Tribunal discussion thread supporting FayeRC in case against NHS England starting 16/03/26

[Jimmyneutronsforehead]

Thanks for joining in this discussion in support of @FayeRC and the case against NHSE.

This is a private tribunal case, so there will be no live viewing, however TT will be covering and I'll be doing my best to cover it here, however my Monday has become very busy, so any support from PPs is welcomed!

Groundskeeping rules, let's all remain respectful in our discussions. I'm sure TT will cover the Judges expectations for coverage in the morning. This should be a lot smoother as this tribunal isn't open for public viewing and so a lot less scope for error, however discussion should be about what is accurately being reported on and not misrepresented.

FayeRC is a pseudonym and so I ask that if anybody recognises FayeRC throughout the tribunal we respect the anonymity requested.

There will also be current, and frequent gardening requests on the crowd justice page, please search Faye Russell-Caldicott crowd justice if you can support. We have less than 17 days to help raise another £40,000.

"I have issued an employment tribunal complaint against NHS England for indirect discrimination on the basis of sex (women), religion (Islam), philosophical belief (gender critical) and disability (PTSD) for having a policy in place which effectively renders the supposed single-sex toilet, changing room and showering facilities as mixed-sex.
According to NHSE’s trans staff policy, transwomen (born males) can use female facilities in addition to male and gender neutral facilities. Which means that NHSE expects women to share female facilities with biological males. If a woman is not happy with that, she is directed to use the gender neutral toilets, and transwomen (males) can continue using the female facilities. The policy is blatantly discriminatory against women, especially in those office bases where the showers are open plan.
Simultaneously, my claim also includes claims of direct discrimination, harassment and victimisation related to my philosophical belief (gender-critical).
This is one of the first cases in England where a court will be asked to decide whether such a trans staff policy is discriminatory against employees with other protected characteristics. There has been no Equality Impact Assessment conducted in relation to the policy. When developing the policy, NHSE did not thoroughly consider the needs of women or the implications of trauma and religion, or the normal and common boundary a female member of staff might assert that she just simply does not want to shower in direct line of sight with a biological male.
The response from NHSE has been extremely disappointing. I have been told that all staff members are expected to follow the policy. I have been told that NHSE is already offering single-sex female facilities, which can be used both by “those born female, and those who identify as female.” Their rationale for not excluding transwomen from women’s facilities is that “even if there would only be one transwoman excluded from the female facilities, we would consider that unjustifiable unlawful discrimination.” In its response, NHSE effectively denies the relevance of biological sex as the basis for single-sex spaces.
My claim is that the current staff policy is discriminatory on the basis of sex, religion, belief and disability and the facilities should be made female-only by excluding males.
I will be applying for full anonymity, which will be essential for me to take the case forward, given my personal circumstances. If my application for anonymity is not accepted at the preliminary hearing, I will pass all remaining donations to another case of my choice which seeks to secure women’s single-sex facilities or services.
Please help by donating and sharing the link. Like with all court cases, there is a risk of losing. This crowdfunding pays for my legal fees. I will not be benefitting financially from the crowdfunding because the money raised will go directly to my legal team’s client account. Any compensation from the employer is likely to be modest. I am pursuing this case because women’s rights to safe spaces, safeguarding and consent should not be overridden.
Yours faithfully,
Faye Russell-Caldicott"

From FayeRC's own thread, here is the broad summary of events that has lead to this tribunal:

• A male colleague transitioned in 2022. We were told the person would use facilities of their preference. Staff in my Directorate were told what was expected from us and this was in effect immediately.
• We had open plan changing room and showers and usual cubicle toilets.
• I am an actual woman, Muslim, gender critical and have PTSD. I cannot share facilities with males.
• Following this, I raised in 2022 that facilities were effectively mixed sex. NHSE disagreed and said they were offering single-sex facilities for those born female and those who identified as female.
• Raising these issues internally was extremely difficult for me and did not lead to any changes to staff policy. I argued ‘sex’ in EqAct 2010 meant biological and therefore could not include males who identified as women. They did not agree. Their interpretation was that if even one transwoman was excluded from female facilities that was discrimination on the basis of gender reassignment. I did tell them nearly all transwomen retained their penis and those who had it removed were males nevertheless.
• I was effectively pushed out from female facilities to use gender neutral toilets which I have continued to use to date.
• One would have thought Fife, Darlington and SC ruling were helpful but they have not prompted any changes to policy to date.
• After SC ruling an all staff announcement was made in support of everyone, including those with trans supportive views and ‘other views’. Policy was put on hold and under review but not removed. It remains so for nearly a year later.
• They have been waiting for EHRC guidance (on public service provision). I have told them they are waiting for a wrong piece of guidance. This is an employer-employee matter.
• Policy was created with support from trade unions, Stonewall and GIRES. No women’s organisations, trauma support organisations or religious organisations were involved in policy drafting.

