Thread by @tribunaltweets

We will be live tweeting Day 8 of evidence from the hearing of Ms B Hutchison & others v County Durham and Darlington NHS Foundation Trust being held at Newcastle Employment Tribunal. We anticipate a 10am start but delays are not unusual.

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
JB - Jillian Bailey, Workforce Experience Manager at Trust

We anticipate a 10am start today although delays to proceedings are not unusual.

Llink to our Substack: substack.com/@tribunaltweets

Still waiting to join today's session.

We begin
Next witness JB
SC - discusses with J policies sent through, not critical
J - this morning?
SC -no last night. Wait and see?
J - one moment Miss Bailey

Apologies that was NF not SC

There is some discussion about documents and question of Tribunal making recommendations.
J - this is relation to content of March 25 policy. Speak for itself?

NF - yes, take you point, will make judgement call.
J - claim out of time. March 25 relates to that point.
NF no need to make application to amend.
[missed but discussion on this]

J Chapman and Simon powers to adjudicate. We can only judicate on claim presented
NH yes, leaving that aside, question of recommendations and remedy

SC -will send through revised timetable. Today JB and Miss Wainwright.

JB affirms

J - please familiarise yourself with what is in front of you.
SC - deal with minor corrections, we find your statement, can you confirm your name, address. Pointed out an error Para 2. 'before taking on current role...2011' should be 2022. Later refers to Nov 22

SC - [more minor errors corrected numbering etc]
P191 13 March email NHS Futures, page ref - that doc not in bundle. Policy not email this is rogue page ref.
Discussion with J on email and policy. Policy not in bundle.

SC - P195 para 14 last sentence ref to policy guideline. What is the policy for policy guideline?
JB - doc produced by internal assurance and records team an outline of what approach to policy across organisation. Content, policies and structure.
J policy about policies?

JB - yes
SC - [more on corrections confirming with JB]
SC q from tribunal yesterday afternoon. Mr Moore Transit in Workplace policy. Go to p79

SC - In policy can you turn to p84. You recall ref to sentence under 'Process' 'begins they inform' keeping this in mind, turn to p91

SC - you have section App2 Guide to Mgrs and employees
If there is emp who is considering transit. Who talk to
JB line manager

SC - 'issues that might be considered...agreeing the point' Is that something discussed?
JB yes at which point they would commence using gender neutral or single sex

SC - at what point is that emp entitled to use
JB when the individual is living life fully in that gender.
SC thank you

NF does policy ask what that form that declaration would take? More to it than saying to line manager
JB changing records and suchlike think it's mentioned in policy.
NF not asking to speculate
JB - declaration to line mgr

NF 'living life in gender' is this anywhere in policy
JB no. May be diff for diff people
NF - You report to Mr Moore, you joined in 2003. 2010 diversity lead. Your statement change in title and role, were you responsible for it between 2010 and 2022.
JB - no

NF - para 2 your statement
JB I was um appointed into role in April 2010 and role finished 2016 when I took on diff role, Learning
NF when EDI Role
JB Nov 22 Workforce Exp Manager

NF replacement post for Pat Winter who wrote policy.
Alex O'Brien appointed when PW retired

J does that relate to your post
JB I manage Alex O'brien not managed previously by person before me. Change in structure Andrew made when post became vacant

NF - layers in hierarchy. Mr Moore, then you, then AO and I hadn't understood before that Miss Winter level
JB yes in same post. When Alex appointed they were same. Alex and Pat. So, AM managed Pat.
J - my bad!
SC sorry Mrs Bailey [clarifies structure]

NF sorry above not SC

NF - Polices - to oversee what does that mean
JB sometimes Alex will update policies, sometimes update one sometimes I would but I would oversee if Alex updated, I would check updates he was doing
NF what would trigger

JB normally when they expire, sometimes updated if there is other things, legal changes
NF who looks out for those
JB anyone in team

NF anyone's job to look for legal update
JB we would all keep up to date with changes that are happening
NF anything that would prompt you to look at policy ahead of time, on urgent basis
JB um - if was mistake that would potentially need to trigger change

NF - if raised there is harm or is having impact on group of emp with protected chara
JB possibly
NH or H&S leg
JB yes
You are CIPD
JB not a qualification, but a prof body

JB there are diff levels of membership could be based on experience, that would be decision made by them
NF but your training and qual? Do you have one?
JB I have a post grad dip in HR Mgt
NF - health and safety law?
JB - no

NF - mandatory training every 3 years in house, internal NHS training?
JB not in house always to the trust itself a lot is national
NF different modules, do you do health and safety module
JB yes
NF every 3 years

JB which ones?
NF you will have to tell me, what training do you do?
JB quite complicated lots of modules, skills for health, skills for training, diff modules will have renewal date,

some 3 years some 1 year.
NF which are you required to do
JB - all of them under Core Skills
NF includes EDI
JB yes

NF - you drafted transitioning policy in 2016
JB - yes
NF did you correspond with LGBT group?
Jb yes

NF when through diff drafts
JB yes normal for policy
NF that was never implemented?
JB yes

NF PW was the author of the one ratified in 2021
JB yes
NF did you have any knowledge of this
JB no.

