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

I, a five foot six woman, have just measured from my shoulder to my finger tips. It's 70 cm for me so if I was to properly wave at someone I'd be extending my arm right smack bang into the face or body of someone stood 50cm away from me.

Of course if it was a Mr Darcy wave that would not hit the person I was waving to stood right next to me.

(The chair I'm currently sat on is over 50 cm wide.)

If he truly was only half a metre away whilst she was walking and talking with a colleague that he'd sent off to find Sandie/speak to Sandie there was no need to wave to her, unless to be a passive aggressive arsehole.

Interesting to note that by the time I'd read that article the Observer had changed the headline from 'in front of a trans colleague' to 'in front of a male colleague'.

I've been told that in terms of public liability, there's basically a 'pot' of money for claims etc, as insurance premiums for a hospital would be monstrous - not sure if the same applies in relation to this sort of legal action, though?

Interesting to note that by the time I'd read that article the Observer had changed the headline from 'in front of a trans colleague' to 'in front of a male colleague'.

That is interesting.

Now read bits of the review document - it covers employers liability as well as medical negligence. I'll need to read more to see if they cover Scotland but it's a scheme health authorities and private providers can opt into. The amount you pay to opt in depends on your claims record so NHS authorities in England should be looking at this and thinking if Sandie wins will our payments rise? The authority also issues guidance so will it be issuing guidance on how to avoid such claims in future and if so will a TRA prepare it?

Sonia's article is excellent, and explains the issue really clearly.

As always in these tribunals, I'm struck by the fact that the hospital has decided to press on even though it is clearly in the wrong, both legally and morally, and that it also has absolutely no idea that public opinion is overwhelmingly against it. Presumably that is because NHS management is so ideologically captured that they imagine ordinary people think the same way they do. (This seemed the case with all the respondents in these cases: CGD in the Forstater case, Garden Court Chambers, Social Work England, Open University etc. They all seemed startled to discover that their view that men can be women wasn't universally shared.)

A slightly side issue, but I saw a tweet this morning about a case where a patient recovering from a kidney transplant, who should have been given a single room, was instead put on a public ward because the single room was given to a trans-identifying male for his privacy. Frustratingly, I can't remember the name of the account so can't find it. Anyone else see it?

I've always found stuff like this fascinating. When I'm speaking to English friends at length, the amount of colloquialisms in Standard Scottish English which I haven't even realised differs from Standard English becomes clear (outwith being the obvious one!)

Because in 2010 there was no need to define those terms because the average person understood them to be referring to biological differences that we can all see/understand (99% of the time).

For that very reason then, it is ridiculous to say that because someone simply decides to take on the title of "woman" that they actually become one. And that is implicit in what the lawmakers did in 2010 when drafting the Equalities Act.

And it is safe to say that this is what is still understood by the average person today.

Oh, thank you Sonia Sodha. As always (perhaps even more than usual), she has written such a clear, trenchant and fair article on this subject. Absolutely makes all the relevant factual points and points of principle with such clarity.

And thank you to The Observer for publishing it. Especially because it gets into the online space of The Guardian, so unforgivably dominated by non-factual tribalist harrumphing on questions relating to women's rights in relation to men's trans identities.

Someone said upthread that they wonder what sort of weekend Dr Upton is having. I am sure the fragrant doctor is having a perfectly marvellous weekend, as Dr Upton has no plan to attend the hearing tomorrow. I will eat my hat if Beth appears, I really will.

Sonia Sodha has really said the quiet part out loud, hasn't she?

@Justabaker just seen this request. I will keep looking as this is NHS Scotland but this link may help

https://resolution.nhs.uk/about/governance/

“NHS Resolution (the operating name of the NHS Litigation Authority) plays an important role in the health care system by administering on behalf of the Secretary of State for Health the NHS indemnity (the Schemes), established under s.71 of the National Health Service Act 2006 and associated regulations. This enables the Secretary of State for Health and Social Care to set up schemes to help the NHS and providers of NHS care to pool the costs of any “expenses arising from any loss of or damage to their property, and liabilities to third parties for loss, damage or injury arising out of the functions of the bodies concerned”.

NHS Resolution seems to operate a bit like an insurance company.

That seems really important. It shows that someone has paid appropriate attention to a complaint. I have noticed on several occasions in the past that subs have been allowed to write headlines that distort articles that are otherwise moderately or completely balanced.
It almost seems more reassuring than Sodha's fair article, since we wouldn't have expected anything else from her. Mid-ranking employees have often been allowed to call the shorts in toxic ways in relation to trans issues. It looks like perhaps we are moving towards a culture in which that won't be tolerated.

@Justabaker this is what you want, I think:
This is what the annual accounts for Fife NHS say (see pages 82 and 83):
Participation in CNORIS The Board participates in the Clinical Negligence and Other Risks Scheme (CNORIS). The principal of the scheme is that it will work in a similar manner to insurance schemes through the risk pooling of legal claims in relation to clinical negligence and other risks. The amount disclosed recognises the Board's share of the total CNORIS liability for NHS Scotland. Further detail is provided in Note 13b.
NOTE 13B. CLINICAL NEGLIGENCE AND OTHER RISKS INDEMNITY SCHEME (CNORIS)
2023 Note 2024

I am going to have to fudge the table all £ figures below are £'000s
-Provision recognising individual claims against the NHS Board as at 31 March note 13a £22,912 (for 2023 £54,110)

• Associated CNORIS receivable at 31 March 9 (22,535) (for 2023 £(53,721)
• Provision recognising the NHS Board's liability from participating in the scheme at 31 March note 13a £52,592 (for 2023 £51,357)

