Thread by @tribunaltweets

We will return at 2pm to Day 5 of evidence from the hearing of Ms B Hutchison & others v County Durham and Darlington NHS Foundation Trust being held at Newcastle Employment Tribunal

Full coverage to date and press coverage can be found on our Substack. tribunaltweets.substack.com/p/eight-nurses…

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

Abbreviations:
C/Ns - Claimants - the Darlington nurses
R/T/Trust - Respondent, County Durham and Darlington NHS Foundation Trust
NF - Niazi Fetto KC, barrister for Claimants
MP - Michael Phillips, solicitor for claimants
SC - Simon Cheetham, KC, barrister for respondents

PS - Pavel Stroilov, C’s solicitor, preliminary hearing
J/REJ - Regional Employment Judge Robertson
EJ - Employment Judge
ET - Employment Tribunal
RH - Rose Henderson, male trans identifying nurse DMH/H/Hospital - Darlington Memorial Hospital

GR - Grounds of Resistance
IX - Internal investigation
D - Disclosures
ECHR - European Convention on Human Rights
SH - Sexual harassment
SD - Sex discrimination
SA - Sexual abuse
PA - Panic attacks
HM - Hospital management
RE - Re-educated
I - Inclusive

The Claimant Nurses:
KD - Karen Danson
BH - Bethany Hutchison
CH - Carly Hoy
JP - Jane Peveller
MG - Mary Annice Grundy
TH - Tracey Hooper
ST - Sharen Trevarrow
LL - Lisa Lockey

Other names:
SS - Siobhan Sinclair, Housekeeper & Well-being officer, at DMH, now retired

SW - Sue Williams, HR at Trust
TA - Tracy Atkinson, HR at Trust

AT - Andrew Thacker, Director of Workforce and Organisational Development

The previous session can be seen here.

We should be resuming with Andrew Thacker being cross examined, after the lunch break.

https://x.com/tribunaltweets/status/1983132786069246288

More Abbreviations:
TG - Transgender
TW - Transwoman
CR/CF - Changing room or changing facilities
WS - Witness Statement
WA - Whatsapp
CLC - Christian Legal Centre
SEAL - Surgical Elective Admission Lounge
DSU - Day Surgery Unit

The link is live, but we await the Court's return.

We resume.

J - we have a request from a BBC reporter for a copy of witness statement of AT, JS and ?? I responded saying we had a spare copy. But the request is for digital. I haven't provided, not sure it's for us to do that. I only have in a bundle PDF. I raise as we may

J - have to get back to them. You may need to, I can't recall the case on this?
SC - witnesses having been sworn, I'm
J - my recollection is the request came in after the case. They are available here at the back of the room, that is why we order a 5th bundle

SC - wouldn't be easy to send AT statement
J - I have a complete bundle PDF
SC - and not all witnesses seen yet
J - no that's why I say
SC - isn't there a presidential ummm
J - it's a public hearing but a distraction, not a criticism. If journo listening it won't be right away

J - they can come to the back of the room.
SC - just been told the name of the case, Guardian news v Rozanov, it's on 2022 EAT12 Judge Tayler.
J- will look at in break and see where takes us.
SC - it was shortly after the judgement. A different pointgov.uk

J - purist approach is they are here, come and look but lifes not like that anymore. I've raised it, if you have more let me know later.
NF - I'll have to check too.
SC - those 2 page no you mentioned, para 20 and 21 pg 127, should be 337.
J - was unsure
SC - should be 348

for second ref.
J - apols AT
NF - looking at the letter, there were 2 issues raised, use of CR by RH and behaviour? that RH presence was the common factor.
AT - y
NF - to deal with that there were 3 qu for Trust. 1. was it factually correct RH male was using CR 2. Had Trust

NF allowed it and 3 should Trust continue to?
AT - yes
NF - was a male using the CR, you knew this stage it was correct
AT - according to letter
NF - factually correct RH is male
AT - according to letter
NF - had had briefing, did it get you that far
AT - told RH was using CR

NF - and RH was male
AT - can't say, but that RH was using
NF - how long after briefing execs did you know RH was male and using CR
AT - unsure, role of the IX to look at facts. To determine whether or not concerns in letter could be substantiated.

NF - Is RH male and using the F CR
AT - yes
NF - didn't need an IX
AT - no
NF - 2nd qu, had the trust allowed it. When briefed, was it clear Turst had permitted?
AT - yes, it was in letter yes
NF - clear it was permitted under Trans in the workplace policy
AT - y

NF - was the policy correctly applied?
AT - as far as I'm aware Yes
NF - so the QU really is the 3rd. Should the Trust continue to allow this state of affairs, you nod
AT - yes
NF - only way would be to consider own policy, the Trust to, YOur dept?
AT - we'd play a role yes

SC - speak up please
J - yes please
NF - why didn't Trust do that?
AT - My team initiated a process that would allow us to better understand issues and determine whether the details were factual. Trust resolution process used when concerns raised.

