NHS Fife tries to silence nurse - Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton - thread #22

[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 February 2025 and was expected to last 2 weeks. However, after 2 weeks it was not complete and it adjourned part-heard. It is planned that it will resume on 16 July and the last day of evidence will be 28 July and then there will be 2 days of submissions from counsel meaning that the hearing will end on 30 July.

The hearing commenced with Sandie Peggie giving evidence. Dr Beth Upton gave evidence from Thursday 6 February to Wednesday 12 February.

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

However, as a result of problems with the livestreaming, apparently caused by a very large number of observers, remote public access to the hearing was suspended on Tuesday 11 February. It was suggested that it might be reinstated at some point but don't count on it.

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
Thread 7: https://www.mumsnet.com/talk/womens_rights/5270365-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-7
Thread 8: https://www.mumsnet.com/talk/womens_rights/5271511-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-8
Thread 9: https://www.mumsnet.com/talk/womens_rights/5271596-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-9
Thread 10: https://www.mumsnet.com/talk/womens_rights/5271723-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-10
Thread 11: https://www.mumsnet.com/talk/womens_rights/5272046-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-11
Thread 12: https://www.mumsnet.com/talk/womens_rights/5272276-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-12
Thread 13: https://www.mumsnet.com/talk/womens_rights/5272398-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-13
Thread 14: https://www.mumsnet.com/talk/womens_rights/5272939-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-14
Thread 15: https://www.mumsnet.com/talk/womens_rights/5273119-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-15
Thread 16: https://www.mumsnet.com/talk/womens_rights/5273636-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-16
Thread 17: https://www.mumsnet.com/talk/womens_rights/5273827-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-17
Thread 18: https://www.mumsnet.com/talk/womens_rights/5274332-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-18
Thread 19: https://www.mumsnet.com/talk/womens_rights/5274571-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-19
Thread 20: https://www.mumsnet.com/talk/womens_rights/5275782-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-20
Thread 21: https://www.mumsnet.com/talk/womens_rights/5276925-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-21

It’s a pity it’s being conflated with Self-ID, in a way, as the problem runs a lot deeper. We should be able to exclude even GRC holders from SSS if justified, and that holds with or without a change in the law. But that’s politics, and sadly both politicians and the media seem to be unable to grasp detail. With a few notable exceptions, of course. The level of misinformation is staggering.

and yea, lots of people are in the dark and assume a transwoman or trans woman is a natal female. Which really doesn’t help. If they clarified that, and the fact that 90 odd percent don’t lose their genitalia, public opinion would be very different I think.

I genuinely don't understand how this is supposed to work.

Are all the sinks in public spaces? are they monitored?

How do you fit this into an existing building?

How do you balance the need to protect public privacy with the need to check what is happening in the toilets? How do you know if a pupil is in the toilet? Are there cameras checking who enters and leaves?

Thanks for this - very interesting! I’m trying to wrestle with how things stand at present with the personal harassment claim against DU. Here’s my workings so far for comment/critique…

When a tribunal considers whether a claim of harassment is made out, it must take into account both the subjective perception of the person who feels harassed, and the objective question whether it is reasonable for him to feel that way; as well as “the other circumstances of the case”.
…
The fact that the act of misgendering was a manifestation of a belief falling with s.10, EqA would not operate automatically to shield her from such liability. The Tribunal correctly acknowledged, at para 87 of the Judgment, that calling a trans woman a man “may” be unlawful harassment. However, it erred in concluding that that possibility deprived her of the right to do so in any situation

So in the Female CR on Xmas eve 2023:

• the case for SP’s harassment claim is that the presence of a male (legally and biologically) in the room where she needed to undress (with some urgency) created a hostile and humiliating situation.
• the case for DU’s bullying/harassment claim is that SP used the word “male”, referred to men in women’s prisons and asked about “chromosomes” when saying that DU “shouldn’t be in here”

Does SP have a claim for harassment personally by DU?

Digging Into SP’s claim a bit more:
It doesn’t take a lot of imagination (for me anyway) to understand that a female would find it degrading to have to change clothes in front of/next to a male work colleague. 1 in 2 women have been sexually harassed/assaulted. TW retain the offending profile of males even after transition. SP had used that CR unimpeded for 20+ years. SP has a protected GC belief under the EA. The question is “how” she expressed that? Outside of the CR she used preferred pronouns and called DU Beth. She called DU Beth throughout the hearing (other than to make the legal case via standard pronouns). She thought that the event in the CR had been a robust conversation between colleagues rather than any serious event. SP had tried raising her issue with line management and got nowhere. She’d advised her manager that she’d have to say something to DU herself and ED didn’t say not to. She admits to calling DU a man as “it’s the truth”, referred to prisons but not rapists and can’t recall mentioning chromosomes (but may have done). When asked by JR about whether she’d harassed DU under NHS Fife policy, she simply said yes which was honest to a fault. Her answers generally were brief, to the point and seemed credible with details to back up her remembering of events. Under the EA SP is permitted to express her GC belief in a reasonable way - and given DU’s own evidence she was firm & direct but nothing described seemed like abusive expression. Afterwards SP didn’t speak about the incident with others - this could either be interpreted as her keeping her TERF attack secret (although presumably if it was a planned attack she’d have been crowing about it over Xmas lunch?), OR she hadn’t thought the convo was anything other than robust exchange between colleagues. What will the panel think?

