Thread by @tribunaltweets

Welcome to the afternoon session of DAY 6 of Bethany Hutchison & others vs County Durham & Darlington NHS Foundation Trust - as known as "the Darlington Nurses" case.

2pm start.

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Abbreviations - a comprehensive list available on our substack:

J/EJ - Employment Judge Sweeney

P- One of 2 Panel members

C/Ns - Claimants - the Darlington nurses

NF - Niazi Fetto KC, barrister for Claimants

MP - Michael Phillips, solicitor for claimants

R/T/Trust - Respondent, County Durham & Darlington NHS Trust

SC - Simon Cheetham, KC, barrister for respondents

RH - Rose Henderson, male colleague claiming a female identity

DMH/H/Hospital - Darlington Memorial Hospital

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, 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 at Trust

Further:
CR/CF - Changing Room or facilities
GR - Grounds of Resistance

IX - Internal investigation
SH - Sexual Harassment
SD - Sex Discrimination
HM - Hospital Management
TG - Transgender
WS - Witness Statement
DSU - Day Surgery Unit
RP - Resolution procedure
TITWPP - Trans in the workplace procedure policy
EQA - Equality Act 2010

[Tribunal begins 14:09]

[FN asking J to wait for someone]
J- Are we ready to hear from Tracy Atkinson?
FN - We are.
[J takes TA through oath on Bible]
J - Take a seat and familiarise yourself.
[Sorting water]

[SC takes TA through WS and confirms name and work address.]
SC - Make a minor correction page 169. Para 94. There's incorrect page number there. Now turn pages 171, signature and read through recently and confirm contents true?
TA - Yes
SC - You asked me to mention u have a health issue and may need a break at short notice
J - Of course

SC - Page 155 in WS. You refer there to a note of the meeting. Find bundle 3 please, page 107. [Finding]
In your WS you say these are the notes of just after the meeting. Who is this?
TA - one of the theatre managers

SC - Now 159. Section of your statement. Next steps meeting April 2024. Now go to 117. So an email from Claire Gregory to Gordon Smith. Go to 116. There we have your email to Claire G. Simply referring tribunal to those refs. One more Q.

SC - In your WS para 83, you refer to an email on NHS confederatation guidance. What knowledge did u have at the time did u have to that ref?
TA - I had conflicting knowledge, certainly wouldnt do an exam on it.
SC - Over to NF

NF - You are HR?
TA - Yes multiple, HR and Occupational help (missed
NF - Slow down please, U say youre head of heath and Wellbeing?
TA - Yyes

NF - And safeguarding (SG). Now u know what this case is about. Would u agree a biological male raises potential SG concerns?
TA - How I would assess risk is how is presenting. In terms of bio male, not necessarily bio man in itself would present risk

NF - Fully clothed in working theres no SG concern there
TA - Yes u would assume relatively safe place to be
NF - Context here is F only CR. That has lockable door
TA - I haven't seen that

NF - Evidence we heard was lockable keypad
TA - Changing involved stripping down to underwear and dozens of F using that space
TA - Yes
NF - And they range in age and size, as young as 18
TA - I couldn't confirm but about 300 ppl use that CR

NF - Fo u have any dealings with student nurses?
TA - Not necessarily [voice dropping out, Judge tells her to speak up]
NF - Youre familiar with fact that students may be school leaving and involves hospital placement?
TA - yes
NF - there will be times just one woman changing?

TA - possibility but cant confirm.
NF - and possibility if there is bio man that can use CR that person may be at same time as one F user?
TA - are u referring to TG?
NF - yes
TA - potentially
NF - re SG concern - u said context so we have to talk about context

NF - Its relevant to risk assessmentas to how strong the man is
TA - I wouldnt assess on stature - I'd assess on what is presenting and not stature in general.
NF - Bio male under female id fully sexually functioning - that also SG risk?
TA - not sure

[TA is dropping in and out of mic]
NF - bearing in mind this instead just risk of assault its risk of embarrassment and dignity - whether TG is known to them?
TA - yes, everyone has a right to raise concern and thats how we deal, factors of info

NF - Putting it all together re SG risk
TA - I didnt say no but if concerns came to me I'd need to k ow what those facts are and presented to us.

