NHS Fife tries to silence nurse - Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton - thread #24

[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
Thread 22: https://www.mumsnet.com/talk/womens_rights/5280174-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-22
Thread 23: https://www.mumsnet.com/talk/womens_rights/5285690-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-23

I think that would be tricky.

Dr Upton used the changing room without asking permission and then later got it sanctioned by Kate Searle. All the staff knew it was happening and stood by or said it was OK in the policy-that-doesn't-exist.

Dr Searle didn't follow any of the documented disciplinary processes when sending the email to the whole department about the hate incident which allegedly prejudiced the investigation/non-investigation. Of course we haven't heard any of her evidence so we don't know how this email came to be sent. It might have been dictated by IB or Carol Potter or someone else we no nothing of. Or KS might give evidence about how she was told by HR that this was procedure and she didn't know any better. We literally can't know until she is in the witness box.

But as it stands, it does seem like KS is potentially in the danger zone. And having to wait a few more weeks to hear the judge's decision on whether she is R3 must be awful. Especially if there is a chance that she will go under the bus as the person who compromised the whole thing. However ill judged her actions have been I wouldn't wish all this on my worst enemy.

What would you do in the same circumstances? Distance yourself and go all out with your own legal team? Or sign up to be represented by JR so that NHS Fife can't blame you without taking themselves down?

I'm quite sure NHS Fife (aka the board) will throw individuals under the bus. 100%.

And I'm not even a little bit sympathetic to any of the individuals in line for a bus chuck. Care factor zero.

I haven't seen the submissions from Sandie Peggie or NHS Fife, so this is little more than a guess based on knowledge of how these things work.

Starting with NHS Fife's applications...

Restricting disclosure

The basic principle is that you must disclose everything relevant even if it is harmful to your case. There has been a previous disclosure order, but they have failed to comply. Getting it restricted at this stage will be very difficult for them. They will have to convince the tribunal that the disclosures previously ordered are excessive and/or irrelevant. Given that there has already been an order on this subject, they have already had their chance to make these arguments. I would be surprised if they succeed to any significant extent.

Restricting public access and excluding Tribunal Tweets

Given the principle of open justice, I can't see them getting very far with this. I suppose the tribunal might agree to some restrictions given the problems there have been with the video feed, but I would be surprised if they succeed in excluding Tribunal Tweets. If they did, that would be very appealable in my view.

Looking at Sandie Peggie's applications...

Adding Kate Searle as a respondent

The difficulty with adding her at this stage is that it could cause significant delays. She may want her own defence rather than joining in with NHS Fife and Upton. If she does, she would need time to appoint a lawyer, and they would need time to get up to speed with the case. And they may want to cross examine some of the witnesses who have already given evidence, which would have to be allowed. So, although I may be wrong, my expectation is that Kate Searle will not be added, although it will still be open to Sandie Peggie to take action against her later.

Forensic examination of Upton's phone

On the little we know, this would seem to be the application with the best chance of success. Provided NC made a decent case as to why this was needed, I can see this being granted.

What do you think are the chances that Searle can avoid being called as a witness at all, on substantially the same grounds?

Sandie Peggie I hope you’re opening a bottle(or two) tonight!

The grounds on which she could avoid being a respondent don't apply to being a witness. She doesn't need a lawyer, nor would it give her any right to have previous witnesses cross examined by her lawyer. If either side calls her as a witness, she will have to give evidence.

I've had to come off the Internet for most of today as many threads and reels have been "but they are a biological woman if they're taking cross sex hormones".

One after another after another. Even some HR tiktokers I'd previously found helpful for womens and maternity issues were spouting some nonsense and spitting feathers.

I can only imagine what NHS Fife HR are currently doing.

What will happen if they don't submit it?

My betting is they asked for an urgent extension today.

Kate Searle has already been called as a witness and will have to appear.

the question is whether she will be added as a respondent

I disagree a little (though this might be semantics).

If you are not required by law to provide a single sex service, you have a choice. You can provide a single sex service, a single gender service or a unisex service. You don't have to worry about competing rights. You are free to do whatever you want (and those who use your services are free to go elsewhere if they don't like what you are doing).

What I think this judgement does goes more the other way. It clarifies that you can provide a single sex service based on biological sex if you want. So, for example, if you run a swimming pool with male and female changing rooms, you can bar trans women from the female changing room without worrying about being sued under the Equality Act. However, you don't have to bar trans women from the female changing room. If you want to say that your changing rooms are based on the user's declared gender, that is fine. That doesn't give anyone a case under the Equality Act since this simply allows you to provide single sex facilities. It does not require you to do so. You could provide a single unisex changing room if you wish (as Center Parcs do). Or you could not provide changing rooms at all (although you probably won't get anyone using your swimming pool if you go down that route).

However, if the law requires you to offer a single sex service (e.g. regulations requiring separate changing rooms and toilet facilities for employees), they must indeed be single sex, not single gender.

