Thread by @tribunaltweets

Good afternoon; this is the final day of public hearings in the case of Ms B Hutchinson & others vs Durham and Darlington NHS Foundation Trust at employment tribunal.

NF: Not quite what I meant. If single-sex communal Art8 *might* be engaged; but if it's mixed sex, a woman might encounter a man, that is a much greater effect on Art 8.

NF: Reg 24 - propriety - we say yes, is engaged because changing is to underwear. It might not if it was only re changing coats.
NF: Re Rose Art8 rights - RH always had choice to ask for a private changing space, and we heard from Ms Bailey that Trust had done that in a similar siguation in the past.

NF: RH was asserting right to be in the CR under the R policy, and the Cs say it was this that affected their Art8 rights.

NF: Moving on to SC points re C credibility. Will not address all, you have written from both of us. SC says C ignorance of resolution procedure goes to credibility (his para 110).

NF: This does not stretch credibility - the Cs were relying on management to guide the complainants and indeed the policy itself specifies involvement of management and HR.

NF: Their engagement with the media is criticised re this. See Ms Hutchison's evidence re this, and note also that not all the Cs *did* engage with media at all.

NF: Re SC para 156[?] - am troubled this cd be an argument re bad faith. This has not been argued and am troubled it should be introduced now. Some discussion in correspondence before the case [gives page ref]

NF: para 47 - not appealing the outcome of the resolution procedure. Seems to be suggesting that C's somehow accepted the report, by not appealing. But - they had no confidence in the process, and I suggest rightly so when you look at Ms Telford's conclusions.

NF: Note also, this hearing put back from June to allow for completion of the resolution process - obviously they did not want to delay things even further by appealing.

NF: We also had evidence from [missed] that had never seen RH behaving inappropriately in the CR. Firstly, 'inappropriate' not defined and secondly, [X] was RH countersigning manager.

NF: "Different shift patterns" is not a reason for disbelieving someone. It is no reason not to believe Ms Danson. Have addressed in written subs.

NF: Para 65 says KD said RH was undressed - that's not so, it's an error, half dressed. RH admitted to using the phrase, but, says it was in a different context. It is not conceivable that RH used the phrase and KD still be mistaken.

NF: It is not disputed that KD told about the incident contemporaneoulsy, and had to take sick leave afterwards.

NF: Re the visits to DSU. Dealt with in written. But background is - RH generally absent from DSU and then is suddenly frequently present, once had knowledge of complaint. This was not simply continuation of a routine.

NF: 8th July "fetching a form" account - para 75 SC cites Ms Peveller - important to note that Ms P did not think RH had come to harass *her* as she was anonymous then; but to harass others.

J: Is this in the realms of purpose? Not effect?
NF: That was her oral evidence.
J: Can you remind me?
NF [reads]
NF: It didn't stop her experiencing the effect on her working environment.
J: She said [reads] not harassment of me, but wonder if he'd done it to harass others, about being in the papers.

J: Clear she is saying "not harassment of me"
NF: Yes I wanted to be sure you had read the full evidence
J: My understanding is - Ms P anonymous, so RH cd not have had PURPOSE of harassing her, but, nor did it have the EFFECT of harassing her, she says it didn't.

NF: This is July 2024 and she knows RH has come "looking for a form" that doesn't exist and RH knows doesn't. Course of conduct, context.

NF: para 73 of SC sub - I think error relaying RH evidence - I say there's an inconsistency. RH says in WS went voluntarily to DSU, but in person evidence RH says was taken there. To look for a form where it could not be found - but where Cs could be found.

NF: Will now come to the harassment allegation re the response to Cs complaint. Aggregation of impact across the history of how Trust behaved when Cs raised concerns.

NF: My written sub para 65 et seq, summarised at 103-104.

NF: Re effect - what's important as this dealing unfolds is what was fed back to the Cs - what they knew at any time. Decisions are made about their complaints but not dealt with, and Cs cannot understand why and not explained.

NF: Have dealt in detail in written sub. It's clear at each stage I submit that Cs are essentially getting nowhere. And insofar as they get answers these are negative and ideologically slanted.

NF: From July 2023 Ms Hutchison and others are reporting concerns to Ms Quinn - emails then to Sept2023 show concerns among theatre and DSU staff.