NF - so far as your prep of earlier - was any involv of legal experts
JB no

NF at what stage is impact assessment done?
JB done and updated as diff versions as diff drafts as done. Initial draft would be done if shared for network group, unions input into policy review

NF - policy might be reviews what about the impact ass or equality analysis when a complaint or worry comes up?
JB the impact?

NF yes when it comes to you, the impact may be harmful/unlawful, is it possible, ever done to review in isolation, just that bit.
JB possible
NF ever done?
JB think perhaps the spirit be done but not formally recorded.

NF - page 103 bundle 2. Not your wording, it became a policy you were overseeing in your role 2022. Nature of doc need to understand 'impact assessment' looks as thought proforma?
JB yes
NF various questions first page - benefits, barriers etc, question of links to conflicts

NF - Step 3 what is impact, various diff characteristics on matrix to be filled. Under sex/gender - no diff impact, no. Religion no impact - no.

You see where my q is going. When it came up that there were exclusively women saying this is having adverse impact it cuts right across this section the impact on one sex. Was there ever a thought to revisiting given women raising

JB the assessment wasn't updated formally.
NF if policy failed then not implemented
JB not sure if fail or pass approach, it is there to doc what the impact may be

if under any of these categorise if there was a significant impact on group, surely that would be a back to drawing board moment?
JB YEs think the impact would be looked at on individ basis on the facts they are presenting

NF don't understand?
J didn't catch last bit, forgotten?
JB yes just fallen out of my head
NF as and when it happens, when a group says it has adverse impact and falls within protected chara isn't

this when alarm bells should go off, need to go back to drawing board
JB would be done on indiv basis, impact assessment as and when

NF - quotes single sex female space example - page 105 you say no impact known between sex and gender, do you understand how that conclusion reached?
JB no I don't understand didn't speak to Pat about that.

NF policy assumes that there is a right of someone whose gender identity can use facility they chose
JB yes
NF and those that sex does align don't have exclusive use

JB yes
NF and they are displaced if object
JB look at other options
NF stronger than that?
JB yes

You talked about legal updates re Forstater you are nodding, came out June 21, bio sex immutable, and that having qualified as protected belief.
Yes

Came to knowledge of your team
YEs
Did anyone make the connection between that and your policy
Yes
Who made connection, you?
Yes

NF - did you go back to policy at page 105?
JB - sorry what?
NF did you go back to policy? Did you consider it was correct given Forstater
JB in terms of policy while it was known policy already had 'can use other facilities'

NF it respected the belief in that way
JB Yes
NF Isn't this detrimental treatment?
JB I didn't see it as detrimental, an option available if they manifested that belief.
NF policy doesn't even say care will be taken to make provision. Just says 'go use some other facility

JB you are making statement not asking question
NF [clarifies]
JB as part of update I wanted to update but at that time it did provide for it.
NF are you saying at this time are you agreeing it didnt provide?

JB that's what policy says, yes. They could chose to use other facility
NF was there risk assess ?
JB - if anything raised
NF so these policies are implemented [didn't catch]
JB correct

NF surely not line manger post implementation to be first to make judgement to make judgement as to whether it is safe under health and safety legislation?
JB - I don't think policy would be approved if unsafe. It would be a process, the checks and balances as part of process

NF at what stage would it be considered compliant with health and safety?
JB when it was written, or with unions, policy review, later stages - approval stages/process.
NF my q is was there provision for it to be done, a requirement at some stage?

JB - not a H&A policy?
NF no but it deals specifically with washrooms, changing toilets to which H&S leg is applied, yes?
JB Yes
NF hence my question.

NF - does this policy comply with legislation
JB Pat has not identified whether it is impacted.
NF I am trying to understand process. Yu first became involved in these matters July 2023.
JB Sept
NF can I ask you about July Doc 2 p269

NF - bottom, email Miss Smedley to Miss Watson, you are named in it. Have you seen it before
JB yes
NF part of correspondence relates to a similar raised to R but in theatres, and was Miss Smedley says bringing you to discuss with wider team

NF do you remember speaking to theatres in July?
JB no
NF not asked
JB no
NF in Sept you did get involved
JB yes

NF we see you coming in page 264. you are nodding
JB yes
NF - just to lead into that, bottom of 268 August Miss Watson to Miss Lesley 'approached by different team...concerns' goes to Miss Atkinson top of 267 Miss S said 'has this been sorted' Sept.

Then 266 second email 'helpful to have HR input, esclated by theatre team. Suggest we speak to JB
See your reply 26 Sept, you then meet with theatres team, see the email you write after having done that
JB yes after having done that yes

NF you describe the meeting with TW and LW. Miss Robinson also at meeting?
JB yes
NF you describe the meeting p27 - 35, you took notes
JB it wasn't a not of the meeting, it was notes I made as the meeting was happening.

