Thread by @tribunaltweets

Today we are reporting day 4 of LS v NHS England (NHSE). LS, also using the pseudonym Faye Russell-Caldicott, is claiming indirect discrimination on the grounds of sex, religion and disability (PTSD) and harassment related to her sex and philosophical belief (gender-critical).

Our substack page on the case is

It includes our reporting from the earlier days of the hearing.tribunaltweets.substack.com/p/faye-russell…

We are a collective of citizen journalists and work on a voluntary basis. We endeavour to report everything that we hear but do not provide a verbatim report of proceedings.

You can support us by subscribing to our Substack (link in bio) which funds some travel and our IT costs.

The substack page also includes a full list of the abbreviations we use, including

J: Employment Judge Deeley
P: either of the two lay members sitting with the Judge.

LS, or C: the anonymous Claimant
NC - Naomi Cunningham, Counsel for C

NHSE or R - NHS England, the Respondent
SC - Simon Cheetham KC, counsel for R

We expect the hearing to begin at 10.00am. Respondent witness Philip Goodfellow (PG) will be on the stand to conclude his witness evidence.

[The hearing is beginning]

[We do not have sound at present, but the Judge is speaking]

J: [is checking up on an email court should have received that may have gone missing. NC will re-send it]

J: NC yesterday you raised concerns about process. I went to look at the doc you wanted to ask about. Also Mr McCurry's WS. We can see that he discusses this there inc FWS ruling, so colleagues and I think it would be better to put Qs re case law to him.

J: We appreciate he was not around in 2023 but still a better witness to ask.
NC: Did you receive my written submissions?
J: No, when sent?
NC: 6.55 am.
J: Ah has just come in now.

NC: In light of what you say I would say that we should move on, though I want to note that it is normally up to Counsel to decide what Qs to put to which witness. So I have just one more Q for PG.

[J Offers to read subs and re-think - NC says no, let's not take up that time. PG returns to witness table]

NC: One final Q. p830 of bundle. Stage 1 grievance outcome. Later on here we see recommendations, 1 being policy development and review. Could you read that section?
[PG reading]

NC: In Jan 2024 grievance outcome recommended that the policy group should check reviewing timetable, and do full consultation on various areas. This review has still not happened now, March 2026, has it?

PG: I think we did an EQIA process ...
NC: It was begun in 2022 but stalled. And no further action on it. Do you know why?
PG: No

J: I have a few Qs. You are Leeds based?
PG: Yes [gives list of locations]
J: I should say here that I realised I have been the Quarry House Gym 2 or 3 times - not as a member, am not employee of NHSE or DWP - to play a few matches against a team based there.

J: The dry-side changing rooms, when you come in from the ring road entrance. Can you describe?
PG: Yes [mentions needing a swipe card, describes how you get to swimming pool and changing rooms, a security desk and a controlled door to office part of building]

J [checks about how to get from that area to main office building, PG confirms through secured doors at that point]

J: So how do you get to the dry side changing rooms
PG: corridor to the R of the security desk, they are down there

J: Who has access to those changing rooms - and is it different working hours vs non-working
PG: Any members of staff
J: Just NSHE
PG: No, all the organisations based at QH including DWP and various other orgs

PG: Members of the public could also access, once they had got into the foyer, because no separate access control after that, but I think mainly it was assumed they wouldn't, only the pool and poolside area and rooms.

J: And this is during working hours *and* non-working? Any difference?
PG: Public could access at both times eg schools, swimming clubs, not certain of exact opening hours but I know there were evening clubs etc, and, staff cd use outside working hours.

J: So during 8-6, the C's working hours, the rooms could be accessed by NHSE staff, other org staff, and members of the public?
PG: Yes
J: Do we have plans of the area?
SC: I don't think a good one - and NHSE not in the building any more so not sure if we can?

[J and SC discuss whether and how PG might be able to get a plan, but noting they did try before the case and didn't get very good ones]

J: And Wellington Place - any access by members of the public?
PG: Not for gym facilities no - members of the public might attend functions held by orgs, but no access to sport facilities.