NF: But message that comes back to the Cs was, as Ms H says, Trust has heard their concerns but will take no action bcs inclusivitity of Trust.

NF: Rest of 2023 / early 2024 - still no action. Feb 2024 letter sets out concerns again, very clearly; and we see HR staff saying "exaggeration" and no action taken.

NF: Ms Bailey's statement - she is told that compromise is not an option, the only thing that will be allowed is to make the Cs move out of the CR.

NF: So by March 2024, after the meeting with Ms Gregory in Feb and the letter in Feb, the Cs decide they must press the issue not drop it (tho being pressured to drop) and they are only getting negative messages.

NF: Ms Atkinson describes the March letter as 'concerning behaviours'. There was a mtg 15th April and we've have evidence of what Cs were told as a result - be inclusive, compromise.

NF: So by May mtg, Cs are demoralised, Their letter is descibed as a petition, the way they raised complaint is criticised, Ms Atkinson can only promise discussion, explanation. Cs have been there before.

NF: So finally they issue proceedings, and talk to the media. We know letter around 23rd May (Thacker to Scanlon) that there is no question of Cs getting what they want [gives page ref] - says asking RH to move is neither feasible nor reasonable.

NF: So the Trust launch a resolution process. Took 11 months. Found that the facts were as stated, the policy was there. Exactly what the Cs had had all along. Complaints ignored and go nowhere. The answer is already "no".

NF: Ms Williams did not even give the investigator the policy, until it was requested. So what was the purpose of this process? Its effect was demoralising - just like everything that had happened before.

J: Section 26 doesn't mention 'demoralised'. Says, must create the proscribed environment.
NF: Yes. Cs repeatedly told they are not inclusive. When action is finally taken, it's to put the Cs in separate and unsuitable accommodation. 1 cubicle between them, far from locker room.

J: [a ruling] says that those words in sec26 are carefully chosen. Which words do you claim here?
NF: Hostile. It is not necessary to have them all?
J: No indeed. But it's important not to gloss over the words of the statute.

NF: Of course judge. I say, it was hostile - also offensive and degrading, in terms of its effect. But also intimidating. Cs have been left in no doubt what the R thinks of their view. That they are not inclusive, they need educating.

NF: This ran on till the July. It turns out, not even compliant with fire regs. Hostility, intimidation, degradation, offence from the actions of the Trust.

J: Re the fireproofing issue. You say they may not have known till September 24.
NF: That was when Rs knew, but Cs were not told this until disclosure for these proceedings.
J: So re effect - is it a factor, if they didn't know?
NF: No of course.

NF: And then on top of that the 'inclusive' posters turned up on the door, just when they had been told they were going to be moved away. Posters obviously hostile, intimidating, offensive, degrading.

NF: Effect, in my submission, is made out on the evidence. As for purpose. We submit that that is also made out - detailed in written submission. Pattern is the same all through the process.

NF: Every time Cs raise concerned they are ignored and told not inclusive. And this was the purpose of the resolution process. Mr Thacker had already decided that the Cs would not get alternative accommodation organised for RH [gives several refs to bundle]

NF: Even before the resolution process began the outcome was determinted.
J: Whose purpose though here? Can a Trust have a 'purpose'
NF: Not for the Cs to determine individuals?
J: We have to look at the purpose of the individual, in the context of harassment.

J: We are going to have to decide this - hence me asking
NF: There can only have been individuals, and whoever they were, there was a purpose to the process. I was able to ask Ms Williams but she was 'the process witness'

J: Well there was Mr Thacker
NF: Yes and I did ask him re the predetermined outcome.
J: Suppose we *do* have to identify individuals, who do you say we should consider?

NF: Mr Thacker - email about outcome is clear, even tho Mr Scanlon's email to him says the opposite -that the female employees should not be the ones moved.

NF: And Ms Williams - she had the exact detail of the Cs email, she knew the policy wd not allow RH to be moved, but she kept the policy away from the investigation to prevent conclusion on that point.

J: If the policy had been shown at the start? I understand you to be saying, the policy was not able to be reconsidered. I'm asking, what if it *had* been on the table but had been confirmed? What is the relevance of the policy not being in remit, when it comes to purpose?

NF: It's the difference between the Trust decided they *would* grapple with the concerns the Cs raise, and what actually happened i.e. that they wouldn't.

