"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.

The absolving of Rose of harassment is interesting, because Rose's behaviour didn't end at using the changing room, staring and inappropriate comments qnd questions - there was also a lot of information about other behaviours that the nurses found intimidating /harassing eg seeking out the nurses who had complained, making a point of being on their wards /in their workspaces when there was no reason to be there, recruiting people to his side, the possible involvement in the 'inclusive' posters that appeared. While Rose's behaviour in using and continuing to use the changing rooms could be explained by following the trusts policy, there was no trust instruction or policy that said 'act like a manipulative stalker if you don't get your way'

Same with Upton, also not found to be in any way personally responsible, with the trust policy should ring the blame - and yet the individuals behaviour is the issue, not just using the female facilities and the lack of consideration and respect for colleagues, but the manipulation of the situation, the lies and attempts to use policy to punish triangulation and drama that adds to the hostility of the situation. All because entitled males have an unreasonable demand to be seen as female and will do anything to force compliance with their unreality.

(First, even though I am late to the party, HURRAH!)

I wouldn't put Henderson and Upton in the same category. The judgement, while it errs on the side of Benevolence to RH (maybe tactically ?), is really well written and explains clearly why it does not find faulty behavior on his side. While none of the nurses are found to be lying (thank God), it explains that "normal" behavior on RH's part was genuinely felt to be malicious by the nurses because of the importance of the subject to them... While he just couldn't see the problem and just acted normally without extra precautions. The comparison with the nighttime situation is to the point. If a male crosses the street and finds himself on the same side as a female, it may be that it's just his way... But the female will genuinely and legitimately feel threatened anyway. And the male just doesn't think about it. In the judges view, RH basically did as he was told to do, doing his best to ignore the whole thing. Ditto for the fact that he contradicted Karen Danson: the incident was traumatic to her, and just non existent to him (I still remember a discussion with my mum 23 years ago that she had forgotten all about the next day...).

Upton on the other hand deliberately started proceedings to have Sandie disciplined. Hell, he deliberately fabricated the patient safety incident. That is definitely not the same level of evil.

ETA: judgment does demonstrate that, ironically, Henderson is definitely not kind.

I think it is worth reading the paragraphs in the judgment which consider those allegations in detail and explain the conclusions reached.

Well, we will have to agree to differ.

Couldn’t an appeal jeopardise the whole ruling? If the appeal judge was a Mr Kemp, could they lose the whole lot? And it’s legally binding at upper tribunal.

@EmmyFr I completely agree about the difference between Henderson (entitled and uncaring) and Upton (actively seeking to destroy a woman's career)

I don't think so - I think you can appeal on specific legal findings, you don't have to ask for the whole judgement to be set aside. That's what Allison Bailey did.

Much though I'd find it satisfying to see the likes of DrU and Rose getting a ticking-off in the judgment, it's much more important that the employer carries the can.

ETs are about disputes between employee and employer. If the employer's policies are reasonable and lawful, and their enforcement of those policies is robust, that's all that's needed from a legal viewpoint, I think.

i find it useful that Upton and Henderson don't get blame assigned - because otherwise the TRAs will spin it (even more) as victimisation and personal.

This way it is "the process is at fault, and the managers/organisations who are misinterpreting the law". Much better all round.

The judge is expecting them to sort it out without coming back to court. I've ordered popcorn, Tunnocks teacakes and Tunnocks Wafers and done a spot of gardening to the brave women who've stepped up and stood up for all of us.

I don’t think they’ll appeal. It’s annoying Rose wasn’t found to have harassed them but it seems to be a decision based on the judge finding the facts the claimants alleged about him walking around in holey boxers was not established. And the loss of the victimisation claims seemed to be that the employer was already fucking up, it wasn’t because they did a protected act that happened.

Much though I'd find it satisfying to see the likes of DrU and Rose getting a ticking-off in the judgment, it's much more important that the employer carries the can.