So, for example, we recently attended an event in a nightclub - during the daytime - weird. There we found 2 sets of toilets, “with cubicles” and “with urinals”. DH was very uncomfortable indeed when he picked the “wrong” door.

Does this ruling mean, as a private venue they can continue to do that, and we are free to taking our clubbing money elsewhere? Or must they provide single sex services, as these places used to do? Not sure we will be rushing back - but good to know.

Depends on the venue licence and building regulations. Unless either of them requires single sex facilities, the venue can continue to do that and you can take your money elsewhere.

Hi @prh47bridge

Agree with your analysis. Just one further point I’ve always thought about in this context. Re the amount of discretion available to service providers … I’ve copied and pasted below the comments I’ve just been making on the AIBU thread on medals for women beaten by TW in sport re whether there is an obligation to provide SS categories or not:

“They could just make everything open, yes.
However I take the view that a sports group that declined to invoke the single-sex exemption going forward would be vulnerable to a challenge of at least indirect if not direct sex discrimination, given that they are essentially condemning women to never ever winning and even exposing them to an increased risk of physical injury, to name but two potential detriments, by doing so.”

Surely an analagous argument could be made for any organisation eg leisure centres, companies etc subject to any kind of duty not to discriminate on the PC of sex whether it be the EA/PSED etc? We know that mixed sex is almost always more detrimental for
women, sometimes significantly (and tragically, but let’s leave emotions out) so. Detriment being obviously slightly different in each case based on facts eg re SA/rape stats in mixed sex changing rooms there is of course a much greater risk faced by bio female of forced pregnancy following rape, etc. And that’s before you even get into the impact on those protected by other PCs eg of religion/belief/race etc. There are surely only a small number of cases where failing to provide any female only provision at all would NOT be D or ID sex discrimination. And it would always have to be a situation where a woman could choose to walk away and go elsewhere without suffering detriment.

@ShockedandStunnedRepeatedly - Interesting point.

In sports, the approach taken by the IOC last year of allowing anyone with a passport saying they are female to compete in the women's boxing is indefensible. Re organisations, it becomes more complex. I'm not sure I would want to outlaw the approach Center Parcs take (unisex changing rooms with cubicles to get changed in), for example. But there may be an argument where the facilities provided are less safe for women, e.g. single gender changing rooms rather than single sex.

You can provide a single sex service, a single gender service or a unisex service.

There is no legal basis for providing a single gender service.

Single sex, fine. Mixed sex, fine (provided it doesn't disadvantage women).

Single gender (mixed sex but excluding some of one sex), not permitted. You could have a trans-only group - based on the specific needs of people with the protected characteristic of gender reassignment; but not one based on gender identity because that is not a protected characteristic.

This is a bit of a digression back to the case in hand

What is key for the NHS Fife case is the HSE legislation because they are Sandie's employers. The Workplace (Health, Safety, and Wellbeing) Regulations 1992 contain provision requiring separate male and female sanitary facilities unless there is a single lockable room.
https://www.legislation.gov.uk/uksi/1992/3004/regulation/20

The Supreme Court has made it clear that this means born male or female (not that Upton had a GRC anyway)

This is one of the - to my mind few, if really tested - cases where they might get away with not providing SS. It’s a private company, it’s labelled correctly and there isn’t even any kind of “essential service” type line of argument… but the devil is always in the detail.

I agree, and yes I think it’s very much case dependent in terms of the precise safety situation and so on, but I definitely think it is something that should be considered.

I'm afraid this is wrong.

There is no law that bans you from providing a single gender service. It is therefore permitted. The fact that gender identity is not a protected characteristic is irrelevant. Your argument is like saying you can't set up a club for red-headed people because being red-headed is not a protected characteristic. You absolutely can set up a club for red-headed people, and you can provide a service based on gender identity if you wish. There is nothing in the law that prevents you from doing so.

If I set up a group for people who identify as women and I don't allow men who identify as men to join wouldn't they have a claim for sex discrimination as I wouldn't be able to claim I was using single sex exemptions

It’s just that you couldn’t call it “for women” . You’d have to say “it’s for people with a feminine gender ID” or something …??? I think? But it would then have nothing to do with the Equality Act at all. Unless it was people with a feminine gender ID who were proposing to transition. Because then it would be protected by the PC of GR. But then I as a natal female could not demand to be part of it.

No, they wouldn't have a claim as that is not sex discrimination. You are not excluding them because they are men. You are excluding them because they don't identify as women.

Edited to add... You potentially have both men and women in your group (i.e. biological men and biological women). The fact you admit some men does not mean you have to admit all men, just as the fact you admit some women does not mean you have to admit all women.

@prh47bridge Legal feminist has an article about toilets, where she suggests that there is potential to issue proceedings where ss toilets are not provided, as a case of sex discrimination, age discrimination, or discrimination on the grounds of religion.

it needs testing.

You see what could protect that group would be the PC of gender reassignment, if it was about transitioning…