than to feelings), given that Rose was not a named respondent and the Trust would be held responsible?

As far as I know, only an impact on Rose's reputation. I don't think the claimants would get any more damages from the hospital, either.

I predict (based on neither authority nor expertise) that a remedy hearing will not be required, there will be no appeal, and that this point will be left hanging for another tribunal and EAT to take up.

As soon as Rose knew the women were upset, and kept on using the changing room regardless, for me that becomes harassment. Just because the organisation says he's entitled to be there, doesn't excuse his selfish choices. He knows he has an adult male body, and other women don't want to see him or be seen by him when undressing.

I'm guessing that the Tribunal Panel were wary that finding RH even partly liable for harassment would unleash the TRA flying, screeching and pooping monkeys. GLP would immediately start to fund raise, and an appeal by RH would be near inevitable. Money won't be a concern for him.

In contrast, the Hospital is very unlikely to appeal. It would be both very expensive, and very unlikely to succeed. Just more legal bills, more newspaper headlines and more public humiliation for them to endure.

So, hopefully, the Judgement holds, without appeals.

There's a great deal of really, really good stuff in the ruling. RH, is legally male so, should never have been in the Women's Changing Room. It says this many times over.

It's a big win.

an appeal by RH would be near inevitable. Money won't be a concern for him.

He's not a party to the case. He's not able to appeal no matter how horrible the tribunal is about him. I agree with you about the flying monkeys bit, though, even if the tribunal wouldn't put it in those terms.

I suspect there won't be a will to appeal, given that the judgement was clear that the hospital must comply with the H&S legislation and provide single sex changing rooms.

Unless there is a legal point of which I am ignorant, it's not clear what the nurses would gain.

A possible rationale is that mens rea is required for harassment. The Trust knew or should have known that they were harassing the nurses. But perhaps Rose might be excused for assuming he would not be harassing the nurses because he was misled by trans propaganda and his employer's permission.

I am not saying I agree with this analysis (or even necessarily believe that that was Rose's honest opinion), but it at least it applies a lawful rationale to the judgment.

I can see the argument for Rose not harassing.

From Rose’s perspective, national charities were saying that workplaces were not a service so FWS didn’t apply, therefore Rose was allowed to be in the changing room and this was being supported by HR and other colleagues. Rose was a healthcare worker, not an HR expert or lawyer, so isn’t expected to know the detail of the law. Therefore, from Rose’s perspective, the nurses complaining were discriminating against Rose, due to Rose’s protected characteristic of gender reassignment.

Had HR said that the law said that trans women must use the changing room of their sex, or evidence had shown that Rose knew the law required Rose to use the male changing room, harassment by Rose would have been more clearly present.

I think that’s a good outcome, because it puts the pressure on employers to tell employees that changing rooms are based on sex, and the employer will be held responsible if this isn’t done.

A possible rationale is that mens rea is required for harassment.

I'm not sure that's correct. "Mens rea" is usually applied to criminal offences. The requirements for conduct to be harassment are laid out clearly in EA2010. It's conduct that has the "purpose or effect" of creating a hostile or intimidating (etc.) environment.

The conduct has to be deliberate, sure, but only to the extent of meaning to enter the women's changing room and not, for example, having accidentally tripped over the threshold.

@TriesNotToBeCynical
I took far too long to type, and you’ve explained far more clearly what I was trying to say.

I think there is something in this because I think some of these men do genuinely believe they are women. Plus Rose had colleagues who were siding with him over the awful bigoted nurses (and put up the inclusive changing space poster).

If you look on the trans Reddit board, they express utter astonishment that any woman would have an issue sharing changing facilities with (as they see it) another type of woman. And that is why this issue is so intractable because they have no real understanding of how (actual) women feel. And I think that is how the tribunal viewed Rose.

ETA you also have to remember that these men are surrounded by family, friends and colleagues who are affirming them at every step. This feeds in to their belief that they are entitled to be treated as women in all circumstances. This was very apparent with Dr. Upton. Is anyone close to these men telling them the truth?

Again, it's categorically not an excuse to harassment that you - even genuinely -didn't think the person would be offended by your behaviour.

The trust genuinely thought they were doing the right thing too. It wasn't, and isn't, an exuse.

This reminds me of the Middlesbrough case of the 17 year old man, Ciara Watkins who didn't disclose that he was not a woman when engaging in sexual activity with another young man. Ciara was found guilty and put on the sex offenders register.

Both he and Rose were told they could be women and that anyone who said they weren't was a bigot. The man that was able to see women undress and was in a state of undress in the women's changing room has been found to be not culpable.