NF - A bio male claiming F iD is using F CR is larger than most F users, fully sexually functional, not known to users, and may be alone with them, would u accept that as context as SG risk to be looked at?

TA - not sure thats context of the case. May be SG concern. More about vulnerability. Vulnerable duly, child, need clear allegation and then we ID whether than person is vulnerable
[TA being told to slow down]

[J asking for clarification on TA. Now asking mic to be sorted]
NF - Slow down please. I think I'm having a an RSI in my ear
J - Im struggling to keep up on the keyboard

NF - Another feature in the mix. Another element raised by Cs. The situation the bio male is behaving is ways that cause fear and alarm. That would be furyer element in potential DG concern?
TA - Yes
NF - Re vulnerability- does circs matter?
TA - yes

TA - I wasnt a decision maker and wasnt making SG decision but opportunity for all parties whether TG colleague feels vulnerable or nurses. All considered.

NF - Was there any consideration of F users of that CR at any stage in your involvement ?
T! - we were trying to assess situation. I was unclear what we were dealing with. I didnt know individuals. Id never met DSU colleagues or met Rose.
[Judge asks again slow]

[Judge clarifies]
TA - our role is to support
NF - stand back and consider. Was any assessment or consideration made to F users of that CR to share with bio male?
TA - we were conscious of overarching principles. In terms direct RA, that would need to be done by the service.

TA - we have lots of sites. I wouldnt be responsible for taking risk assessment (RA)
NF - are seeing one was done?
TA - we were trying to understand concerns, changing then it was behaviour, it was unclear what we were dealing with. Conduct or sharing or something else

TA - We wanted to understand so we could deal with it appropriately
NF - I'm going to ask about raising complaint. We heard issues being raised pre 2023. Para 9 of Miss Sinclairs [SS] evidence
[J and NF finding in bundle]
NF - Read please

NF - SS refers there to Nurse wilson. Were u aware?
TA - No
NF - Turn to witness bundle. Miss Shields Statement [JS]. Para 16.
[TA finds]
NF - JS speaks of colleague who raises concern. Were u aware?
TA - No

NF - that was 2022
TA - I wasnt there then.
NF - [another page] There u say u became aware 2023 by HR advisor?
TA - Yes
NF - go to 257. Sequence of emails here. All of which predates Feb 2024. Start at 274. At the bottom we see an email from Lesley smedley.

NF - She writes to [names 3 people too fast] who?
TA - HR, theatre manager, and theatre manager
NF - [reads email] Does this correspond with para 11 of your WS when u first became aware if concerns?
TA - Yes
NF - but this is July not August? It's before

TA - it was still unclear what the concern was or the matters
NF - Pick that up later. This specific issue in theatres, what was it?
TA - Concern there I think.. erm.. let me think. I cant remember.
NF - Jillian Bailey, why is she having the convo?
TA - EDI officer

TA - It was how to support local manager and I thought JB would be best placed.
NF - it says JB may come and look at awareness in wider team. Instruction?
TA - no I think trying to understand the situation in more detail

NF - then a jump in chain. Linda Watson?
TA - a matron in the theatres
NF - she says "im not sure we got any further than this. Other concerns about the CR". Were u aware of this?

TA - No I've seen it since
NF - it seems u were brought in by miss medley?
TA - yes
NF - Miss Watson says " anything u need from me?." Then another gap. [Reads "flagged but not sure anything done" so we are now past August. You say you were made aware by Smedley.