I do think there needs accountability both for the employer and for the man in question. There must be consequences for individuals. At the moment, when it comes to public services, it's virtually a free hit for the man - the taxpayer is paying and the employer is responsible for the men's actions, even when they go beyond just reasonable use of the space.

But...

26 Harassment
(1)A person (A) harasses another (B) if—
(a)A engages in unwanted conduct related to a relevant protected characteristic, and
(b)the conduct has the purpose or effect of—
(i)violating B's dignity, or
(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(My bold above)
....
(4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—
(a)the perception of B;
(b)the other circumstances of the case;
(c)whether it is reasonable for the conduct to have that effect.

The Trust is Person A, Henderson is person A, the nurses are Person B.

It doesn't make sense to say that the mere presence of the man in the women's spaces is harassment by the employer because the effect of it is to violate dignity or create a degrading/hostile atmosphere, etc (exact wording above), even if the employer thought they were doing the right thing with their policy, yet the presence of the man who is causing that effect is not harassment by the man. It shouldn't matter that he thinks he's allowed to be there under the employer's policy. It would have been good to have a clear statement that just going into women's facilities, if you are a man, can be harassment in and of itself. You don't have to be acting like a creep, or masturbating in a cubicle, or filming, or committing any other criminal offence.

I find it baffling & inappropriate that any attempt is made to determine whether Henderson harassed females by looking into his mind. We don’t know what’s going on in someone else’s mind. His motives could have been either benign, or depraved, or anything in between. How can we tell? (Particularly in circumstances where the only action from which intent could be inferred - invading female spaces - has been normalised to such a degree that it is difficult to infer anything at all from it.)

The sole test in these circumstances should be action. And if a male is present in a female only space, in circumstances where women have made it clear he is not welcome, that should be enough to constitute harassment, without further enquiry into his motive.

As this judgement has made clear that a man, of any stripe of gender, in a woman's changing room is harassment won't this mean that tw still doing this are more likely to be individually guilty of harassment? Or is the water still muddy because of Kemp's judgement and the Leonardo one, as well as this one not being binding?

Yes, on balance I think this is far better overall, for where we are now.

Anyone interested in the tribunal will have formed their own opinion about RH's actions anyway.

None of the three cases are binding until the Employment Appeal Trubunal rules on them.

However, this case does correctly apply FWS, so employers should be wary of continuing as before. Even in Sandie Peggie's case, she won on harassment by Fife NHS and their costs have been considerable. The finding the Upton should have changed elsewhere while they investigated is not insignificant.

The safest form of action for employers is to find private neutral spaces for trans-identifying staff to use. If those staff complain under the Equality Act or Article 8 of the Human Rights Act, they are on much more secure footing. And we would get judgments from the different perspectives of trans Claimants.

And if the employers instruct their trans-identifying staff in that way, and the male staff continue to use female single-sex spaces, then the resulting cases are going to have a much better chance of holding that their Rose Hendersons did carry out harassment.

Jennifer Melle hearing on Tuesday
https://www.dailymail.co.uk/news/article-15473997/Nurse-suspended-transgender-paedophile-Mr-dismissal.html

Agree, and the lie continues that these men are especially fragile and need to be protected, and none of them could possibly be doing it to sexually harass or deliberately create a hostile environment for women.

Personally I think a considerable number get off on those things, and until that is recognised, we are going to come up against the view that they shouldn’t be excluded, it’s possibly unlawful discrimination etc etc etc.

Jolyon etc are treating it as “two out of three to us”.

Unison's statement on the judgement:

https://www.unison.org.uk/news/article/2026/01/unison-statement-on-nhs-legal-case/

Basically, we haven't read it yet because it's too long but we stand by our trans and non-binary members (but not women who want the single spaces they are entitled to in law). Bastards.

Useless unions.

Not even an attempt to acknowledge that there may be different and very valid views.

Because they are misogynistic shits who don't give a stuff about the working class women they are meant to protect.

Time for a discrimination case against the union?