NF - haven't we established there was no need for an ix, it is uncontroversial, there was no need a male in CR, needed to determine if policy was right.
AT - needed to look at concerns raised
NF - in circles
J - also raises behaviour
NF - conduct and permitted use, if not permitted conduct wouldn't be an issue, we've established

AT - yes
NF - look at letter (reads v fast the letter outlining concerns.) Taking all this at face value, conduct would make women more uncomfortable, a man asking why a woman isn't changing in an enclosed space
AT - yes
NF - reads fast again - if a m in a f CR is taking a keen

NF - interest, being stared at, whatever form. it's the sort of conduct that would exacerbate discomfort, yes?
AT - yes
NF - right to think needs investigation?
AT - yes
NF - 26 F employees raising issues of conduct as a result of RH in the F CR
AT - yes
NF - why not

NF - have RH use alternative facilities
AT - we did talk about alternatives for anyone uncomfortable
NF - that's a diff question. The conduct can be ix separately. why no interim measure of asking RH to change elsewhere while conduct ix?
AT - I think it's a fair qu

NF - doyou have an answer?
AT - I don't
NF - policy issue doesn't need an ix, it's yes or no, right and lawful? Should we be allowing RH in the F CR
AT - yes, at the time my understanding was policy was in line with guidance.
NF - this letter says the policy is wrong and harmful

AT- yes
NF - letter even cites page 80, the policy in bold, about concerns might be raised about sharing with trans employees - please read, let me know when done
AT - yes
NF - should be resolved without pref for one PC or the other, shouldn't cause concern or distress to T or NB

NF - people. But all PC's must be considered. They cite further from policy, conditions for exclusion from SSS, the EQA says there may be circs where TG can be excluded. They ask Trust to treat it seriously, has implications for the department, they ask if RH could change else

NF - where. They made the suggestion. But no review of policy took place
AT - it was looked at with ref to update, resolution process looked at issues in letter. If you are asking if I looked at whether the policy was appropriate, no I did not
NF - pre- meetings, pre- media

NF - not done. You didn't look and didn't ask anyone to look?
AT - no
J - when was policy renewed? Do you know when?
AT - no
J - don't expect you to, but have a look.
NF - page 48 in bundle.
AT - yes
NF - TITWP (trans in the workplace policy) full review 22 Nov 21, thats this

NF - policy 25th Nov 24 next, but extended to Feb 25
J - extended 3 months?
AT - yes, if capacity issues and policy renewal a challenge, keep to extend to have a policy in action
J - capacity issues?
AT - yes, the owners need to keep it in date, review and recommend amendments

AT - Pat Winter retired prior to the expiry date of this policy was due to look at it.
J - that was your capacity issue?
AT - yes
J - automatic extension?
AT - no, need to go through extension ratification via board.
J - requested of board?
AT - yes

NF - if you are concerned a policy might be unlawful, would you still wait till expiring?
AT - if a real concern we would seek a review.
J - before the regular review point?
AT - yes
NF - the policy was left in place for the ordinary review process
AT - yes

NF - a wrinkle there because at one point you asked for it to be expedited.
AT - yes
NF - to bundle, 385, email from you to Moore and Atkinson 24 may 24 saying it's not current, please look to review. Background pg 383 and 384, email from Gillian Bailey to Moore

NF - saying there's a lot here, long email with lots of ref to guidance. Please read, need to see where ref to not current comes in. Pg 384.
*reading*
J - I have read, witness may not have.
AT - thank you.
NF - you saw this email in the chain that came with Mr Moores email

NF - not directly to you. We see 384 3rd para from top, ref to issues of language in another Trusts policy. *reads* Then says use of language not in line. Is that what you were ref'ing when you said not current?
AT - I saw an email from Jillian, didn't look at every point in

AT - chain, asked for it to be expedited.
NF - you say you know our policy is in need of an update, that's what you responding to?
AT - as you say I was cc'd into the chain and I thought it was clear it needed updated and asked.
NF - but not a full review because of the letter?

