"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.

Your correction is noted and I am grateful - quick googling raises the "reasonable person" defence; that is harder to justify.

No I do take that point. And I think ETs should should rule that it is harassment, but they don't seem prepared to go that far because trans people seem to have a special status in that regard.

I agree with what you are saying from a legal point of view, but I suspect the nurses won't have the desire to go back to court to prove that point, as long as the hospital changes their policies and provides them with single sex spaces.

I also think that many people will think that from an ethical point of view intention is relevant and that the nurses got their single sex spaces, so it would be difficult to raise funds.

Yes, that's what the Legal Feminist blog described as this tribunal's "failure of nerve".

Partly I think the problem stems from the tribunal wrongly having absorbed that there is stigma in being a "harasser", like an abuser. The EA2010 doesn't impute moral blame to it's requirements (or else it they would be criminal offences), it (paraphrasing) just says if someone is harassed they should get money damages. Inadvertent harassment by an individual is just as serious as inadvertent harassment by an organization. The tribunal could have, and should have, in my view, said that RH had harassed the claimants, although it should be clear that it is not a moral or ethical judgment, and that RH may well have felt fully justified in his behaviour.

Wow, the judgment is written so clearly, that I was able to read and understand it - eglish isn't my first language. It reads as a mystery novel.

I like the explanations of what kind of findings is this tribunal making and how dismissing claim doesn't mean the person is lying.

A few thoughts

• It is incredibly difficult to prove personal level harassment.
• The trust was so concerned with Rose's rights, potential risk of lawsuit or media involvement, that they totally failed to notice the risk of a potential lawsuit or media involvement on the nurses side - even after the nurses got a solicitor! It is frightening how relatively competent people can collectively hold such a huge blind spot.
• Generally, no employer should ever be asking (or needing to know) about their employee trying to conceive (M or F part of it) However the wording of the policy about self declaring that one lives fully in the chosen gender made it relevant. But they didn't feel they could ask and disregard it as a rumour. It's sign of a bad policy, that it makes something like this relevant.
• I like the indirect discrimination explanation about different effect of the same policy on men and women.

One of my favourite sentences, just from language point of view is
Although Ms Bailey ought to have known this from the emails, someone, either Theatres managers or Ms Smedley or Ms Atkinson, could have but did not make it clear. It says so much.

So now the tribunal said that the Trust is wrong, Rose personally is off the hook, Trust should move Rose to the ex-office and suggest some reasonable remedy for the nurses, preferably without a need for another tribunal hearing.
Am i right?

He did go on to say that it might be the ratification and or adoption of the policy that was conduct if the policy itself wasn't conduct - might be a weasel loophole to write a policy and then not ratify it, although I imagine doing anything with it - eg sending it to someone or putting it on a website might be conduct.

My read is that Sweeney wanted to focus on those making policy and enforcing policy. He was keen it wasn’t one side versus other or personal for Rose.

He is saying those that allowed this to happen failed the nurses - calling Rose guilty muddies the waters somewhat - from my read between the lines.

Not saying it’s right. But of course these delusional people have been enabled so much that they don’t know what’s right. Their employers know better so they better control them better.

In an ideal world:

TIM goes to management: "I've just found out that my presence in the female changing room has been distressing my colleagues. I am mortified. How can we work together to find a solution that works for all of us?"

In reality, during questioning (I paraphrase):

"Did you ever consider how your presence in the changing room affected your colleagues?"
"Not really, no"
🙄

I agree that Rose's conduct appears to have met the definition of harassment. But I wonder (I fear) what it will take for an employment tribunal to find one of these men guilty of harassment.

I wonder if this judgement will influence Phillipson at all? She’s so deep down the bekind rabbit hole. Perhaps she won’t have to act because individual trusts will realise on the own they had better get on and act on the law as it stands and not SW law.

That poor woman / trans man being so vulnerable and then being placed with adult men with acute psychiatric conditions. That particular lawsuit cannot happen fast enough. It might be difficult to find an individual to be responsible but it might finally FFS wake up those making such decisions to actually think about what they're doing.

Rose has had separate changing facilities and hasn't been using the women's CR since at least April 2025.

The hospital will have to redraft its policies, and the nurses will get monetary damages. If the nurses and the hospital can't agree how much they get paid or some other aspect of what the hospital has to do to put things right then there will be a remedies hearing.

So would I!

I think if it had been Naomi conducting the case, she would appeal. This part does smell a bit of the Tribunal thinking the nurses should be satisfied with the finding against the Trust and not be mean to the poor misunderstood Henderson.

I am also reminded of the Allison Bailey tribunal judgement - the panel were unwilling to follow the logic of the facts and argument to the finding that Stonewall had tried to get Garden Court Chambers to discriminate against Allison Bailey. They swerved at the last minute.

Hadley Freeman in the Times:
https://www.thetimes.com/article/375710e2-3c9e-4f29-ac1c-d52ac8f3960a?shareToken=3fd89e937f541df25cc63f91bb38272a

They’ll likely be out of time

Another excellent article.

"The fault for all of this lies squarely on the government, specifically Bridget Phillipson and Keir Starmer... It is an obscene indictment of the government’s cowardice, and women will not forgive them for it."

And not just the government. I won't be forgiving any of the lunatics who have promoted this shite, to the utter detriment of women.

I thought I'd share this comment, from trans reddit, as it shows the depth of (one area of) the absolute misunderstanding of the purpose and intent of equality legislation:

"All these contradictory rulings need a resolution via parliament doing its job, but I would worry they'd not act in our favour as was the intent of the original Equalities Act."

I would once more like to voice my thanks to the knowledgeable souls of FWR - your specific analysis of the minutiae of the ruling has been so helpful to a layperson like myself.

O wad some Pow'r...

May I respectfully point out that even had Naomi (Cunningham) been conducting the case, she would still have only the status that Niazi Fetto has, and that an appeal on that point would be at the pleasure solely of the claimants, the nurses?

And, in practice, the discretion of those funding such an appeal.

I’m not sure she’s “being kind”. She’s calculating what’s best for Bridget Philipson, first and the party, second. Whether she’s called it wrong is another matter.

Yes, in all these cases the employer has carried the can, rightly, but they’ve been reluctant to sanction individuals and organisations who in many cases were the instigators of the harassment.

She would have advised an appeal, is what I meant.

I don't think so. She would likely advise her clients that their monetary damages wouldn't be much higher, even if they win an appeal, and their additional costs will be very significant, win or lose. It's not an advocate's role to recommend an ideological appeal that is to the advantage of many but to the disadvantage of her clients.

As @TriesNotToBeCynical also points out, CLC may not wish or be able to fund it.