Thread by @tribunaltweets

Evidence is completed in B Hutchison and others vs County Durham and Darlington NHS Foundation Trust. We will be live tweeting submissions starting today, Tuesday 11 November, from 10 am.
Link to our coverage here.
https://
open.substack.com/pub/tribunaltw

Abbreviations:
C/Ns - Claimants - the Darlington nurses
NF - Niazi Fetto KC, barrister for Claimants
MP - Michael Phillips, solicitor for claimants
PS - Pavel Stroilov, C’s solicitor, preliminary hearing
R/T/Trust - Respondent, County Durham and Darlington NHS Foundation Trust
SC - Simon Cheetham, KC, barrister for respondents
J/REJ - Regional Employment Judge Robertson

EJ - Employment Judge
ET - Employment Tribunal
RH - Rose Henderson, trans identifying nurse
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:
CG - Claire Gregory, Ward Manager
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
DP - David Purdue, Joint Regional Chief Nurse for North East and Yorkshire
GH - Gill Hunt, Interim Joint Regional Chief Nurse for NHS England in North East and Yorkshire
ST - Stephen Twist, Darlington Trust’s Audit and Governance Committee, an elected Public Governor
RS - Professor Richard Scothon, Chairman of Trust
AM - Andrew Moore, Head of Workforce Experience at Trust
JR - Jody Robinson
SW - Sue Williams, Human Resources Business Partner

More Abbreviations:
TG - Transgender
TW - Transwoman
CR/CF - Changing room or changing facilities
SSS - Single Sex Spaces
WS - Witness Statement
WA - Whatsapp
CLC - Christian Legal Centre
SEAL - Surgical Elective Admission Lounge
DSU - Day Surgery Unit
EQA/EA -Equality Act 2010

Waiting for session to start

Submissions start
J 1130 pages!
SC starts. As indicated, oral first then questions.
I want to begin p 2 period covered by claim. I find it surprising it is said ‘the tribunal should take evidence pre and post. The claimants added. May 2025 agreed. Amend to add - not absurd to amend.

Any references to alleged after May 2021 . Therefore SC FWS is not relevant. It does mean substantive parts of the claimants submission are not relevant.

2nd main point. The PCPs themselves and our response on what is said about individual disadvantage. P 21.

Women are more likely to experience sex based harassment esp being compelled to undress.
J the disadvantage is the last part B 1 , 27. Reflected in the issues.
NF page 208
J is it the last part - fear distress and humiliation?
Yes.

SC draw your attention also to individual disadvantage which corresponds to group disadvantage (fear distress etc)

Para 22. The apprehension is around rights and ‘Rose appearance remarkably masculine, visibly sexually functional.
But difficult to square para 22 when keen not to paint Rose as a predatory male capable of overpowering them not reflected in the evidence

To complete the circle , back to 8 a which is experience of sex based harassment. Do not have the individual claimants lining up and saying ‘fearful because Rose might overpower me’

The group were not compelled to undress - because the presence of Rose put them off.

Staying within direct discrimination. Para 29 about competing rights.
Not the right word. A ‘balance’must be achieved. Sex and gender reassignment. Again C refer to SC FWS.

But the tribunal is looking at May 2024 …list of guidance from a range of bodies at that date.

Again, a reference to For Women Scotland. ‘It is not the role of the court to argue the meaning of words, it has a more limited role in deciding policy ‘
J in SC they trawled through legislation but not the workplace regulations

SC the Trust didn’t need to frame the way it did and in any event the tribunal is looking at the application of the policy at that time and accusations of harassment

not sure if C are framing the policy as unlawful?
Not clear
J SC looking at in relation to equality act.
SC some commentators have different views
J do 1992 regs how do they fit with men/women in EA.

SC let’s move onto harassment accusations.
P 67. By contrast complaint individually may become such ie a series of events which individually not harassment but collectively mount up

In this case, individual incidents cumulatively
J is that not just semantics?
SC tbd. Person A Engages with B and is defined by C as harassment of C.
J an individual cannot rely on experiences of another individual?

SC we have something different here. The point is each claimant must establish facts in respect of themselves. Not irrelevant but does it establish harassment of individual?

What they said cannot establish harassment of an individual claimant. Our duty to test

Credibility section. The Trust is not saying the C are lying. Ms Hutchinson relied somewhat on what others told her. It’s not implying anyone is lying it might be they’re wrong.

The reality is Rose was using the CR. From time to time claimants would see her and her presence was provocative. Anything Rose said or did was viewed through their prism.

