Thread by @tribunaltweets

Good afternoon. This is our reporting from the afternoon of day 2 of the hearing of Bethany Hutchison and others vs County Durham & Darlington NHS Foundation Trust - "the Darlington Nurses" case

Our substack page on the case, with reporting from yesterday, is at tribunaltweets.substack.com/p/eight-nurses…

When the court resumes, Bethany Hutchison's (BH) cross-examination by Simon Cheetham KC (SC) for the Trust (R) will continue.

Please refer to the substack page above for a full list of abbreviations we are using.

We report what we hear in good faith but do not provide a verbatim record of proceedings.

We are still waiting for the livestream from the Court to begin.

[The stream has resumed - I am not sure how much we have missed but BH is already being questioned]

SC: [ref] this is part of resolution procedure. You see it says staff can have accompanying colleague or union rep not in a legal capacity. In your WS you say 9/9 letter from Sue Williams invited you to meeting. [ref] here is that letter.

SC: As I understand, you say the refusal to allow solicitor, or, insistence that only TU rep / colleague allowed is harassment?
BH: Yes
SC: This letter is harassment?
BH: yes

SC: Are you saying you shd have been treated differently from anyone else, under the resolution procedure? Should have been allowed solicitor?
BH: Yes bcs of us being potential claimants / witensses in this case

SC: You said 'gain the upper hand'?
BH: Yes biassed, bcs SW present at all stages
SC: Am focussing only on this letter, and the representation allowed. You say shd have been a lawyer?

BH: Yes. Bcs we had to set up our own union - ours would not help - but R refused to recognise the union.
SC: You weren't seeking recognition.
BH: Yes we were.

NF [intervenes] the harassment claimed is not the offer of union representation, it's the refusal to allow present of solicitor - even as an observer, not as advocate.

J: To clarify - the issue is the refusal of lawyer attendance?
NF: Yes that is the issue before the tribunal.

SC: [page ref] Letter 27/6 from solicitor to the Trust, listing claimants, says the claimants have been invited to resolution procedure but have declined to engage.

SC: How did you expect employer to resolve, if you didn't engage?
BH: They should have resolved much earlier -
J: Not the Q.
SC: How did you expect R to resolve?
BH: Had already made our concerns entirely clear - no need for me to be involved more.

SC: But surely resolution procedure necessary?
BH: Didn't know anything about any resolution procedure - until this point.

SC: [ref] Briefing note dated 17 July - requesting Mr Newton to act as investigating officer. Lists 3 points to investigate. Include your letter from 26 colleagues, and the follow-up letter.

SC: Do you agree this investigation is looking into your concerns.
BH: Yes
SC: No doubt about it?
BH: Not from this letter, no.

SC: So why did you refuse to get involved?
BH: Felt it would be biassed.
SC: Felt investigator would be?
BH: We asked for a CV but were not allowed to have any information about him at all. And, involvement of HR - had been very poor experience so far.

BH: And we had already started legal proceedings - was worried R would use this to investigate us, trip us up.
SC: But they were investigating your concerns!
BH: Not how it felt, all the way along. Felt that Trust had already put us as being 'in the wrong'

SC: You also complain about R writing to you personally instead of solicitors. But this was not about the legal proceedings, was about resolution procedure
BH: I experienced as harassment - was already off sick with stress.

SC: Not quite my Q which was -you complain about R writing to you *about the legal proceedings* - my point is these letters are not about the legal proceeedings?
BH: Yes.

J: Where on list of issues?
SC: [refers to list of issues point]
SC: They are writing about the resolution procedure.
BH: Yes; I think we felt by now that all communication should be to the lawyers.

SC: You were an employee, this is an internal process, you say R should not have written to you about it?
BH: Yes, should have written to solicitors.

SC: And why is this harassment relating to sex?
BH: It was persistent.

NF: [intervenes] this seems to be on border of asking witness for evidence, and matters better for submissions?

J: Disagree.
NF: The Q seems to be 'how do you consitute as a legal claim?
J: No, am allowing the question.

SC: You did though participate to an extent
BH: Yes
SC: You gave a witness statement and were asked some follow-up Qs. [Ref]. 10th Jan.

SC: You were sent this email, and here [ref] this is your answers. We can see it's quite a full response. You are not just participating - it's quite a lot of information
BH: Yes, some information.

SC: I have not understood why you didn't decide either not to participate, or to do so fully. Why half way house?
BH: We wanted to show willing, but I was not prepared to be interviewed by 2 people without lawyer able to be there.

SC: You got outcome letter including notice of right to appeal, you didn't appeal?
BH: No we didn't.

SC: [is checking his Qs list etc]

SC: In your WS you refer to what others have said to you. We heard this morning, you've talked about ppl fearing for their jobs.
BH: Yes

SC: [ref] Transcript of mtg with Kemi Badenoch.
BH: Yes
SC: you say "this is my job, they have basically said I might lose it". Who is 'they'?
BH: Noone directly. But constant talk of disciplinary actions. Was constant worry, to all of us.

SC: Nobody has threatened your job, or to take away your pay
BH: Not directly, no.
SC: No disciplinary action taken.
BH: Not yet, no.

SC: Your fears are unfounded.
BH: Completely disagree. They see me as a real problem, when I was just raising a concern. I'm certain they would love to get rid of me.

J: You talk in this same doc about internal investigation. Is that the one SC has been asking you about?
BH: Yes, it all felt very entwined. I heard from other colleagues that they had lots of Qs about RH complaint during this same investigation.

J: To clarify by 'investigaion' you mean the resolution procedure?
BH: Yes

SC: No further Qs for this witness.

