Judgment has been handed down in Hutchison v County Durham and Darlington NHS Foundation Trust, which has been widely referred to as the “Darlington Nurses” claim.
The claim was brought by 8 female nurses in the Day Surgery Unit at Darlington Memorial Hospital and concerned the presence in the women’s changing room of a trans woman colleague who worked in Theatres. Although they worked different shifts, from time to time one or more of the claimants would be in the changing room at the same time as their trans colleague.
The ET found that requiring the claimants to share a changing room with a trans woman who was a biological male amounted to harassment related to sex and/or gender reassignment. Although this was permitted under the Trust’s Transitioning in the Workplace Policy, which the ET held served “an admirable and noble purpose”, it was nevertheless unlawful as it was in breach of the Workplace (Health, Safety and Welfare) Regulations 1992. The policy amounted to “conduct” and it had the effect of violating the claimants’ dignity.
While upholding that complaint of harassment against the Trust, the ET dismissed all of the allegations against Rose Henderson, who was the trans colleague. These related not only to the many complaints about Rose Henderson’s conduct in the changing room and elsewhere, but also to the complaint relating to her presence in the changing room.
Other allegations of harassment against the Trust were also dismissed, although the Trust’s failure to address the claimants’ initial concerns was also deemed to amount to harassment. The claimants also succeeded with their indirect sex discrimination claim, but their victimisation claim was dismissed.
In the indirect sex discrimination claim, the Trust relied upon balancing the competing rights of its employees as one of its legitimate aims, but the ET held that there were no competing rights and, in particular, Rose Henderson’s Article 8 rights were not engaged. This and the Trust’s other legitimate aims foundered on the 1992 Regulations.
Simon Cheetham KC was instructed by Alistair Kernohan and Claire Gilbert of Capsticks and acted for the Trust.
You can read full judgment here.
