Thread by @tribunaltweets

We are at Leeds Employment Tribunal hoping to live tweet the 1st day of LS v NHS England. LS, also known by the pseudonym Faye Russell-Caldicott, has filed a legal claim against NHS England (NHSE), alleging ..

indirect discrimination on the grounds of sex, religion and disability (PTSD) as well as harassment related to her sex and philosophical belief (gender-critical).

The case challenges NHSE’s trans staff policy, which permits male employees who identify as women to access female-only toilets, changing rooms and shower facilities. Women uncomfortable with the arrangement are directed to use gender-neutral toilets, while trans-identifying males retain access to female facilities.

The claimant argues that NHSE failed to conduct an equality impact assessment before implementing the policy and did not consider the needs of women, trauma survivors or individuals whose religious beliefs require single-sex facilities.

NHSE originally maintained that its policy is non-discriminatory but has recently conceded liability to indirect discrim relating to sex and disability. NHSE agreed that the claimant is disabled with PTSD and anonymity and reporting restrictions on her real identity were granted in preliminary hearings.

We've just been informed by the clerk that we do have permission to live tweet but that there won't be any public session this morning, or potentially even this afternoon as case management will be taking place.
We will let you know as soon as we hear more.

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

We are a volunteer organisation and unpaid for our work. Subscriptions to our Substack support our work by funding some travel costs and our IT costs and are much appreciated.

The ET panel for the case are: EA Deeley, Q Shah and M Brewer.

Abbreviations:
LS, Faye or C - the anonymous Claimant, employee at NHS England
NHSE or R - NHS England, the Respondent
E - Elizabeth McGlone, solicitor for C
NC - Naomi Cunningham, Counsel for C

SC - Simon Cheetham, counsel for R
J - Judge
P - ET Panel member

GC - gender critical
TSP - trans staff policy
F - female
M - male
CR - changing room
EHRC - Equalities and Human Rights Commission
SC - Supreme Court
EIA - equality & impact assessment

PSED - public sector equality duty
PC - protected characteristic
EA - Equality Act 2010

LATEST: The open session of the hearing is due to start at 2.30pm today.

We will resume then.

J Discussing various technical problems in the court room with plugs and potentially microphones (it's hard to hear even inside the room although there's a lot of movement and setting up noises.

J Introducing herself as EJ Deeley and Mr Shah and Mr Brewer and her role as chair of the panel but is a 3 way decision of the whole panel. Re remote observers - we have responded with an audio link early afternoon but no-one is observing remotely currently.

J Explaining the contact rules for observers in the room. Reminder of rules re recording. Restricted reporting orders and anonymity orders in place. No IDing matter re the C must be produced publicly that may ID the C.

SC All of our witnesses are here.
NC None of mine are.
J To clear up re the 2nd harassment charge
NC Yes, continuing this with both purpose and effect re GC beliefs
J [discussing page nos in evidence bundles]

J Anything before we proceed
NC & SC - both say No

Claimant LS swears in on Koran
J [asks NC to introduce LS's witness statement]
NC I dont have any Qs
SC Before I start, will we be taking a break this pm?
J We weren't intending to but do ask for a break if u need one C

SC U were 1st employed in 2017 as X role
C Yes
SC 14th Apr 2024 u brought this case? [discussing relevant issues that may ID the C]
LS Yes
SC See yr amended grounds of complaint, in para 3 it says "essence of claim is that F only facilities can be used by males who assert

a M ID
LS Yes that's my claim
SC Y're claiming re yr GC beliefs, disability and religion
LS Yes
SC She says she has a detriment of not being able to use the F facilities. Does this accurately reflect yr case?
LS Yes
SC I will look at the chronology and narrative to clarify

SC Late Aug 2022 is when this begins up to a point in 2023is what we're dealing with. Your place of work was X and then you moved to Y.
LS Yes
SC Re yr work pattern, can you look at yr witness statement p5?

[Some confusion re page numbers]
SC In para 20, were new opportunities re working from home, hybrid working etc. And u reduced yr hours
LS Yes, the plan was to reduce to x hours. I had to think carefully about my childcare and flexible working patterns.