As mentioned earlier, I'll do my best to keep up with TT, but I've had a curveball thrown at me this weekend which will take up a chunk of Monday, however I shall keep you all posted so if somebody can take over when I am not available for all those that aren't on TwiX that would be great, alternatively I'll be sure to post the summaries at each break and redirect to Nitter in the interim.

Thank you to everybody who has already shown FayeRC their support, let's get this some traction and help a fellow wim out.

i concur with others who are a bit “foxed’ by what possible defence NHSE could imagine that they have.

i wonder if they think that they were using a proportional approach, being as trans peeps are the most marginalised people on the planet, and that this argument is a runner.

it just seems to me that NC is so very homing in on that as an issue.

I also wonder if civil servant TRA’s, and the like are behind this, it just does not make any sense.

NC: para14 of your WS. You contrast 2 things – C’s gender-critic beliefs, and, NHSE desire to be inclusive and respect gender identity, you say sometimes things are mutually exclusive. You are saying C beliefs irreconcilable with NSHE position?
PG: Yes

At least he’s saying the quiet part out loud. He might as well have come out and said GC beliefs are bigoted. NHSE = kind, inclusive, caring people. GC = hateful bigots.

There’s allsorts of hierarchies with toilets. Disabled people are at the bottom. Men are at the top. Men still have more provision than women. Women need more toilets to achieve equity. From what I recall the number of urinals + cubicles here were greater than the number of women’s cubicles?? Disabled people that have to use the accessible don’t get single sex toilets. They very often get a toilet that is not fit for purpose.

The HSE example of a reasonable adjustment in a toilet for work is the example of a man with prostate troubles being given a sanitary bin in the mens. I would suggest a door gap is another very reasonable adjustment for many conditions such as epilepsy, diabetes, people with heart conditions, those who have had strokes, those with trauma (to assess immediate environment before going in and exiting), those with fragility. Which means a single sex toilets.

When I read the accounts of women who are too afraid of public toilets because they have been attacked in them, it’s clear sightlines are important and not being trapped. That hit home again when NC was talking about unisex toilets in the basement. Just like how the nurses in Fife didn’t use the changing room in the basement. As women we avoid these places.

The Sarah Everard inquiry discussed how design was so important to make women feel safe and be safe.

I was looking up the expression 'Hobson's choice', which basically means the illusion of choice, take it or leave it. It comes from a man named Hobson who had stables where he hired out horses (years back when the horse was the major form of transport) and his business model was 'take the horse nearest the door or nothing'.

Faye & women in her position, which could be any of us, do have a choice technically but it's Hobson's choice: use the showers knowing that a man might enter at any time, which will outrage your sensibilities, be a gross invasion of your privacy & dignity or clear off.

It's hard to call that a choice. Unless, of course, you're a manager in the NHS.

Where there are urinals, it is very unusual for there to be more than the bare minimum of cubicles, so a lack of cubicles can be an issue for men. On the other hand, men probably are able to use urinals around 90% of the time, particularly in pubs and nightclubs, so usually the lack of cubicles isn't much of an issue. I think most men fully recognise that women need many more cubicles, and that there are a lot of venues where provision for women is inadequate. I tend to notice this because I'm waiting for DW at gigs or in theatres or at motorway services, and she's frequently still queueing to get in when I come out.

At least Hobson had the welfare of his horses in mind (if the story is true). From what I read, the whole point of 'this horse, or no horse' was that it meant he could ensure that none were overworked. The one near the door was the most rested.

Yes theres calculations for the number of men and women’s provision to achieve equity.

Heres where I show I am not the only full-on toilet geek:

Men and Women
Women require a higher level of public
toilet provision than men, as they
require longer to use the toilet, and
have more reasons to use the toilet. [1b]
Women require twice as many
appliances as men to achieve equal
waiting time (see section 2.2), and have
historically been under-provided
with toilets, therefore it should not
be assumed that existing facilities
for women are adequate in terms of
quantity. When calculating the numbers of
appliances required, one urinal should
be counted as equivalent to one WC.
Then
The average time a person takes to use
the facilities should be taken as 1.5
minutes for women and 0.75 minutes
for men. Therefore, assuming an equal
number of male and female users, there
should be twice as many female units. From BS6465-4:2010, 11.2.3.4.3 (Time a person taken to use the facilities).
The levels of WC provision required will
be affected by several factors across
stations; the calculations shown here
are indicative only and WC provision
should be considered on an individual
station basis.
Network Rail’s recommends that 1 unit
(WC/urinal) be provided per 2500 -
3000 passengers of daily throughput.
Therefore, the recommended method
for calculating provision is as follows:
AM 3 hour peak x 4 = Daily peak Daily
peak / 3000 = Total units required
The ‘AM 3 hour peak’ is the total number
of passenger entries/exits on a typical
weekday between 07:00 - 09:59.
The average time a person takes to use
the facilities should be taken as 1.5
minutes for women and 0.75 minutes
for men. [2] Therefore, assuming an equal
number of male and female users, there
should be twice as many female units
provided as male units.
To calculate the provision required for
female/male WC’s:
Total units required x 2/3 = Female
Units
Total units required x 1/3 = Male Units
These calculations are only for the
provision of separate-sex facilities;
unisex facilities should be provided in
addition to the calculated ‘total units
required’ (see section 2.4).
Further guidance on calculating
provision is available within BS6465-
4:2010, and BS6465-1:2006.

1. BS6465-4:2010, 11.2.3.4.3 Time a person takes

to use the facilities Example Liverpool Street Station AM 3 hour peak arrivals and departures = 79,687 (2017) 79,687 x 4 = 318,748 daily peak 318,478 / 3000 = 106 total units 106 x 2/3 = 71 female units 106 x 1/3 = 35 male units

This is the amount of planning that goes toilet provision. Which then all goes down the pan when a wrong policy affects the whole lot.

Apologies the cut and paste went a bit wrong there. You can see the BS numbers which are the British Standards.

With the toilets, aren’t they going for the defence that the claimant could use the unisex ones? (Which I think succeeded in the other Scottish tribunal - not Sandie P.)

Not sure if that was possible for the showers as just male/female? So they’re going with “not our showers, so don’t blame us” for that bit.

Does seem odd though that they haven’t conceded as they have on the rest of the claim.

It’s been interesting though to have a non-believer defend the writing of the policy. Clear as day that she now thinks it’s wrong, but didn’t know any better at the time.

I was formally released from oath yesterday. Cross examination was such an intense experience.

Thank you for @Jimmyneutronsforehead and @Madcats for sharing tribunal tweets so diligently, and to others for commenting. Your support has been so heart warming ❤

I'm so sorry to hear about your dog Jimmy.

Thank you ❤️

It has been fantastic reading you holding your own and sticking to your guns and not letting them wear you down.

@FayeRC hi so glad you have popped in. Thank you for being so brave and standing up for all of us.

take comfort in the knowledge that your tormentors are getting a proper battering in a public arena, and that you are totally in the right.

this is an important case and you are an important person in this war.

thank you again 💕

Cheering you on @FayeRC

Wishing you all the best @FayeRC

You're doing great work here, @FayeRC . And let me add my thainks to @Jimmyneutronsforehead and the other posters who have done so much to keep us up to date.

It must be such a relief that that part is over@FayeRC, from the reporting here it sounds like you did brilliantly

Glad to hear from you Faye and hope you are holding up well after what must have been a gruelling experience.

Thank you for the updates, Mad and Jimmy and so sorry about your DDog. Sadly we lost one of our elderly doggos last week and are also in the early days of a different household. Maybe they can meet up and compare notes on their terfy owners.

There are many of us here supporting you Faye. I know it won't help much with the huge amount of strength and determination you've had to show to get to this point, but you are doing something that means a lot to so many women.

Finally caught up with you all!

Sincere thanks to @Jimmyneutronsforehead and @Madcats and all posters for their insight. Jimmy thinking of you, and I really appreciate you sticking with us with all the sadness around you, thank you.

@FayeRC this has been a thorny path, sending you our thanks for your courage and determination. Eid Mubarak!

Fantastic Faye!! From Frantic Frankie

The toilet provision planning info is interesting.

It doesn't take into account children under 8 and the fact they're often in the ladies not the men's because: Women still do a disproportionate amount of care for their own and other children: the men's public loos are often more disgusting and don't have much cubicle space; even when all the toilets are nice and two parents are available for some reason I observe that its still women who take kids to the toilet; and the newly observed phenomenon of fathers using the ladies because they have a daughter with them.

If I was any good at it, I'd draw a protected characteristics hierarchy of need triangle, like Maslow's triangle. It would be the most obtuse isosceles triangle every, with TIMs just above every other characteristic.

@FayeRC

Courage calls to courage.
It speaks across nations.
Across generations.
Across all faiths and none.
We are stronger,
Wiser,
And more determined.
With courage.

Thank you

Whereas, to missquote Spock - the needs of the many should outweigh the wants of the few, or the one.

Is that deliberate on the part of the judge, we know what happened in the Sandie Peggie tribunal.