From the other perspective, DU believed that they had a right to be in the CR as sanctioned by NHS Fife. DU believes in self ID GI, but had anticipated that using the CR might be controversial - telling KS about using it and taking contemporaneous notes in case of problems “need to escalate”. It appeared that SP had come to the CR at an unusual time and waited until they were alone before saying “you shouldn’t be here” - which appeared to DU to be an ambush. SP hadn’t dealt with this through “proper procedure” as pointed out by DU (not knowing about SP’s prior discussions). By DU’s own evidence SP referred to prisons and DU assumed she was comparing DU to a rapist. SP did refer to DU as a man and asked about chromosomes. These references were (in DU’s opinion/belief) insulting. DU said that the incident was frightening and intimidating. In evidence the reference to frightening was explored and (I think I recall correctly?) DU indicated that the fear was about not being able to use the CR in future rather than physical intimidation. DU was clearly concerned about being challenged from the notes and discussions they pre-prepared. As discussed in the previous case management hearing the request for anonymity was turned down because although DU had concerns about harassment, there was no evidence that this was a credible risk. So there’s already been discussion about DU’s perception of risk/possible upset and likelihood of occurrence. Certainly pre-prepared for a confrontation it’s no surprise that DU was very upset when their fears were realised - reacting to the situation as if it were a “hate incident”. The scale of reaction obviously affected colleagues Esther, Kate & Lauren (staff nurse?). The question is though whether the size of the reaction and framing as “hate” is reasonable under these circumstances? What will the panel think?

Apparently a possible precedent for assessing impact of one belief on another could use the 9 Factors from Higgs v Farmor School (my paraphrasing):

1. Nature and content of expression
2. Tone in which beliefs are manifested
3. Extent of boundaries of expression/manifestation
4. Manifestation require employee to have an understanding of the Likely audience

5 Extent and nature of the intrusion on others’ rights and the employer’s ability to run it’s business

1. Make clear that the views expressed are personal or their own, to safeguard the employer’s reputation from potential harm
2. Does a possible power imbalance exist in light of the worker’s position and the rights of the individuals who are being violated
3. Takes into account the nature of the employer’s business esp if vulnerable service users or clients might be impacted
4. Assess whether the limitation imposed by the employer is the least intrusive measure open to the employer

https://www.capitallaw.co.uk/news/higgs-v-farmors-school-court-of-appeal-upholds-protection-of-beliefs-in-the-workplace/

I will carry on mulling… would be interested in your thoughts.

I suppose it depends on the manifestation of belief? Those who believe that sex/biology is real and that they only want to change gender - are reasonably in line with at least some social conventions - but I suppose that belief is TWATW? - and likely to get WORIADS. Then theres DU’s version that TWAW and biological women at that too so they should get to do whatever all natal born women get… unlikely to pass WORIADS. So maybe this is an ET that does have to grapple with whether DU’s belief is WORIADS? Or whether they’ll duck it and point to the Workplace Regs and GRC?

Hasn't the tribunal already established that it is permissible to refer to sex if relevant?

I don't think Upton's use of the changing rooms is in itself harassment, because I don't think it's up to him to establish whether NHS Fife's changing room policy was legal.

I think that the way in which the case against Peggie was pursued may have been harassment.

• the case for DU’s bullying/harassment claim is that SP used the word “male”, referred to men in women’s prisons and asked about “chromosomes” when saying that DU “shouldn’t be in here”

Upton is not making a claim. He is a respondent, not a claimant.

But isn't this relevant to the original suspension?

DU's belief that TWAW are biological women may be protected, but it doesn't mean the manifestation of the belief is protected. If his belief is protected, he can't be face any sanctions for believing he can conduct intimate examinations on women who have requested a female doctor. However, he can face sanctions if he actually conducts such an examination.

In terms of this tribunal, whether his belief is protected is irrelevant in my view. The tribunal has to decide if his actions (and NHS Fife's actions in support of him) are acceptable. If they decide his actions are unacceptable, the fact they may have been driven by a protected belief is irrelevant.

In the same way, a Jehovah's Witness who is a doctor may believe that it is sinful to accept a blood transfusion. Their JW beliefs are almost certainly protected, so they can't be sacked for this belief. However, they can be sacked if they refuse to give a patient a life-saving blood transfusion, notwithstanding the fact that their action is driven by their protected belief.

There are multiple claims against DU personally and also against NHS Fife. The first against DU is whether they harassed SP? The second is victimisation after SP stated her protected belief?

I wasn’t looking at the litany of claims against NHS Fife in my posts above. Just the first personal one against DU. The question is how will NC prove this claim? And what might the panel think?