Net Total Provision relating to CNORIS at 31 March 52,969 (for 2023 £51,746)

Continuing with the paste:
The Clinical Negligence and Other Risks Scheme (CNORIS) has been in operation since 2000. Participation
in the scheme is mandatory for all NHS boards in Scotland. The scheme allows for risk pooling of legal claims
in relation to clinical negligence and other risks and works in a similar manner to an insurance scheme.
NHS FIFE - NOTES TO THE ACCOUNTS FOR YEAR ENDED 31 MARCH 2024
83 | P a g e
CNORIS has an agreed threshold of £25k and any claims with a value less than this are met directly from
within boards’ own budgets. Participants e.g., NHS boards contribute to the CNORIS pool each financial year
at a pre-agreed contribution rate based on the risks associated with their individual NHS board. If a claim is
settled the board will be reimbursed by the scheme for the value of the settlement, less a £25k “excess” fee.
The scheme allows for the risk associated with any large or late in the financial year legal claims to be managed
and reduces the level of volatility that individual boards are exposed to.
When a legal claim is made against an individual board, the board will assess whether a provision or contingent
liability for that legal claim is required. If a provision is required, then the board will also create an associated
receivable recognising reimbursement from the scheme if the legal claim settles. The provision and associated
receivable are shown in the first two lines above. The receivable has been netted off against the provision to
reflect reimbursement from the scheme.
As a result of participation in the scheme, boards should also recognise that they will be required to make
contributions to the scheme in future years. Therefore, a second provision that recognises the board’s share
of the total CNORIS liability of NHS Scotland has been made and this is reflected in third line above.
Therefore, there are two related, but distinct provisions required as a result of participation in the scheme. Both
of these provisions as well as the associated receivable have been shown in the note above to aid the reader’s
understanding of CNORIS.
^Further information on the scheme can be found at: http://www.clo.scot.nhs.uk/our-services/cnoris.aspx^

Link to the Financial statements is here: https://www.nhsfife.org/media/a0blsef5/nhs_fife_annual_report_and_accounts_2023-24.pdf

Brilliant thanks - and how helpful the headline is!
Imagine if SP had been made to use Dr U's preferred language?

Headline: No Woman Should be Forced to Changer Her Clothers In Front of a Woman

Info on CNORIS https://www.nss.nhs.scot/legal/clinical-negligence-and-other-risks-indemnity-scheme-cnoris/guide-to-the-clinical-negligence-and-other-risks-indemnity-scheme-cnoris/

Specifically

Miscellaneous
Employment practices liability arising out of wrongful employment practices. This also covers legal liability of members arising from the acts and omissions of members, appointed trustees in respect of Endowment Funds, and also member-appointed individuals sitting upon Ethics Committees.

NHS management is so ideologically captured that they imagine ordinary people think the same way they do

I can comment on parts of NHSE. It might startle the general public but I think FWR would not be surprised to learn the number of (very) senior staff, committee chairs and members who have trans-identifying children.

Sadly, NHS is a misogynist, bullying culture. This activism has been a gift to indulge both parts of that but always in the name of compassion and #BeKind. I note NHS Fife has a CEO who stressed the importance of kindness as part of her appointment.

@KnottyAuty Yep it is par for the course it is how they wear you and others down - always correspondence late in the week or on a Friday afternoon is the norm in litigation. Six years in in my own case, alleging breach of my Article 6 rights and seeking a judicial review of proceedings of a Family Court, hence my empathy, and support for SP.

Adam Watson is the Head of the Employment team at CNORIS that is responsible for Fife:
https://www.nss.nhs.scot/legal/contact-us/employment/

There's another great piece in the Scotsman. You can see why NHS Fife wanted this tribunal heard in secret - people are being peaked across the country:

https://www.scotsman.com/news/opinion/columnists/euan-mccolm-nurses-tribunal-over-trans-doctor-in-female-changing-area-may-be-red-line-for-public-over-gender-id-4981496

Thanks for putting this so eloquently.

Could not find it......

It would be going against what a judge ruled. Which is what needed to happen years ago but there we are.

It doesn't cover Scotland. NHS Scotland has CNORIS. NHS Fife are a member (It is compulsory). It is basically a risk pooling scheme I think. Ultimately all money comes from the public purse. From a quick glance it would seem to cover employment issues as a non clinical risk.

Going back to the Observer article, it's really good to see this written so clearly:

"It transpired that Upton – who clearly took strong offence at two previous incidents when Peggie left the changing room after entering to find the doctor there – later made other potentially career-ending allegations in relation to Peggie and patient safety, which her lawyer has suggested, together with the complaint of bullying, are unfounded.
Astonishingly, NHS Fife has failed to comply with a judicial order to disclose all the relevant documents to the tribunal, including some that pertain to when the complaints about patient safety were raised and how they were investigated. Peggie’s lawyers also suspect – based on the incomplete documentation they have seen – that NHS Fife abandoned an original investigation and started a new one, but has not disclosed this to the court. NHS Fife denies this, which will be subject to scrutiny this week. This is highly suggestive of a public body that has conducted itself inappropriately, and may well have prejudged the outcome of a high-stakes complaint."

SP was told - standard procedure - not to talk to anyone about the suspension. So she has been cut off from the support of friends and colleagues at the hospital from her "special leave" on 30 Dec 2023.

Staff at the hospital did not know what was happening and so there wasn't the chance for people to #StandWithSandie. It is all just coming out into the public now through the ET. Which they had wanted behind closed doors.

Compare this to Dr U being fully supported throughout by the institution of the NHS and being permitted to bring a phallanx of supporters into the ET room.