NHS Fife tries to silence nurse - Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton - thread #7

[nauticant]

Sandie Peggie, a nurse at Victoria Hospital in Kirkcaldy (VH), has brought claims in the employment tribunal against her employer; Fife Health Board (the Board) and another employee, Dr B Upton. Ms Peggie’s claims are of sexual harassment, harassment related to a protected belief, indirect discrimination and victimisation. Dr Upton claims to be a transwoman, that is observed as male at birth but asserting a female gender identity.

The Employment Tribunal hearing started on Monday 3 January 2025 and is expected to continue for 2 weeks. The hearing commenced with Sandie Peggie giving evidence. Dr Beth Upton started giving evidence on 6 February.

Access to view the hearing remotely can be obtained by sending an email request to [email protected] headed Public Access Request (Peggie v Fife Health Board) 4104864/2024 and requesting access.

The hearing is being live tweeted by https://x.com/tribunaltweets and there's additional information here: https://tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr. This also has threadreaderapp archives of live-tweeting of the sessions of the hearing for those who can't follow on Twitter, for example: archive.is/xkSxy.

An alternative to Twitter is to use Nitter: https://nitter.poast.org/tribunaltweets

Thread 1: https://www.mumsnet.com/talk/womens_rights/5186317-nhs-fife-tries-to-silence-nurse

Thread 2: https://www.mumsnet.com/talk/womens_rights/5267591-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-thread-2

Thread 3: https://www.mumsnet.com/talk/womens_rights/5268347-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-3

Thread 4: https://www.mumsnet.com/talk/womens_rights/5268942-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-4

Thread 5: https://www.mumsnet.com/talk/womens_rights/5269149-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-5

Thread 6: https://www.mumsnet.com/talk/womens_rights/5269635-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-6

From my post on page 1:

SP (claimant) is the one who has brought the case to the Employment Tribunal (ET) – naming NHS Fife as Respondent 1 (R1) and Dr Upton as Respondent 2 (R2).

She claims against Dr U personally

1) Harassment under EA for being a biological male in the female only CR

2) Whistleblowing – her challenge to Dr U in CR was a “protected disclosure” that led to “detriments” – Dr U punishing her via formal complaints of bullying and harassment etc.

These are very serious allegation to make against an individual. To win the case the SP team have to provide legal evidence for these two claims.

CLAIM 1
ACAS define harassment:
https://www.acas.org.uk/discrimination-and-the-law/harassment
In summary - under the Equality Act 2010 one of three types of harassment is ”related to certain 'protected characteristics'”.

I assume this is the basis of the SP claim 1 under the category of “sex”. (Meanwhile Dr U’s defence is that it was SP who was harassing him under the category of “gender reassignment”.

From the ACAS website:
“To be harassment, the unwanted behaviour must have either:

• violated the person's dignity
• created an intimidating, hostile, degrading, humiliating or offensive environment for the person

By law, whether someone's behaviour counts as harassment depends on:

• the circumstances of the situation
• how the person receiving the unwanted behaviour views it
• if the person receiving the behaviour is 'reasonable' to view it as they do

If someone makes a harassment claim to an employment tribunal, the judge would consider whether a 'typical' person would see the behaviour as harassment.”

SP told Dr U that she was upset and embarrassed. I think in evidence to JR she said humiliated (?) and that “my dignity is important to me as a woman”. Dr U’s evidence confirms that she said this.

JR’s questioning is interesting because covered a lot about the timing of when SP spoke to Dr U. Possibly because it’s important context when evaluating SP’s motives for speaking to Dr U.

If SP started the convo while Dr U was washing his hands then it might be said that SP started a premeditated convo just because Dr U was there as a TW - causing upset and humiliation - a harassing action or “hate incident” to Dr U’s gender reassignment characteristics.

But if SP started the convo after Dr U had started to undress then it that context leans more towards SP starting the convo to assert her own female sex characteristics in response to Dr U removing clothes in a situation that she couldn’t leave due to the bleeding.

On the balance of probabilities will the panel believe SP was a TERF out to get Dr U? Or a woman (previously molested by her GP) uncomfortable about being in the CR with a biologically male Dr and unable to leave?

CLAIM 2
ACAS define whistleblowing:
https://www.acas.org.uk/whistleblowing-at-work

In summary - Whistleblowing can be reported to an employer or to the individual responsible for the harassment in order for the legal protections to apply.

On the balance of probabilities will the Panel decide that did SP did make a “protected disclosure” to Dr U when she said she was embarrassed and asked Dr U to leave?