TA - AN issue being described. AN issue. Our role is to get involved and support managers so yes
NF - Then another bit - it was an "education talk. She's not transitioning. A lot of staff struggle with her in the CR" [reads more] So now in July it seems whats

being done is an education talk. Anything else?
TA - No I dont know what thats referring to
NF - The you have come into the chain. U appear being CCd. Thats w5th September and u come in and u are the HR they want to steer?
TA - It reads like that...
NF - It does.

TA - I think it was more an EDI perspective
[Missed]
TA - I was trying to work out if it was an HR matter. I was trying to get best ppl to move it forward
NF - U say "did this happen" so it's a past involvement? So u have proposed JBs involvement before?
TA - yes

NF - Bottom of 272 [reads " this has not been addressed. Mentioned as an education talk"] I read that as those ppl came and gave an education talk to those complaining?
TA - No, not awareness, more about the matter theyre discussing.

TA - that was about what the concerns were and balance the concerns... to try and understand
NF - Its more than that. It says education
TA - possibly. I wasnt sure what the concern was. I said to go and ask what was needed re support and advice.

NF - Did you know by then what concerns were?
TA - No we hadn't had anything formal. Hadn't seen Ulyses. Not saying there wasnt one. Just hadn't seen it.
[Judge clarifying. ]
J - you say you cant remember if Rose specifically. Were u aware if any other TG colleagues?

TA - No
[Missed]
TA - there were concerns about TG accessing facilities and about Supreme Court ruling. What were the concerns and whether Jillian could assist.
J - appreciate its not your email
TA - I assume shes referring to theatre managers

NF - maybe an obvious Q but did u know who the ppl complaining were? Was it obvious they were F users?
TA- I didnt know no.
NF - How did u gauge its seriousness?
TA - I would have expected formal complaint. Sorry I'm going to fast. I would be assessing that risk and concerns

NF - As early as 2023 Smedley is saying this is a growing problem?
TA - Which is why Ms Laidler is copied in. I dont tend to get involved in those type of situs
NF - You didnt think it was serious enough for u to get involved in?

TA - No I just thought Jillian best placed because we didn't know the level or the risk etc

NF - Right to say the way you saw it as simply noise in the system?
TA - No. NhS is a huge org and I need to make sure my teams support concerns. We are not here to manage concerns just support them.

[NF takes to different comms where email says "noise in the system"]
NF - That was just noise in the system?
TA - That is a phrase used yes. Noise in system was just describing that I didnt have a formal case at that point.

NF - We saw at 271 Miss Bailey came into the chain and saying best person to speak to. Then a meeting between Bailey and theatre managers. Thats what this email is from Miss Bailey. Have you read it?
TA - Yes can I remind myself though?
NF - yes

NF - This is with theatre staff. Tracey Wainwright theatre manager. [Reads] "Ive had a think since we spoke and theres a recommendation to go back and explain that Rose has a right to ID as her gender" - youu saw that advice?
TA - yes

NF - Did you see Miss Watson response to that?
TA - Not sure I did actually. Dont recall
NF - Miss Watson being theatre matron?
TA - yes
NF - Shes the one who says she will communicate to -she quotes from the email - "complaining staff"?

TA - yes
NF - [reads email again about "go back and explain Rose has a right to ID as F"] Mr Thacker said you notified him in 2023 and youu said you raised them locally.
TA - That was later on was it not?
NF - yes later sorry I wasnt clear

TA - I think it was when we got letter of concern
NF - letter with signatures?
TA - yes. I hadn't received anything more formal following meeting with JB.
NF - You told them that essentially they had to lump it?
TA - No I said I had nothing more formal at that point. About balance.

NF - what was the balance?
TA - a TG colleague and conflict that brings in with national guidance
NF - So balance was that women have to share?
TA - I hadn't had a complaint via Ulyses or something - which is where my team would normally get involved.

NF - Did u ever see Miss Bailey's advice?
TA - which?
NF - at bundle 2
TA - I can't recall. Jillian is very good at keeping us up to date but cant say I saw the advice.
NF - Is that a good time to stop?
J - I was just about to ask

[Tribunal adjourned for 10 mins]

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