J: So as I asked SC, about 'purpose'?
NF: [missed but 'yes']

NF: This is the context where the prohibited purpose is to be considered. Ms Williams put questions which are by structure and nature leading to and likely to have an intimidating effect, on Cs and witnesses.

J: Are we in danger of viewing this though a lawyer's lens, and not applicable to a workplace enquiry? This was an internal enquiry. Ppl who are not lawyers asking the questions.

NF: It is not just the questions - there is the correspondence. This was not a disciplinary process, or even a neutral investigation - resolution process shd have been about getting to the bottom of things.

NF: For example the Qs for witnesses - structured, all about 'how did this come up' 'when' 'who told you'
J: If I had a penny for every time I say *irrelevant* Qs in such a document I'd be rich. But you say 'purpose'

NF: Yes, to discourage the complainers. And we see email to RH part way though, saying how many have withdrawn. I do encourage you to review the responses of Ms Coutts here.

NF: The posters as well - we know from Ms Watson that it's not known who put them up - when she reported them to Ms Coppock, she was told to leave them up. This is again purpose
J: How can it be? If Cs didn't know?

NF: Purpose of Ms Coppock.
J: Leaving them up was purposed to create intimidating environment?
NF: Yes. And they had to go to director of nursing to get them taken down.

NF: And re the issue around solicitor representation. Cs were already aware, litigation already on foot, Cs very naturally mistrustful. Very much part of the picture, given the history. Cs mistrustful with good reason re Trust intention and processes.

J: How does refusal to allow solicitor related to sex?
NF: The whole process relates to sex.

J: "No we don't allow solicitors in internal enquiries" has the proccribed in and of itself?
NF: yes in this context. Not bcs the resolution procedure should have allowed solicitor but bcs litigation has already begun and covers the same matters.

J: Not sure that is right. Most internal processes do not allow solicitors, but specify colleague / union. Perfectly usual and understandable. And is what happened here. Yes context, but what makes this particular conduct related to sex?

NF: Not sure I can say more on this, beyond stressing context again. Policy yes forbade solicitors, but here litigation already mooted, it was another blow to Cs
J: It was not about representation but attendance? Letter says representation?

NF: I think I perhaps discussed that there's a difference between 'attendance' and 'representation' but yes the letter says representation. But point is, Cs wanted solicitor present, in context where trust lost.

NF: Re victimisation. Will respond to a couple of SC points in subs. para 134 - this was Nov 2024. If this is the critical date, if dates are to matter

NF: at 139-140. It's asked why no Qs about detriments and protected acts. Ms Atkinson 15th April - were about the complaint of March and we mean, Ms A's criticism of the letter. Link self-evident. Also the posters. RH gave evidence on that.

NF: I could not ask the person that put the posters up, as did not come to give evidence. But RH gave evidence that they went up bcs of the media.

J: What is protected act D?
[J and NF discussing items off a list but we don't have the list in front of us]

NF: I omitted one point re SC subs - para 120 - second PCP is denied because there was consultation - not with users and in any event evidence of Ms Bailey and Mr Moore was no help. Mr Moore 'inherited' the policy and Ms Bailey not involved. We did ask, but no evidence provided.

NF: That's my submissions
J: Let me check my list of questions.

J: SC subs para 7 - last sentence, "reserves position" - what do you propose?
NF: We will take stock [?]
J: You're asking us to take account of the statement prepared for the grievance resultion?
NF: Yes

J: You said you put your observations on Art 6 - what do you say to SC subs re case of Kilcarney? In a nutshell, SC says 'not engaged', because not the same situation - disciplinary vs grievance investigation?
NF: Am not suggesting it is - I think my skeleton is clear?
J: Just double-checking.

J: You do say Art8 engaged - will come back to that.

J: Para [missed] of NF submission. This is about shower cubicles. Want to check re the evidence. The shower room have lockable doors?
NF: Yes

J: I understand your point - the only way to get privacy in the CR was to misuse either the shower or the toilet cubicles and have an infection risk. Is that evidenced?
NF: We see talk of infection risk with the temporary CR

J: Is this something we have to take into account? We know some women did use the cubicles?
NF: My point was really re whether the nurses had to use the CR, change communally. There is no evidence it was ever *policy* for nurses to use the toilets or shower cubicles.