At some stage their underwear was displayed . We’re saying you’re wrong - not walking around , simply getting changed.

Not harassment. Just changing.

Claim of harassment by Trust. Ally Quinn August 2023 complaint Ms Bailey (not a claimant) other attempts made by Trust to shift blame. Where is the allegation explained? How ? Which claimants affected? No attempt to explain why allegations amounted to harassment

A narrative forming. Allegation of harassment because of failure to address concerns. But not explained.

Later, a couple of allegations relating to letter. Felt intimidated but no attempt to explain how this amounts to harassment of the claimants.

4b to 4h. Where is the all important requirement to share the CR with RH. Didn’t amount to harassment. Don’t know why they haven’t
(Interruption of tannoy announcement)
The written submissions don’t address the issues, all we have is a narrative

Para 100 a particular allegation. No one knows who - they were ratified by trust management - we don’t know. No one knows who saw the harassment

Trust conduct as a whole cumulative approach ; case is put as individual claimants . None of these amounts and falls short of standards of harassment.

In terms of victimisation. Claims of going to media, Mail and Sun articles. But the causal link to that detriment is the letter following. Clear from the letter , going to the press and telling stories about colleagues.

It has felt at times 2 hearings going on. Trust we stuck to evidence. A demonisation of Rose. Claimants are fighting a public campaign about policies and NHS trust treatment of women

But the reality of the case is around allegations and specific task looking at the issues .

(Court observes national 2 minute silence)

J I want to check a few things. Para 20 you say procedural but not amount to conduct. Also p84 . I wanted to understand
SC section 26 amounts to conduct
J allegation relating to Trust. Does that amount to conduct?

J at what point does it affect?
SC when implemented.
J so when someone acts in accordance with policy
SC yes
J so an employer has a policy approved and eg doesn’t employ black people

Even if the policy is not enacted on, it just sits on the shelf ..?
SC I accept it creates an offensive environment. If we come back to our case it draws attention when they hear about (missed) Rose

J para 24 conduct ref single sex CR?
SC yes
J was the policy in accordance with official guidance?
SC we accept there was a lot of guidance EHRC, NHS etc. not a single source

Not all consistent with each other.
J in terms of ‘related to’ must be relevant to a protected characteristic?
SC could be even the person alleged of carrying out harassment

J a claimant must establish the conduct was unwanted. Relating to a PC?
SC I suggest they do. Low hurdles.
J does a claimant have to establish a prima facie case of intent?
SC agree a shifting burden of proof. If a purpose then that has to be clear in their case.

J shifting burden seems to me to relate to purpose. That leaves the burden on the Respondent. As far as section 26 it seems that’s the area

J para 14. Nothing in NF’s argument?
SC I say it’s not engaged
J do you say not engaged
SC no

J article 8 , 49/3. Do you say Rose’s article 8 rights were engaged?
SC yes a factor
J to what extent do we need to get into article 8?
SC just a footnote
J Mr Fetto?
NF yes article 6

J where does it fit?
SC Rose simply being there. Article 8 private and family life ; gender identity.
J one’s always conscious where fits in but where does right to private life fit in? This is a communal area where people are getting changed

J before Rose, any article 8 rights needed.
SC all biological female it’s doesn’t arise
J why not?
SC an article 8 for both

J by Rose exercising art 8 rights and asked to change elsewhere an infringement?
SC potentially

J let’s look at workplace regulations. 1992 Facilities for changing. Employers setting up suitable and sufficient facilities.

For reasons of health and propriety separate use by men and women. We know there are separate facilities. Para 83. You say there was an inconsistency in statutory guidance. Where is the inconsistency between policy and regulations?

SC what the trust says now the EA says men and women ; despite that wording at the time, the trust was interpreting it

J in 1992 there was no recognition of trans gender status.
SC inconsistency referee to by claimants
J but use is separate use

SC 1992 no recognition of gender reassignment true but then your task is what was the Trust at time doing (post EA 2010)

J Professor Phoenix evidence what you say?
SC we say ‘not independent’ and also with respect it doesn’t take us further
J why not?

SC she was giving evidence about disadvantage / distress broad social pattern women more so if undressing
J compulsion?
SC the source of P evidence was criminological studies. So doesn’t take us much further

J no one was compelled ?
SC they didn’t get undressed, because of Rose’s presence

J Prof P ‘compelled’ in preliminary hearing ..?
NF para 4.
J she says ‘I’m interpreting compelled as a changing room shared with a member of the opposite sex.’

SC we should interpret as she means. No requirement to.

J comfort break 5 mins

@threadreaderapp unroll