Win for Open Justice as Judge Rules Against Anonymity for ‘Rose’ in landmark Darlington Nurses’ Case
27 February 2025 Issued by: Christian ConcernIn a win for Open Justice in the high-profile case of the Darlington nurses, an employment tribunal has refused an application made by an NHS Trust to impose reporting restrictions on the identity of ‘Rose.’
Supported by the Christian Legal Centre, the nurses have taken legal action against County Durham and Darlington NHS Foundation Trust on the grounds of sexual harassment and discrimination, after they were forced to undress in front of a male colleague who ‘identifies’ as a woman.
Backed by an NHS policy, Rose began using the female staff changing at Darlington Memorial Hospital, without consultation or warning.
One nurse who has experienced sexual abuse as a child has spoken about having panic attacks after being repeatedly asked by Rose in the changing room: ‘Are you getting changed yet?’
Rose has openly declared that he is trying to get his girlfriend pregnant, is engaged, and does not have a Gender Recognition Certificate (GRC).
After 26 nurses raised concerns with HR, they were told they needed to ‘be more inclusive’, ‘compromise’, ‘broaden their mindset’ and get ‘re-educated.’
A full employment tribunal hearing is expected to begin on 16 June at Newcastle Employment Tribunal.
At a preliminary hearing held on 20 January, lawyers representing the Trust made a last-ditch application to place restrictions on the media reporting on Rose’s identity at the June hearing.
Made under Rule 49 Employment Tribunal Procedure Rules, the Trust sought to have Rose’s full name and image anonymised from proceedings.
Rose claimed that he needed anonymity because he is afraid of further media attention which he says puts him ‘at risk’ of being targeted with ‘horrible online comments’.
The nurses, represented in court by barrister Bruno Quintavalle, challenged the order and filed witness statements to rebut Rose’s attempts to present himself as a ‘victim’. They said that since the story broke in the media, it is in fact Rose who has escalated intimidation of the nurses at the hospital.
Bethany Hutchison said that since the nurses raised concerns about the Trust’s changing room policy, Rose’s ‘behaviour changed’ and ‘we started to feel quite intimidated.’
Rose had also claimed that he is ‘a private person’, but the nurses in response submitted evidence that revealed him campaigning for Stonewall on Facebook, being a member of a ‘Transgender shitposting’ group, and images of him appearing as a male and getting engaged to his girlfriend.
‘Unsupported by anything concrete at all’
Refusing the Trust’s application this week, Employment Judge Langridge concluded that: “no specific instances of the “horrible comments” are set out in the witness statement, and no particular events are identified in support of the feeling of being at risk. The statements are unsupported by anything concrete at all.”
She added that: “These generalised statements do not disclose any evidence that any real risk of harm would arise or escalate in a meaningful way if the order were refused. [Rose’s] first name and place of work have already been published in the media, dating back to May 2024, and there is no evidence that the risk of harm will increase if [his] full name were published. I accept the claimants’ submission that the evidence must demonstrate a real risk of harm and not be based merely on a witness’s fear…. However, such evidence is not apparent from the content of the statement produced by [Rose]. [His] dread and anxiety about what might happen in the future may be understandable, but [his] evidence falls short of the requirement for a “clear and cogent” basis on which it might be considered necessary to derogate from the principle of open justice.”
“An important additional factor”, Judge Langridge concluded, “is that [Rose] states an intention in [his] witness statement to give evidence at the final hearing in order to defend the allegations against [him]. There is no suggestion that [Rose] feels inhibited about doing this, and indeed no such submission was made.”
Judge Langridge cited a passage from the Supreme Court in Khuja, Lord Woolf MR in R v Legal Aid Board ex parte Kaim, which explained the importance and justification for the open justice principle which necessitates the “full glare” of a public hearing:
“This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. … Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it.”
In summary, Judge Langridge said: “The principle of open justice is a fundamental one, derogations from which can only be justified in exceptional circumstances. This is the appropriate starting point. There must be evidence to persuade a Tribunal that any derogation is necessary to secure the proper administration of justice or to protect a person’s Convention rights.
“I am not satisfied that [the Trust] or [Rose] have established a case which meets the threshold for granting an order, or that any such order would be proportionate.”
‘This is bigger than Rose’
Responding to the ruling, Darlington nurse and President of the Darlington Nursing Union (DNU), Bethany Hutchinson said: “We are pleased that the tribunal has refused the order and hope this is an important win on the road to full justice.
“This is not about Rose and is much bigger than Rose. This is about an untenable Stonewall inspired policy used across the NHS which allows men to use female changing rooms if they merely ‘identify’ as a woman. This policy puts women at risk, and yet no one in the NHS or the government appears able or prepared to do anything about it, so we have to fight this battle instead.
“From the beginning we have been very sceptical about Rose’s claims of ‘distress and anxiety’ and asked why, if this is the case, is he continuing to use the female changing rooms, unnecessarily appear on our unit, and why are we still changing in the ‘temporary’ changing room 8 months on?
“The NHS and government must urgently overhaul this policy that is putting women, girls, mothers, daughters and sisters, at risk, not just at our hospital, but across the country.”
Andrea Williams, chief executive of the Christian Legal Centre, said: “This is an important victory on the road to justice for the Darlington nurses.
“Open Justice is a crucial legal principle, especially in such a high-profile case which has huge ongoing public debate, and engagement from the highest levels of government.
“This case is about truth, reality and whether a man can be a woman just because he says so.
“If we suppress access to open justice and media scrutiny on this case, we suppress the truth.”
Streeting “kicks can down the road”
The ruling comes after the Darlington nurses have challenged health secretary, Wes Streeting, over his decision to “kick the can down the road” on the issue of single-sex spaces for nurses in the NHS.
The nurses met with Mr Streeting in October after he made a statement that he was ‘horrified’ by their case.
After submitting policy proposals to resolve these conflicts in the NHS in line with the law, Mr Streeting said that he would “consider” what steps to take only after receiving the Supreme Court ruling in a different and unrelated case which may well take up to a year to be delivered.
The nurses said that it means that NHS medics will “continue to suffer and be discriminated against” as the Government tries to “ride two horses at once”.
The media and public alarm over the issue of single sex changing rooms in the NHS has continued to escalate in recent weeks.
A nurse with 30 years’ experience, Sandie Peggie, has taken NHS Fife to an employment tribunal, claiming she faced discrimination and harassment at work because she had to share a female changing room with a biological man, Dr Beth Upton.
Last week, the Equality and Human Rights Commission (EHRC) “reminded” NHS Fife of its “obligations” under the Equality Act 2010 and requested to see impact assessments of its policy.
The EHRC also wrote to the Scottish health minister expressing “concern” over a forthcoming guide to transitioning which it has been reported will say that transgender NHS staff must be allowed to use their “preferred facilities”.