LS I opted for hybrid work pattern and flexible hrs w x number of hrs in the office
SC Therefore how many days a wk were u in the office
LS I struggled w the agreed pattern as the work days were 10 hrs. My prev line manager was going to allocate me again as there wasnt any work

LS in their team. The new team. I went to the office a couple of times but was mainly working from home. My child was sleeping poorly. It felt v hard to get to the office when getting little sleep as I cld sleep later if working from home

LS I got a new line manager and discussion of when to work in the office. It was my intention to get close to what was agreed
SC I dont have a clear idea of how often u were in the office in a month
J Shld u look at time periods?
LS Aug- Sept x1-2 times. Zero in Oct.

LS I was informed about the colleague transitioning then.
SC How did that effect you coming in later in hte yr
LS I was v reluctant as I knew there was a chance I might encounter this colleague I knew to be male in the F toilets. I didnt want to jump. I didnt want to offend him

LS I knew who he was. I didnt know how to raise this issue.
SC Just looking at the nos, u didnt come in Nov & Dec
LS I think I did in Nov as I met XY. I wanted to meet with this person.
SC SO once in this time
LS Yes
SC In 2023, did u come into the office in the early Year?

LS Yes, once early on, I think Jan
SC Was this the pattern?
LS There wasnt a pattern. I was trying to avoid coming into the office cos of the ? events. This is referred to in my emails.
SC Did u come in again?
LS I think so but I cant remember the dates

SC So one more time?
LS I think I came into the office in May. I'm relying on correspondence to get that date as I cant remember. And then in July to meet the IX Officer about my grievance. Then to a leaving do. Then I cant remember but I may have come in after that
SC Y've given us about 6 occas u can recall

SC U came to X workplace?
LS Yes
SC The grounds of your complaint are on pages..., [reads re layout of building X and tenancy] Look at the witness statement of Mr Goodfellow. In general context he talks about subleases and the terms of occupation.

SC He says we dont have a licence to change common areas of the building but have to liase w HMRC to see if anything can be done. Is he incorrect?
LS I have never asked for substant changes to the layout but for engagement w relevant staff. I've never asked for big changes

LS It may be the tenant cant change the building much but I've never asked for that
SC I was going to take u to the occupancy but I'll leave for now. From X date, NHSE was occupying the following floors of X building.

LS Yes that sounds right. I was still on floor A, but at one point was on floor B.
SC The config was pretty much the same for all floors
LS Yes, for toilets but not for desks
SC We can remind ourselves of the facilities. Looking at the Ix Report of your grievance (Gx)

SC The report writer talks about a fiscal review [reads re layout of toilets and disabled were labelled gender neutral]
LS The description isnt correct. I challenged this at the time.
SC Look at [reads re SS facilities w communal area w M and F sign on hte doors

LS Yes
SC ANd the disabled labelled gender neutral
LS Yes
SC Describing contents of various toilets. Do they reflect the facilities on yr floor?
LS Yes, gen speaking
SC A gp of SS toilets w own sink were on the corridor and were single occupancy

LS No. I dont even recognise this and it doesnt reflect what I know. No single enclosed M toilet w same for F and another called Unisex. I have no idea where these are despite working in the building for x years. I wld need to be on different floor in a diff part of the building

LS to find these. I dont know where they are
SC [reads from WS]
LS no, this is the wrong office
SC Sorry, my mistake. In para 10 u say was a single occ toilet but none that open onto a corridor
LS They might exist but I have no knowledge of them. On the other side of building

SC We may have to return to toilets but let's move on from there. Go to p81 of large bundle. I'll show u where my confusion has come from. Shows M toilets, F toilets and the unisex single use facility that opened onto a corridor
LS I didnt feel ? were usable for me any more

LS There has always been disabled/ GN toilets at far R of the building. I didnt recog in this drawing what appears to be a single use toilet called F/ same for M. I do recognise the cubicle in p769. The F only cubicle became unusable for me after Dr Montgomery changed at work