J: So, difference QH and WP - public more or less free to roam at the former not the latter?
PG: Yes
J: Will just check if we have any more Qs

J: Am trying to find paragraph of evidence about the toilets the C was not aware of - was it your WS Mr G or was it VH?
SC: [gives the ref]

J: You were here for C evidence and she was not aware of the toilets you mention at 44. Where were they?
PG: 5th floor, west side of the building, it's sort of H shaped. These are at both ends of the W corridor.

J: The C worked on the 4th floor?
SC: Yes
J: So were these facilities duplicated on 4th floor?
PG: No - there were some in the same places, corridor ends, but communal-multiple type (and an acessible)

J: How long to walk from 4th up to the 5th floor ones?
PG: You'd have to walk to the central stairwell, up the two flights, and then along and across to the end of the corridor, it would take me c 1 minute per segment of that

J: And on the east side the layout is different?
PG: No, only the ends of the west side corridors, on both floors

J: Thank you, I just wanted us all to be entirely clear on the layouts.

J: Any re-examination?
SC: I hope this doesn't confuse anything, but, going to look at the floor plan - p1059. What is this?
PG: Plan of 4th floor?
SC: To scale?
PG: It doesn't say so that I can see.

SC: Looking at the plan, is there anything that will assist us more about what you were just discussing with the J?
PG: [looking at plan]
PG: I don't think I have anything more to add - this plan is mainly re desks, where teams are allocated.

SC: Just in case J you find this plan helpful, draw it to your attention. There's another one here [ref]. Not sure how the two fit together - PG can you assist?

PG: Two different functions - one to scale and clear about doors, access etc - the other is about which work team is allocated where and concentrates on that.

SC: I hope that hasn't confused anything, will leave it there.
J: In case anyone is not familiar - Quarry House is a very well known local building.

J [releases PG as witness]
J: Anything to address before next witness?
[No]
J: Mr McMurray come to the table.

SC [Takes Peter McCurry through ID, WS. Joined NHSE in 2024]

NC: Para 2 of your WS, you say you are policy owning director inc of the trans policy. Is it fair to say you are the right person to ask about it?
PM: Yes.

NC: And if justification for policy had changed between 2017 and now, you would have said so?
PM: Yes
NC: And you didn't, so it hasn't?
PM: Yes

NC: [reads aims of inclusion, diversity etc] Is it fair of me to say those are such high level nicenesses that they are not useful?
PM I don't agree

NC: You don't address how letting men use women's facilities goes towards those aims?
PM: Not specifically no.
NC: Would you like to do so now?

NC: Giving you opportunity to say to tribunal why the nice aims require that action, men in women's changing rooms.
PM: We wanted to give employees a choice, recognise that for some people - that we signalled - diversity - value

NC: That that choice signalled their value?
PM: Yes

NC: Your WS also doesn't say why those benevolent aims mean facilities should be accessed per gender identity instead of sex.
PM: No

NC: Your WS says in context of EQIA that if any impact on others comes up, balancing needed. Does that also mean that if nothing came up, there would be no balancing?
PM: Yes I'd agree

NC: And no evidence at all that in 2017 anything at all came up about the needs of female staff or any subgroup of women?
PM: No.

NC: And you only do a balancing exercise if you think there is evidence of impact?
PM: I think - we try to balance, to remove barriers that some groups are facing.

NC: In the absence of you having identified any impacts on women or a subgroup, it doesn't really help to tell tribunal what you *would* have done, because you didn't do them, becasue you didn't identify? Is that fair?

PM: I think - I'm talking about what we would do if we needed to, but you're right that we didn't then, but going back to the removing barriers - I would hope we would also weigh up then.

NC: But there's no evidence at all you did so?
PM: Was not there then
NC: You=NHSE. No evidence?
PM: No.

NC: And no evidence that a retrospective exercise of consideration has been done since 2017?
PM: No

NC: No evidence of consideration of women with PTSD or religious sensibilities. And no consideration of freedom of speech either, re forced pronoun use?
PM: No

NC: Or of neurodivergent staff who might find speech control particularly burdensome?
PM: No

NC: Is it not the case that you (NHSE) should have seen a mile off that a policy that men could use women's facilities, especially when communal showers, would have an impact on women?

PM: We were looking at it as, removing barriers for a group that faced them.

