Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton, following Employment Tribunal judgment - thread #62

Oxford law expert challenges Sandie Peggie tribunal restrictions

https://www.thetimes.com/article/24e18406-0d37-4765-b541-1c975617ff5e?shareToken=aec004acf1868f506c6867ded8b2f429

i got no response to my request to observe remotely :(
Have tribunal tweets got permission though?

Cases with this much interest should be livestreamed .

Just twigged this is due to start again Wednesday.

From another thread it looks like the Manchester one kicks off again.this week too.

I saw a post on X from Nicole, Sandies daughter, apparently there is no overflow room for Sandies family to watch the hearing.

https://x.com/nicoleepeggiee/status/2100938800813707264?s=46&t=lJm6-66fq4MtGcwwAsK6Kg

Interview with Sandie by Nick Wallis in the Times
https://www.thetimes.com/article/17109c27-00ba-41a3-ae51-188bb7223ab5?shareToken=04d0e8d9f7902cb07a11167bdcb4ffc5&ver=article

Mmn. If one wanted to be very cynical, one might think it looks like the level of public interest and scrutiny in this case has become highly inconvenient.

That's a nice article. And doesn't Sandie look well, especially compared with how stressed she looked around the time of the original tribunal! I hope she really is.

Good luck to her, she's admirable for all that she's taken on and I hope she succeeds. Agree, she always looks good!

Me too @fanOfBen I’ve only ever been involved in Employment Tribunals as a witness and that only in cases that were pretty much guaranteed wins (because the person bringing them was mad). But even then it’s enormously stressful and absolutely takes over your life. For Sandie to plough on like this through losses is admirable. Well done Sandie.

And a nice, clear article from Nick Wallis

She looks a bit better but you can still see the strain in her face. The NHS wanted the employment tribunal help in secret, this tribunal is trying to restrict access. That's stupid as it just means it gets more publicity.

Here’s to the Streisand effect.

Michael Foran is doing a substack live, 6 pm Tuesday just to prep us all for the case against RCN.

I’m hoping for a slam dunk. Most unions pick and choose which ETs they are involved in - which is fair enough and I’d expect sensible criteria like not mad or decent chance of success. If SP proves they didn’t back her because of her legally protected beliefs only (they probably didn’t even assess her case, they certainly didn’t give her advice) then surely the court should throw the book at them.

I agree. This is not open justice.

What are they so afraid of the general public, journalists and legal experts seeing?

I won't be able to follow the hearing this week and I'm going to have limited internet access. So, some quick thoughts.

Sandie needs to show that the RCN refused to support her and that this has adversely affected her. She does not need to prove that the refusal was for unlawful reasons (presumably her gender critical views, either directly or indirectly), but she does need to make a prima facie case that it was.

Assuming she can do that, which seems likely, RCN needs to show that their failure to support her was on valid legal grounds. They may, for example, be able to justify their failure to support her if they can show that they had received legal advice that the case was not winnable.

My view is that the RCN has published plenty of material showing that it promotes gender self-id principles. There seems to be little evidence that they consider the impact on their female members or patients. There also seems to be a consistent pattern of RCN refusing to support female members objecting to trans-identifying males using the female changing rooms. I therefore think Sandie should win, but that is without seeing what evidence will be presented or hearing the witnesses.

I think the biggest question for me at this stage is whether the tribunal will think the timing is significant. FWS was decided in April 2025, over a year after Sandie's problems with Fife started and several months after RCN had rejected her request for legal assistance. It is possible the tribunal will conclude that it was reasonable for RCN and/or its legal advisers to think her case was not winnable prior to FWS and that it was this rather than discrimination against members with GC views that led to them refusing support. However, I hope that, even if there is evidence that RCN did not think the case was winnable, the tribunal will conclude that this was due to anti-GC bias by RCN or its advisers.

@prh47bridge

They may, for example, be able to justify their failure to support her if they can show that they had received legal advice that the case was not winnable.
...
It is possible the tribunal will conclude that it was reasonable for RCN and/or its legal advisers to think her case was not winnable prior to FWS

Does that work for them if that legal advice was based on an incorrect understanding of the law? In other contexts a mistake of law is not a defence, or considered a reason to escape consequence. It would be all too easy to commission an obviously erroneous understanding of some legal point and rely on it as a shield.

Is there case law on this?

RCN make it clear to members that they can refuse to support a case in a number of circumstances. The one I believe is significant here is that they will only back a case if it has a reasonable prospect of success, i.e. there must be more than a 51% probability of winning. If their Legal Services department believe the case falls below that line, they will not offer support.