NF - go to those, bundle 3 vol 1 page 755.
J - bear with me for a moment

NF - [advised J how to do correct keyboard shortcuts.[
NF - p755

NF - important that we read your writing you are making these notes [reads from JB notes RH male trying for baby with partner...no alt facilities...cubicles...complaints, boxer shorts, stubble...cultural despite your discomfort...completely understand...we have a

JB diverse and facilities need to be accommodating
NF what you describe in your statement is that para 31 is that, you describe use by RH of F CR and response to

Cs...you ask q about CR and make practical suggestions. Just going throught that RH could use cubicles in CRs
JB yes

NF any staff member had access to cubicles
JB yes
NF staggering shifts, so staff could be supported if didn't want to be there with RH, with a view to minimise or avoid altogether?
JB - yes

NF so you had 3 suggestions
Cubicles in CR
JB yes
NF dividers?
JB yes because open plan
And all of those rejected?
JB yes they were saying impractical. We were exploring options, trying to put ideas in their heads.

NF and they said not possible
JB for the umm for RH to use cublicles, didn't want to have that conv. Staggering shifts they said would be diff because of way the service runs, and that dividers not available to be used and that you know they said not practical.

LW and ? said that RH had worked for trust for a long time wasn't right for RH to change
You describe as difficult meeting
JB two competed issues RH being discrim against and staff that didn't want to share with RH difficult because not an easy solution to the problem
NF 'I wanted to explore options'?

You were hitting brick wall?
JB that's not what I said
NF you were being told that RH has a right to use that facility and anything different not to be countenanced
JB not put that way

Looking at trying to balance needs of people who didn't want to share with RH
That was only thing accommodated?
Yes because RH had been using for a number of years with no issue

NF policy doesn't address person with different gender ID
JB no

NF page 92 'wish to start using facilities of required gender and how communicated to colleagues' it's not a q of consulting or asking others' feelings
JB yes

NF - advice you gave after meeting, p288 bundle 2.

NF - Sorry 275

You read recently
Yes
Miss W and Miss Watson 'had a think since we spoke...reflected from objective standpoint.. on one hand risk of upsetting RH whereas for other staff the risk is just of them feeling uncomfortable therefore on this basis, rec going back to people who complained, we respect RH to use facilites of gender

NF so you reflected on this meeting, and from what I can see you position was to recommend the position they took at that meeting.
JB that was in the email, we had talked at end of meeting that they would also go and look at options incl facilities for C

NF here you are saying tell Cs that although they feel uncomfortable we respect RH
JB yes after speaking to CIPD and national guidelines
NF the CIPD ack it was difficult
JB we talked about that.

NF the conclusion you came to after meeting, done the reading, was that the position was that risking upsetting Rose
JB discrim agaisnt RH
NF or asking if RH could change in cubicle would be

disrimc
JB yes
Whereas Cs there is no discrim

JB there is weighing up rights, taking proportionate approach in terms of looking at other options for those people, as they were talking about privicy element so that aspect could be explored
You sum that up 'keeping right side of law not satifying complaining staff

NF Sept 23, were you aware that the ECRC had given guidance in 2018 and 2022 re gender reassignment
JB yes, and other guidance. That wasn't statutory
NH the 2015?
JB yes lots of guidance, not a clear solution to the issue.

Competing guidance, that was the discussion I had
NH but you aware of 2018 guidance?
JB yes
NF go to that in bundle

NF this is EHRC statement July 2018
have you read before
JB yes I think so
NF did you see it in 2023
JB I don't recall sorry...I may have looked at it

NF this is all pre For Women Scotland
This says that UK law sex is binary - birth cert, trans person that does not have GRC retains sex on birth cert for legal purposes? Did you know what RH was?
JB no I did not know

NF - applying this, assuming it is to be correct, your discim analysis, you see a trans person with no certificate [missed]
JB they have bio sex, yes. This was one of national guidance out there.

NF just looking at this one in context of single sex, a bio male has to be seen as bio male as to whether have access to single sex CR
JB according to this.
[missed poor sound]
something about guidance

JB I felt overwhelmed by all national guidance all saying something different
NF para in your statement para 44. page 200 witness bundle

NF importance you see reference Feb 24 you say ' reread non stat guidance etc' I think all EHRC is all non stat
JB yes
NF This was about single sex service providers

NF - you read before at some point?
JB I don't know when had re read at that point
NF distinction between service provision and employment
JB yes

NF page 151 under series of egs including separate toilets - if used of staff toilets - 1992 legislation, single sex guidance H&S website.
Did you look at workplace regs on this website

JB I don't recall seeing that
NF when did you first hear about 92 reg
JB think it was about, honestly don't know, during this case at some point.I think when I did look at it it talks about I don't know exact wording, male female but before SC ruling on what that meant

J - taking a 10 minute break

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