NC: And it was not until 4th March, just before these proceedings, that NHSE conceded that women were disadvantaged (by conceding some claims)

PM: I think when drawn up, it was trying to do best practice, I think we assumed ppl wd "live in gender" for 12 months ...

NC: Not quite my Q. Asking why the disadvantage for women was not identified between 2017 and 4th March
PM: I can't give you an answer to that.

NC: I suggest that it was because of NHSE profound commitment throughout to gender ideology - TWAW, TMAM, all the mantras - that NHSE is so devoted to benefitting its T staff that nothing at all can be seen?

PM: Disagree, I have only ever seen attempts to remove barriers where people face them, if ppl raise issues we have attempted to address in considered and caring way for those individuals.

NC: So you don't agree with my explanation, but you don't have an alternative one to offer?
PM: I don't, no

PM: Your WS talks of NHSE thinking its policy was based on understanding of the law at the time. [gives bundle ref to a 2022 doc]

NC: We can if we need to look at correspondence from Erk Gunce - do you need me to show you?
PM: No am happy to accept.

NC: So here we see emails saying trans policy being reviewed, saying that EQIA has been requested by EG and asking about consultation groups inc women. We've seen that there was no women's group at the time?
PM: That's right.

NC: Your WS says that review was halted bcs EQIA not adequate and would be reviewed differently later. You learned this from EG?
PM: No, never met him
NC: So who gave you the information?

PM: [I think, via members of his team]

NC: If an EQIA is inadequate, would one route not be to do an adequate one? Why was that not chosen?

PM: I think there was a lot of work going on over the organisational mergers, which would have included putting 3 policies together, and I assume that it wsa to be bundled up in that.

NC: And do you know why there has still be no progress at all on the recommendations of the grievance outcome doc?

PM: Yes, the plan for the merger was that HR would be merged last if you see what I mean - so that didn't start until 2025, and so that was when we could start, and we are still working through merging all policies inc this one

PM: And then it was announced that NHSE was going to dissolve and merge into DHSC.
PM: And. This particular policy is a particularly difficult one.

J [asks about timings of NHSE dissolution, PG replies]

NC: So you can't really explain why a review that started in 2022 ground to a halt in Nov 2022.

NC: Isn't it the case that this was going to be dealt with the same as 2017 - just ignore any problems. And then along comes a pesky woman, the C, showing that there *are* problems, and it gets dropped.
PM: Don't agree.

NC: But no other explanation to give?
PM: Burden of work.
NC: But your WS says that the review stopped because the EQIA was insufficient. Not that it was burden of work.

NC: I am saying that NHSE simply refused to countenance considering any impact on women.
PM: Don't agree. I was not present, but I believe there *was* intention to do better EQIA, but other work got in the way.

NC: This is what you are saying now, burden of work, but in your WS you say it was bcs EQIA was not sufficient.
PM: I believe ppl did want a sufficient EQIA

NC: If NHSE does ever review this policy, what experts will you consult?
PM: Staff network groups, broad range of stakeholders.

NC: Which of your staff networks will you consider experts on impacts on women?
PM: Well, women's network, after hearing this week

NC: Would you consult SEENinHealth?
PM: Not heard of.
NC [bundle ref]

NC: Gender critical staff network for the NHS
PM: Have not read through newsletter, but will take your word on it.
NC: Would you consult them?
PM: Yes I think we should.

NC: And do you agree - your colleagues have talked about consulting Stonewall, do you agree that the obvious external group to consult on the impact on women would be Sex matters?

SC: Conflict of interest!
NC: No. I have no current involvement with SM.
SC: Should still mention.

NC: PM have you heard of Sex Matters, I used to be involved. Regulated charity. A proper group to consult?
PM: I haven't heard of till this week, but we would probably ask staff networks for recommendations of groups to consult.

J: Is this a good time to take a break?
NC: Yes - could I ask for a slightly longer than usual break, so that tribunal can read my written submission from this morning during it?
J: Yes of course.

J: Apologies for some documents taking time to be processed - we have a lot of staff on leave - but I do apologise.
NC: No probs.
J: Break till 11.45 then.

[BREAK]

@threadreaderapp please unroll