SC U werent req to change for work
LS No
SC So this relates to yr hobby as a runner
LS Yes, but why make this policy
SC You say, you came to the office about 6 times in the above period. How many times running
LS Zero cos of DM. running has been a hobby since age of 16

LS It wld fit in well to run to and from work and allow me to exercise. It was my envisaged plan of how I'd work but then I ended up doing this zero times
SC There were some CR attached to the leisure centre
LS No. I have checked and challenged this
SC Was he making this up

LS I have been told by staff that I cant use the leisure centre CR. The centre has prevented me from using them. I checked before taking my employer to court
SC Is this a suitable time for a break?
J Take 10 mins but take more if you need to C

We return
J I do appreciate u have health concerns but manay witnesses fine this difficult. It's been a long time waiting.
SC Can u go to Mr Goodfellow's witness statement? I want to correct what I said earlier. I took instruction in the break and talked to Mr G. You are correct

SC It's not an access swipe card, and I was wrong to suggest u can enter. The leisure centre showers werent avail to you but there were sep showers, the communal ones, at the main rear area of the building
LS Yes, at rear entrance
SC NHSE aren't responsible for them but another

dept. Is he correct?
LS I have no knowledge about who was responsible for certain areas. I knew colleagues who used the facilities after sports/cycling. We didnt think about who had responsibility
SC U didnt use them in this period?
LS No

SC Turn to p454. Your email to Mr Ross on Feb 2nd. Headed "re toilet provision". John Ross was Head of Corporate Estates.
LS Yes
SC Do you recollect the email? Shall we all take a few minutes to read through it [reading]
SC I picked on this email as it puts 4wd a chronology

SC for us. It started w Trans and NB training. You asked about SS spaces in Nov and Jan. We have a sequence about yr concerns. Raising them and then repeating them
LS Yes
SC On p468
LS Can I say something about the bundle. It started in Oct as I'd already raised w my line mger

SC I dont have Q on that but NC may. An email from Eliz Gunz not to you re facilities for NB ppl and the organisational response. Yr employer is responding to yr concerns.
LS There is a response a couple of yrs later. It felt like they were avoiding answering Qs and procrastinating effectively

LS Normally takes 3-4 days to get a response but nothing in 8-9 weeks here
SC Azling Amera responds...a description of the various facilities at site A. So yr complaints werent being ignored?
LS I think, cos on Feb 15th, on p465, at 01.25 Eric emails Azling.

LS It took him a month to forward on my Qs. That prompted something but I didnt really get anything back. It took him a month to explore this further. It's not fast. I cldnt come to the office so important to me
SC But u werent coming in before Oct
LS That was to do w my LM not

being at site A. I wld be Billy no mates. I had a new team and didnt know anyone. I felt like it was temporary, and we had convos about mtg face to face. I still came in once or twice. Then I changed teams. I also went on the away day in Oct.
SC Not at the office
LS No

LS Can u repeat the Q
SC I think you answered it. I cant remember it
J [repeats the Q]
LS I had no reason not to come when I was well. That time period of a few weeks before Ursula Montgomeries email was quite exceptional. That explains my absense mostly. It wasnt my intended

LS way of working.
SC Go to p182. AN email from you to Mr Gunz. Title "consultation of SS spaces" You mention that any applic to ACAS isnt time limited. So u were thinking of ET proceedings

LS Yes, from the trans awareness session as I was so upset and I was looking into the legality of the policy pretty much immed
SC Oct 10th
LS I dint know how to handle things but knew I wanted to advocate for change. I recog it was potentially diff to progress things internally

LS So I looked into other options, incl ACAS mediation. That's why I put it there.
SC U have answered my Q, thank you. In yr WS on p16, there's a section headed Feb 23 nd redundancy threat. There was no redundancy process
LS I felt there was...
SC But was there one?
LS No

SC That'll be a good place to break
J Have you anything you want to raise NC or SC?
[both reply no]
J We'll aim to start promptly at 10am tomorrow then

Court adjourns

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