If yes then Dr U’s formal complaints are considered a “detriment” to SP for which the Tribunal can award compensation.

IANAL - so this is just me trying to work out what the panel are going to be deliberating on…

He doesn’t mean afraid they way we might mean it. He means afraid everyone will view him as a man if he uses the correct sex changing facilities. Which is why he’s ‘afraid’ of SP and why such lengths must be pursued to punish her for saying out loud she knows he’s a man.

His self held identity is at risk.

Interesting musings, @KnottyAuty .
You'd think that the mere presence of a bloke on a women's changing room was enough, though? It's gobsmacking that details of their interactions are even relevant. He was there. That should be case proven!!

@KnottyAuty from what I remember from TT, SP's and Dr U's accounts of the changing room conversation differ in that SP said that she was facing the lockers when she started the conversation with Dr U, he had finished washing his hands and was undressing, she thought it sounded like he was removing trousers but she wasn't looking at him. She later turned to face him as he was putting his coat on. Dr U said that SP was standing facing him the whole time she was talking to him.

Build a new gender neutral changing facility?!

It also shows he isn’t prepared to validate the identity of Bryson, who without casting aspersions is both trans and a rapist (separately and variously)

Slightly digressing here, but does anyone know if Sandie and DU are both still employed by the trust?

Is Sandie still suspended 14 months later? Did DU complete his Foundation training before he joined A&E at Fife, and if so has he stayed there as his specialism? when he's not off sick

Just thinking ahead...

I know I've said this before, as have PPs, but SP should not have had to disclose her history of sexual abuse or details of an incident of menstrual flooding and who she discussed this with, to justify her discomfort with a man in the women's changing room. He simply should not have been there anyway. And shame on whoever gave him a pass card.

I think you've misunderstood the point of my comment.

I'm not disagreeing that it is ridiculous to say that because someone simply decides to take on the title of "woman" that they actually become one.

What I'm saying is that the law is very unclear as to what is meant by the terms "woman" and "female", and that this uncertainty is something that has given TWAW activists a massive loophole to exploit and has contributed to the current mess.

While I can understand that the 1992 Workplace Regulations do not define the terms "man" and "woman" - because nobody would have considered it necessary in or before 1992 - I do not understand why the Equality Act 2010 did not define the terms "male" and "female" (which it uses in the definitions of "man" and "woman") and I similarly do not understand why the Interpretation section of the GRA 2004 does not define what is meant by the term "gender", although it seems to have been understood as being synonymous with "sex". (Maybe?).

On page 12 of thread 5 of this topic @PriOn1 said re this lack of clarity in the GRA in 2004:

'Fairly sure it was envisaged by the transactivists who pushed for it, and indeed deliberate. If you read Hansard, various things were questioned at the time (including the language confusion) by Norman Tebbit, amongst others. It was passed on account of the politicians who voted being persuaded that it would only ever be used by a maximum of 5000 people out of the whole population. The shitshow was exactly the intent of Christine Burns and (I think) Stephen Whittle, who ensured it and the EA were so loosely worded as to cause maximum opportunity for expansion of who could be regarded as “trans”. ' (NB - ref to EA should be ref to GRA)

So I think that in 2010 there definitely was a clear need to define the meanings of "sex" and "gender" in the EA, and to clarify that they were different attributes.

Word. With no means disrespect, whether a woman has been abused or is menstruating should not be used as justification for asking a man to leave a woman's changing area, or stopping him from entering it in the first place.

Word. With no means disrespect, whether a woman has been abused or is menstruating should not be used as justification for asking a man to leave a woman's changing area, or stopping him from entering it in the first place.

While this is undoubtedly true, what it does is rouse a degree of sympathy and empathy for SP among readers of the story that DU was evidently unable to summon in person, and thus add to the peaking of the population.

@BeaTwix 👏

Thank you so much for these informative threads. Thanks also to Tribunal Tweets for their brilliant reporting. I continue to be in awe of the brave women who make a public stand. My very best wishes to Sandie Peggie, a remarkable heroine and her team for tomorrow and the week ahead.

@KnottyAuty two questions come to my mind as a result of your questions about what is harrassment and what is whistleblowing (protected disclosure).

On the balance of probabilities will the panel believe SP was a TERF out to get Dr U? Or a woman (previously molested by her GP) uncomfortable about being in the CR with a biologically male Dr and unable to leave?