Simply being wrong about the chances does not give the member any basis for taking action against RCN. The question is whether the refusal constitutes a breach of contract or unlawful discrimination.

Given that FWS had already lost in court twice before Sandie's case started, the position of the courts was that the definition of sex was not limited to biological or birth sex. I think it would be hard to argue that RCN were in breach of contract for following the law as the courts had ruled it stood at the time. That would involve saying that they should have known which way the Supreme Court was going to jump.

I therefore think this comes down to whether there was unlawful discrimination, which is what I suspect Sandie's lawyers will argue. If that is indeed the argument, it doesn't matter whether RCN's Legal Services department got the law wrong. What matters is whether they made the decision for discriminatory reasons. If they were wrong but not for discriminatory reasons, there was no unlawful discrimination so the argument fails.

@prh47bridge

That would involve saying that they should have known which way the Supreme Court was going to jump.

Forgive me but isn't that always the case? Everyone must be presumed perfectly to know the law, or the system doesn't work at all. The argument you're making is perilously close to saying the law itself was somehow changed by the Supreme Court.

Given that FWS had already lost in court twice before Sandie's case started

This is the bit I have trouble following. The Scottish Ministers could make the same argument: "we thought we'd win, and two courts agreed with us." Unfortunately the third didn't, and that's the one that counts. I don't see why it would be any more exculpatory for a third party to base their actions on a wrong understanding of the law than for the Scottish Ministers.

Nick Wallis will be in Dundee for the full hearing and reporting regularly. Glad to hear it.

I hope he gets into the room, given that there won’t be an overflow one.

@MyAmpleSheep

You are (understandably) confusing two different things.

When looking at breach of contract or negligence, the question is whether RCN's Legal Services department was negligent.

Misunderstanding (or being ignorant of) the law is not negligence. Negligence means failing to exercise the care that a reasonably prudent person would use in a similar situation, resulting in harm to someone else. So they are entitled to argue that, given that their understanding of the law was a common one that was shared by the courts at the time, a reasonably prudent person would have acted as they did.

I know this can be difficult to get your head around, but it is different to, say, an employer being taken to court for failing to provide single sex toilets. That is not a question of negligence. That is a straightforward question of whether they have broken the law. In that case, misunderstanding or being ignorant of the law is no excuse. If an employer failed to provide single sex toilets and make sure they were genuinely single sex, they have committed a criminal offence.

However, when you argue that someone has been negligent, there has to be more than them simply misunderstanding the law. If that were not so, every single lawyer who gave advice to clients based on the decisions of the lower courts in FWS before it got to the Supreme Court could be sued for negligence, as could every single lawyer who advised the Scottish Ministers that they could win their case. In reality, any attempt to sue on this basis would fail. These lawyers were exercising reasonable care in giving their advice, so they were not negligent even though it turned out they were wrong.

I thought it was already clear at that time that men without a GRC were legally men? The 2025 FWS victory was that men with a GRC are still men, despite their GRC legal fiction, when interpreting the Equality Act 2010, wasn't it?

You are (understandably) confusing two different things.

A not unusual occurrence. Thank you for taking the trouble to explain.

nopey no no to all the above. I speak as an ex trade union shop steward.

the starting point is the union failed to offer her support from the get go.

allegations were made against her and as a fee paying member it was the job of the union to be present at the first instance, it is not the role of a union representative to determine guilt or otherwise, during a disciplinary hearing.

Their job is to ensure a proper process was observed, by sitting in during the proceedings. which they did not do.

her claim is about that.

if they further decided that they could not on the balance of probabilities offer legal support, then that would not be up for challenge.

but as they failed to offer appropriate support in the first place, and likely were not even asked for legal support, or indeed analysed anything

the question of legal support is beyond what happened.

I might add that flowing from the failure to appraise themselves of the circumstances in the first place, would cause a failure to refer to legal representation as opposed to an assessment of the possibility of success which they rendered themselves incapable of doing.

on the bare facts contractually the RCN failed to offer appropriate support

and that is it.

That was what the argument was about in FWS as Scottish Ministers had only expanded the definition of "woman" to include men with a GRC. There was therefore no dispute in that case that a man without a GRC was still a man for the purposes of the Gender Representation on Public Boards (Scotland) Act. However, a cautious lawyer at that time could point to other judgments which suggested the courts might say that some men without a GRC should be allowed to use women's changing rooms. Which, indeed, is the decision in Sandie's case and will remain the decision until she wins her appeal.