J: Your para 27, re the PCP. Are we to treat these as separate PCPs?
NF: I will take instruction quickly
J: It does say 'each'. Are we to look at each separately and the combination? I ask bcs we have to evaluate each PCP to decide whether it creates disadvantage.

J: So the disadvantage here is the fear and distress caused by changing with a biological male. So for example, looking at consulting with users versus consulting the union?

NF: My example was of someone already getting changed and in her underwear and a man walks in - distress even greater than if she had known in advance it might happen.

J: Lady Hale has discussed how a PCP might interact with another PCP. I am concerned that our analysis would be difficult if we have to look at each PCP entirely separately
NF: I tend to agree

J: Seems to me that PCP one is the important one?
NF: Yes really
J: And we are not sure whether PCP1 is applied?
NF: We thought this had been conceded? If we look at pleadings or claim?
[looking up refs]

NF: para 89 p112.
J: This is the grounds of resistance. R is saying that yes their policy is to allow self-id access to CRs, but denies this is available separately from 'gender reassignment'
[reads a couple of sentences]

J: What do the words "and / or regardless of sex" and "and / or regardless of gender reassignment" mean here?
NF: I don't think they are relevant to my argument here, that the PCP is conceded

J: Do you say they are superfluous somehow?
NF: Only that they are not relevant to me advancing the claim.

J: Workplace regs 1992 and regulation 24. Says facilities shall not be suitable unless they include separate facilities for or separate use by men and women where needed for propriety. We have had the discussion re 'men' and 'women'

J: So in what way do you say these have been infringed?
NF: There was not exclusive use for females. Or for males either, but we are dealing with the former situation here.
J: So you say 'separate' has to mean 'exclusive'?
NF: Certainly that can't be used by both sexes at the same time.

J: So Article 8. If we conclude it is engaged, and has been interfered with, are we invited to conclude that the interference was not required by law - because workplace regs?

NF: You don't need to go even that far, only as far as saying that the interference was not *prescribed* by law. That no question of 'gender identify' overrides the workplace regs.

J: SC says we don't need to go anywhere near the convention rights, do you agree?
NF: Well, no - we are in tribunal and have to be mindful to them. But, Art 2 is relevant to indirect discrimination, and 10 to at least the warning by Mr Thacker re media engagement.

NF: Para 60(c) of my opening skeleton addresses.

J: I think that is all my Qs.

J: Thank you Mr Fetto. Any points Mr Cheetham?

SC: Thank you. First thing - re the time point, failure to address [gives a page ref]. I know I'm going on about this but it is important. Refers to arguments put - if we look at those. P200 - August and November 23, then April 24, May 24. [too fast]

SC: Refers to no lockers and then lockers late August. So, it is not right to say there was an extension to November 18th simply because that was when pleaded.

SC: The PCPs are not amended, so insofar as they are relevant [mssed]

SC: Re Art8 - if engaged, it's said the way to achieve is by segrating by sex. But RH also has Art 8 rights and removing RH wd have interfered, so I say have to look at all Art 8 rights and am not sure it takes us any further. Does not add much. But Art 8 rights work both ways.

J: Art8 rights framed as, Cs have to undress in front of a biological male, so breach of privacy, and not justifiiable to interfere. But you say *removing* RH also a breach, why?

SC: bcs RH gender identity also has Art 8 and RH chooses to use the female CR, so moving RH out ..
J: You say 'peremptorily ordering' RH out - you say that infringes Art 8 for RH?
SC: Right to have GI respected.
SC: But I still say, does not take us forward.

SC: Last point - re what NF said and your discussion, we know the test is 'sufficient connection' and NF says everything RH did in the CR is 'connected to sex'. But suppose you have a TW - not RH but another - who makes a racist remark in a CR. 'Sex' is subordinate here. Just being in CR is not suffienct as 'related to sex'

SC: Those were the only points I wanted to make.
NF: Wd it help if I concede that [refs, we don't have] - just ask tribunal to look back to the pleading, which I think SC was also urging.

J: Thank you very much. We are going to reserve our decision.
SC: Have been asked that often by the press ...
J: Well it's now official. We do not have this Friday but we will deliberate tomorrow and Thursday here, and may have to book further dates. I do not think we will rule before Christmas.

J: We obviously understand that everyone is keen to have decision as soon as possible.
J: Thank you to all the legal representatives; you have been very helpful.

[END OF HEARING]