AT - correct
NF - in fact it was March 25 when it was reviewed
AT - yes
NF - a year later
AT - that's when it was ratified, the review started before that date, meetings etc.
NF - yes, TITWPP as it wasremained in force until March 25
NF - yes, TITWPP as it was remained in force until March 25

AT - yes
NF - you chaired the review committee?
AT - no
NF - need to check bundle, supp bundle at pg203. TITWPP prapaired by gillian bailey, is that not your signature
AT - sorry yes it is, not the review committee, it's sign off by Union and management, not detailed review

team.
NF - you didn't engage in lawfulness or appropriateness of this policy?
AT- correct
NF - para 77 of your WS. you say that policy was withdrawn after FWS ruling.
AT - yes
NF - 24 March 25 ratification date, and withdrawn the next month
AT - yes
NF - Bailey date, was in

NF - 5 weeks later
AT- yes
NF - so which policy applies?
AT - there's no policy in place at the moment
NF - you spoke to TA, concerns around July 23, she said addressed locally between management and Bailey. How did you understand them to have been addressed?
AT - raised,

AT - and provided advice. Gillian had given advice to management of care group.
NF - do you know what advice?
AT - no
J - we've read it, do you know what she said?
AT - no, I knew nothing about it till the letter from Miss smith, didn't know what had happened or who involved

NF - you have heard what the N have said, they say they weren't consulted before RH given permission to use CR
AT - no idea, wouldn't know
NF - part of policy is communication to colleagues of a TG person in the workplace. We get now to Regulations.
Aware of general obligation to

NF - assess risk to welfare?
AT - not sure
NF - Trusts obligation under H+S regs to assess risk
AT - H&S not my remit, another dept.
NF - understood, if I was to talk about H&S regs you wouldn't know
AT - have glanced at them, couldn't quote them
J - I'd be impressed if you could

NF - you understand the concept, assess risk before you do things
AT - yes
NF - did it occur to you after the letter from 26 nurses, that it was't just discomfort but a risk to their health, safety and welfare.
AT - not something I considered at the time, no
NF - what the Trust

NF - did in response to the letter was to apply the TITWPP to them.
AF - yes
NF - go to 77 and 78, you say they allege the PCP disregards sex and you go onto say PCP allows access appropriate to gender
AT - yes
NF - that is the response to the complaint. We allow access to SSS

NF - according to GI, a male in this case presenting as trans
AT - yes
NF - RH's identity as a woman was acknowledged by Trust when RH said they were.
AT - yes, personally not involved, I was unaware of RH till concerns raised.

NF - go to pg 84, read from bottom of 83, main content of policy. At 84 under process the Trusts recog of TG Identity starts the moment they say so.
AT - yes
NF - use of F CR was given on that basis, on RH's wish to use it
AT - I'd assume, I wasn't involved, RH spoke to manager

AT - that that is how RH intended to live life. I wasn't involved.
NF - at 91, section you are ref'ing, guide to managers and employees, issues which may be considered includes when using GN or SSS this should start from when employee wants it to start. They are legally allowed

NF - to use any toilet facilities they choose.
AT - yes
NF - even though RH was not bio female.
AT - yes
NF - regardless of sex in other words
AT - correct.
NF - another specific of policy, and F not wanting to be in there should go and change elsewhere, pg 92

NF - under gender specific facility use, take a moment to read
AT - can't see that, but says if others don't wish to share gender specific facilities should use others
NF - doesn't say what others, or how to make arrangements, just if they don't want use alternatives
AT - correct

NF - line above says concerns will be dealt with swiftly and harassment won't be tolerated, clear from policy that concerns about sharing won't result in the TG person changing elsewhere, but rather those people changing elsewhere.
AT - yes, if that's the interpretation yes,

NF - but it's clear, if you don't want to share, go elsewhere
AT - yes
NF - if women object, whatever dealing promptly means, if anyone moves it's the ones who don't want to share
AT - yes
NF - the policy prioritises the right of male employees to access over the use by females

NF - when changing
AT - that's your interpretation of a very brief line
J - brief you say
AT - yes one sentence in policy.
J - reading that one sentence, what other interpretation is there? Says use somewhere else, brief of not?
AT - yes

J - anything else in policy that changes the meaning?
AT - not that I'm aware of Judge.
NF - you know from TA that complaints were raised by F employees complaints raised in July 23, is it reasonable for them to expect action by Trust by May 24.
AT - I became aware in APril but

AT - yes. It wouldn't be my responsibility individually to have done that.
J - whose might it be?
AT - I would expect, we've heard from C that they had complained to AQ and others, I would have expected them to follow through, my teams involvement came with the letter.

NF - what happended to the C's is they were told to use alternative facilities
AT - not sure, alternatives were identified
NF - they were told if you didn't want to share F CR you should use alternative
AT - not sure where you read that
NF - page 92

NF - and what they were given was a room opening onto a corridor
AT - it was a locker rather than a CR
NF - it was a meeting room with a single cubicle with lockers
AT - yes
NF - they say an infection risk, aware?
AT - no
NF - it was meant to be temporary, yes?
AT - yes

NF - temporary until when
AT - ?
NF - till what changed? You were involved in this
AT - I was involved in finding an alternative space
NF - you say you *reads fast* email from ms mccree from procurement and you responded, provided her advice to AM,
AT - yes

NF - in stages, pg 427.
J - bear with ... at a convenient moment...
NF - this is the best place to stop
J - comfort break, you know the rules. See you in 10 mins.

@threadreaderapp unroll please.