J: I am going to collate Qs from my colleagues which we'll then put to you. Short break - as before, you must not discuss case with anyone meanwhile.

[Pause in proceedings]

[The livestream has closed for the duration]

[The livestream is still closed]

[We resume - J is questioning BH]

J: Did any of you speak to Rose about this?
BH: Do you mean, before the letter?
J: Yes
BH: No, not to my knowledge

J: Did anyone speak to Rose directly, after that?
BH: Not that I know of

J: So the changing room. In your experience, how long in there?
BH: Five minutes really - you just get changed and go.
J: Just you, or is that everyone?
BH: I wouldn't know about anyone else, but I am just in and out ASAP

J: [missed]
BH: yes she was the sister.
[J is checking names of other sisters] changed in the same room?
BH: yes

J: You were on sick leave July-Sept, did you have any contact from R?
BH: I don't really recall - I think maybe a message from Clare Gregory but not certain.
J: Not unusual for someone sick to be contacted by manager.
BH: No

J: We have some transcripts [ref] SC asked if it would be different if RH had 'fully transitioned'. You said no. Would that always be the case?
BH: Basically yes.

J: We have listened to the first part of this over lunch and will listen to the rest later. At bottom of page you talk of 'sexually active male' sharing changing room. Then [can't hear J at all - summarising what BH has said, she is agreeing along]

J: You say there should be transgender changing rooms. Then you say 'if fully transitioned some ppl might feel different [I think - J very unclear]

J: Was that your view?
BH: No not my view at the time - some others in the room I think said so. Some women will have said 'yes of course' I think.
J: But your position hasn't changed
BH: No

J: We are going to have an expert witness tell us why safe spaces are important, dignity and privacy. Main concern - correct me if wrong - was maleness?
BH: Yes - poses a threat to women I would say.

J: So where is the risk if RH fully transitioned?
BH: Men are still stronger, and you can't change sex. The fear factor still there - voyeurism still a risk. No way to know what a man's intentions are.

J: You say, still risk
BH: Absolutely.

J No more Qs. Any re-exam NF?

NF: Yes a little.

NF: [ref] Sorry - wrong ref - will come back to that while solicitor looks for it.
NF: Moving on. We have 2 mtg transcripts, Feb and May 24, where were the meetings held, was either in the room shown on the plan we looked at, with the one-person changing cubicle?
BH: Yes was used for the May one

NF: We have found the right ref [gives]. Or have we.
NF: [ref] now we have it. Email from Lindsay Watson - says not sure things will get any further, but says have been approached by more women from different team. Were you aware of the other team?

BH: Yes I had heard of another member of staff, I believe she was asked to change elsewhere

J: [asks for clarification] Was this about RH, the other concerns? Or other staff member
BH: No it was re RH
NF By team you mean?
BH: Different department - not DSU.

NF: [Ref] this is correspondence about meetings re resolutions procedure, being accompanied, you had asked for solicitor. Was that matter - solicitor attending - something you entrusted *to* the solicitor.
BH: Yes

NF: We can see here a letter from your solicitor about this?
BH: Yes
NF: And you knew of the correspondence?
BH: Yes

J: It says 'represented' here?
NF: Yes accept that. Just wanted to confirm witness aware of correspondence.

NF: You were asked about your participation and then non-participation in resolution procedure. You said 'it was all clear from the letters'. Did you mean the March letter with 26 signatures?
BH: Yes
NF: We will look at that [ref]

NF: Your proposal is here - you ask for the simple solution, as immediate response, is for RH to change elsewhere?
BH: Yes
NF: We will look at the resulting report [ref]

NF: First time we have gone to this in evidence.
J: Yes [clarifies that can be discussed even so]
NF: We see names of investigating team, dated April 25. Your letter had been over a year earlier
BH: Yes

NF: Concerns are listed - include, use of women's changing room by RH biologically male.
NF: And the final outcome report [ref].

NF: The concern is addressed in the 'conclusion' here - says clear that Trust did allow RH to use changing room, and had done since 2019 - so that part upheld. Also says, in keeping with Trust 'transitioning at work policy'. We see policy addressed at [ref]
BH: Yes

NF: The last sentence - notes difficulty for employers addressing conflicts of interest in meeting EA2010 but says that is outside remit. Was your position that R should re-address the policy?
BH: Yes
J: Re-address re changing rooms?
BH: Yes

NF: You were asked about transcript of mtg with Kemi Badenoch. J asked you about reference to R 'implementing internal investigation' and you said that meant the resolution procedure. But there were two of them - one is this we are looking at, the other is the one launched by RH.
BH: Yes

NF: It's mentioned in the one we are looking at. [reads very fast] It says - "out of scope, refer back for next steps". Are you aware of any 'next steps'?
BH: No

NF: Aware of any decision taken about RH resolution procedure?
BH: no

NF: You were asked about 'standard letters'. Have you ever been involved in a resolution procedure before?
BH: No
NF: Grievance pocess?
BH: No

NF: Legal proceedings? Media interaction?
BH: No

NF: When you referred to resolution procedure as investigation to Kemi Badenoch, which of the 2 resolution procedures did you mean?
BH: Felt like both to me.

NF: No more Qs

J: [releases BH from evidence]
J: We now have Mr Hutchison [sic] who will simply swear to his statement.
[MrH affirms his statement]

NF [takes MrH through is this your statement, your signature, you say true]
MrH Yes

NF I have no Qs.
SC: Nor do I
J: Nor do I
[MrH released from evidence]

[They are discussion next witness, and timings]

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