Edited to add - if there wasn’t any harassment of SP then the case against DU personally falls apart?

Yes, I think it's confusing because Upton's harassment claim about SP was an internal one which we only know about as a result of her legal case. Obviously Upton hasn't made any legal claim against SP.

Yes my words are confusing. I suppose it should have said Tribunal defence instead of claim

DU’s internal harassment/formal complaint is very relevant to SP’s Victimisation claim tho - but not really to the personal claim against DU for harassment

I agree with all of this except I’m confused - doesnt DU have to establish that they have a right to be in the CR via the EA 2010? If WORIADS is not relevant then DU is a male in the female CR. Not OK. End of story. So the protected belief has to be weighed somewhere I think?

doesnt DU have to establish that they have a right to be in the CR via the EA 2010?

Probably not, because it's not his policy. It's NHS Fife's. The examination of whether the policy breaches EA 2010 is surely for NHS Fife.

I think the harassment would be making up spurious charges to get Peggie suspended .

I think the harassment would be making up spurious charges to get Peggie suspended .

YY.

There is ample evidence that a doctor who publishes beliefs unacceptable to the medical establishment (such as opposition to routine vaccination) can be sanctioned for the expression of such beliefs, even if they do not act on them.
Edit: though I doubt if expression of such beliefs in tribunal evidence counts as publication, and may be privileged. I doubt if that has been tested.

DU harassed SP, he knew his presence in the CR upset her, and deliberately kept going in there when he knew she was there (because he kept notes about her movements) even though he had alternatives. He did it by virtue of NHS giving him permission to and probably expects their culpability is his ‘get out of jail free card’. But he knew.

No that’s not how NC has framed the claims. Look at my summary (early post on thread #17 maybe?)

the spurious details and professional conduct complaints are the victimisation part.

The harassment part is being male in the ladies CR - read the pre hearing case management document which talks about this being the “stark” consideration posed by this case

They don't need to consider whether DU's belief is protected to determine whether he had a right to be in the changing room. His belief cannot give him that right, even if it is a protected belief. All the protected belief would give him is the right not to be discriminated against. The comparator would be a man who does not have that belief. They are not allowed in the female changing room even if they want to be there, so excluding him from the changing room is not discrimination against him on the basis of his belief.

He may be able to argue that refusing to allow him in the female changing room is discrimination on the basis of his gender identity, but that wouldn't raise any question regarding his beliefs.

Even if he does have the right to be in the changing room, his presence there when SP is getting changed could still be harassment.

I'm not saying that the tribunal won't rule on whether his belief is protected, but I don't think there is any need for them to do so to resolve this case. If they do rule on it, I would expect them to rule that his beliefs are protected, but that doesn't mean that any manifestation of his beliefs is protected.

Someone up thread suggested that protected beliefs are the law's way of saying "you do you". That's pretty much right. You can believe almost anything you want and you can't, in general, be discriminated against for your beliefs, but that doesn't mean you are free to act on your beliefs.

In DU's case, he is free to believe he is a biological woman and all the other ludicrous things that he said in his testimony, and no employer can discriminate against him for holding those beliefs (assuming they are protected). However, that does not mean his employer has to allow him to use the female changing room or any other single sex facilities. It does not mean his employer has to allow him to carry out intimate examinations on women.

The NHS cannot give permission to their staff to harass one another. That’s one of the claims against them - but the claim against DU is that just by being male in the female CR was enough to create a “hostile” environment for SP = harassment

The harassment part is being male in the ladies CR - read the pre hearing case management document which talks about this being the “stark” consideration posed by this case

But isn't that NHS Fife's responsibility?

Isn't it reasonable for an employee to assume that their employer's policies are lawful, particularly if the employer is the NHS?

It's all a bit of a head melt.

He may be able to argue that refusing to allow him in the female changing room is discrimination on the basis of his gender identity, but that wouldn't raise any question regarding his beliefs.

I think this is exactly what DU is saying otherwise if it was just for safety/privacy from men they could have changed in the cupboard offered to SP.

As youve said before, without a GRC DU is legally and biologically male. Anyone else with those characteristics is not allowed in a female only space - so the only thing which led DU to be there was the belief of being a biological woman, which DU’s entitled to believe that. But I thought DU wanted to assert that this was a fact rather than a belief?

And in that there are complicating factors because DU’s belief/fact had resulted in other accommodations at work (pronouns, politeness from other staff in not addressing DU’s maleness etc). So having already been accommodated already elsewhere (without a GRC) on the basis that TWAW then the logical extension of that belief/fact is access to the CR? No one else expressed concern. Others agreed it was DU’s right. Etc etc

DU said they were a biological woman’s right to be there.

So surely DU’s belief must be examined so the can the panel decide if it’s a belief or a fact?

Am I even making sense?!

Expression of beliefs in tribunal evidence is definitely privileged in the legal sense, but that doesn't prevent the GMC from sanctioning a doctor for doing so. A doctor cannot be sanctioned for having a belief. They may be sanctioned for the expression of that belief.