Will they take into account that DU kept records of micro-agressions (possibly other staff too) and appears to have wanted to compel SP to interact socially with them when this was not necessary. For example, summoning SP to talk to them when they could simply have sent a question via the nurse, and then waving and saying Hi to get SP to get her to engage with them (and complaining when she did not). As DU was recording all the things (eye contact etc) from interactions with SP this does represent being out to 'get' SP? SP seems to have actively avoided confrontation until forced into it.

On the balance of probabilities will the Panel decide that did SP did make a “protected disclosure” to Dr U when she said she was embarrassed and asked Dr U to leave?

I was wondering whether the protected disclosure includes SP mentioning about past sexual abuse that she had been subject to (have I understood that correctly). Is it possible that DU shared this confidence? I would not think that it was one which he was permitted to share. He did not actually leave - and he could have done so. He stayed and argued the toss (about right to be there, need to go through process, etc.)

EDIT TO ADD - had I disclosed past sexual assault and the person listening compared it to their own experience of unwanted hugs, catcalls (not sure how unwanted these were) and hand on knee I would have been really upset. This trivialises VAWG.

I was wondering whether the protected disclosure includes SP mentioning about past sexual abuse that she had been subject to

As far as the law is concerned, that would not have been a protected disclosure even if she did mention it. She may have mentioned it at the same time, but it is not in and of itself protected.

That was me!

Worse - the process being punishment - JR’s questions to SP were to show the process that was followed was standard policy. All fair etc. “Be Kind” and treat everyone with dignity and fairness.

Except the policy’s official process was not:
Keep in the dark about the specifics of the complaints and isolate for months from friends and colleagues. Punishment yes. Process - bollocks it was

Ok fine. But the Tribunal panel have to consider what an average person would think when they make their deliberations

About the shocking case of the kidney patients being put on the ward so a man could have the side room, I'm seeing it suggested more and more that the NHS forgets its fondness for multi-bedded bays and starts to move towards private rooms.

There are no doubt cost implications, but if repeated legal cases stem from the current situation, it might end up being cheaper to go with the private room only option.

Anyone with a staff card can enter the female CR. It apparently wasnt able to tell who was who. The NHS relied on self selection by putting a sign “Female Staff Only” near the card reader

@KnottyAuty Thanks for the whistleblowing link. I am quoting some of it below (my bold where I think there is relevance to current case.) IANAL :

By law, there are several issues you can whistleblow about. These are called 'qualifying disclosures'.
Qualifying disclosures include:

• a criminal offence – for example, an employer has been trying to bribe people
• the breach of a legal obligation by an organisation – for example, an employer has neglected their duty of care towards children in a care home
• a miscarriage of justice – for example, a member of staff has been dismissed for something that turned out to be a computer error
• someone's health and safety being in danger – for example, an employer has forced staff to serve contaminated food
• damage to the environment – for example, an employer has been regularly polluting local rivers

You can also whistleblow about someone trying to cover up information about any of these issues. You can make a qualifying disclosure about an issue that's happened at any time. This includes if it's likely to happen in the future. It can also be about something that takes place overseas. You can report one or more qualifying disclosures. When a qualifying disclosure is protected By law, you'll be protected as a whistleblower if you can show it's reasonable for you to believe that what you disclose:

• fits into one of the categories of a qualifying disclosure
• is in the public interest

In the public interest means it has to also affect others. For example, other workers, customers or the general public. A problem or grievance that is personal to only you is unlikely to count as being in the public interest. Something is more likely to be in the public interest:

• the more serious the issue is
• if you're reporting something that was done deliberately
• if the issue involves a large, influential or well-known employer
• if there are a large number of people affected by the concerns

Yes, I understand what he means - but, if he's afraid of men in the men's changing, and he's afraid of SP in the women's CR, but he only complains about SP, then it seems to me that that is clearly targeted at SP, and since it was due to his wanting to access the women's CR, I'd also suggest that he's targeting her based on a protected characteristic - her sex.

@FallenSloppyDead

”You can make a qualifying disclosure about an issue that's happened at any time. This includes if it's likely to happen in the future.”

wondering if SP’s speaking to her line manager or her line manager’s convo with management qualifies?

Maybe that’s what “the average person” would conclude?

Yes, I wondered that. I think the disclosure is breach of legal obligation by NHS to provide separate-sex facilities. Possibly two disclosures? First to ED, the manager, which led nowhere. Second disclosure to DU as the individual responsible for the breach???

In this respect Dr U also requested anonymity for the hearing. Because of fear of violence against TW. By implication (and MF’s statement) that would most likely be fear of men. So it was OK for Dr U to be risk averse about colleagues but when SP did exactly the same it was harassment and bullying. Double standards clear as day