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

What seems to be urgently necessary is a law stating that when a patient asks for a medical attendant of the same sex as themselves they should be taken to mean biological sex unless otherwise stated.

If a patient asks for a medical attendant of the same sex as themselves that should always be taken to mean biological sex. No patient is going to say "I would like to see either a female doctor or a male doctor who thinks he is a biological woman"

If they can argue that their approach is a proportionate means to achieve a legitimate aim, they don't need to rely on having a shared protected characteristic. Indeed, we know they cannot rely on that.

Whilst I would like to see WI return to being biological women only, I would point out that, if WI cannot legally admit trans women, it becomes impossible legally for anyone to run an organisation for women and trans women with 25 or more members. I agree with excluding trans women from spaces that should be women only, and from women only organisations where the members don't want them. But trying to say that you cannot legally have an organisation for women and trans women even if all the women are happy with that feels like overreach.

Not if it is defined in a way that excludes trans men and non-binary persons, but it makes no difference. Regardless of whether it is all women or most women, a policy that allows some men to join is not direct discrimination, but it may be indirect discrimination.

"If a patient asks for a medical attendant of the same sex as themselves that should always be taken to mean biological sex. No patient is going to say "I would like to see either a female doctor or a male doctor who thinks he is a biological woman"

I agree, but clearly not everyone, including some doctors and carers, does agree. It needs to be the law.

Wtf!

It’s already the law. Doctors need to obtain informed consent before undertaking any physical examination. Hiding the fact that you are a man & telling the patient that you are a woman would negate any consent. If there is no consent then an examination is assault or sexual assault depending on the actions of the faux female doctor.

There is a relevant section in the SC ruling.

In the Outer House, Lady Haldane concluded (at para 53) that section 9(2) of the Victims and Witnesses (Scotland) Act 2014 (as amended by the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021) can only properly (or fairly) be read to mean biological sex when it uses the term “sex”. This is because the purpose of the amendment (introduced by the 2021 Act) was to ensure that section 9(2) of the 2014 Act read as follows: “Before a medical examination of the person is carried out by a registered medical practitioner, the person must be given an opportunity to request that any such medical examination be carried out by a registered medical practitioner of a sex specified by the person”. We agree with her analysis: sex as used in this provision must mean biological sex notwithstanding that there is no reference to biological sex in this provision. The clear statutory intention is to respect the right of a female or male victim of a sexual crime to request same sex care should she or he so wish because it has always been, and still is, well recognised that reasonable objection can be taken to an intimate medical examination by a member of the opposite biological sex. References to sex could only be references to biological sex in context.

This refers to the situation where you have a legal right to request someone of a particular biological sex after being assaulted. Consent during other procedures being a separate but related issue.

The more pressing issue imho is not just the legal situation but processes - i.e. when you make a medical appointment for particular sex it's usually with a secretary etc. and they have a list of i.e. Dr. Upton (F). You then just go to that appointment with the doctor, possibly also alone and as NC so very well pointed out you may not realise until half dressed and part way through the procedure.

The last I heard Dr. Upton was working in psychiatry and patients can request a clinician of a particular sex especially if they have a history of sexual trauma. Consent applies to all medical appointments and examinations not just physical ones.

If we want the GMC (and probably other health professional regulators) to publish the biological sex of their registrants then the law (possibly only secondary legislation) needs to be changed to entitle them to obtain this information.

Full admission of liability and public apology ahoy then?

Continuation thread:

www.mumsnet.com/talk/womens_rights/5318518-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-25

However, if I might ask, could discussion remain on this thread until it's full and then move over to the new thread after that. Thanks!

There was never a realistic defence.
Independently of the SC ruling, providers can lawfully exclude all males from single sex spaces where women's rights to privacy, dignity and safety are engaged. Prime example - changing rooms and toilets. Choosing not to do so is discriminatory especially to women because they are impacted worse than men. (It's also an infringement of men's rights to privacy dignity and safety.) So nothing has changed there.

The Workplace Regulations 1992 mandate sex-separated provision - and even if NHS Fife had claimed that Dr Upton was a woman for the purposes of that legislation, he doesn't have a GRC and it is settled law (even before the ruling) that self-ID is unlawful.

They (and Dr Upton) never had a leg to stand on.

The importance of the judgement is that it shuts down a line of argument, however unlikely it would be to succeed, in areas not governed by equality law. Police searches aren't covered by the EA, but British Transport Police have abandoned (for the time being) their policy of allowing "same gender" searches by MCW with a GRC in the light of this judgement. A challenge to the legality of this policy had been brought by Sex Matters and the hearing had been delayed pending the outcome of the FWS case. BTP recognised that the argument for the lawfulness of "same gender" searches was lost.

And presumably Dr Upton has no defence for being there whatever his employer said as ignorance of the law is not a defence

Precisely. Plus Dr U initially used the female changing room without even checking with the employer. So definitely can't say it was all their fault. Will be interesting to see who does get the blame instead.

What about the BMA involvement? Also the serious accusation of putting a patient at risk?

As soon as it came to light that he had taken it upon himself to enter the ladies HE should have been told he was in the wrong under the law and some other provision made. NHS Fife is 100% responsible regarding the changing room issue and for them ignorance of the law is indeed no defence. Upton himself was under no obligation to understand that legislation AFAIK.

The other issues are a different matter. Upton and management appear to have been acting in concert against SP and that in itself raises serious questions - I‘m very interested in how that’s dealt with. It’s shocking.

That‘s re @guinnessguzzler ‘s comment.

Surely the NHS Fife have to settle now?

NHS Fife have spent around £200,000 on this so far according to the article!! On top of legal fees there will be staff time etc. It’s time for the NHS to get back to being patient focused. This case just shows that the hospitals that Carol Potter et al run are like mini fiefdoms wasting public money.

An absolute disgrace. Plus whatever salaries they were paying their HR and diversity people. Incompetence personified. It’s embarrassing.

I think this is why a settlement is difficult as it appears Fife did not thoroughly investigate the allegations.

I have never thought that there was a realistic prospect of NHS Fife winning this case, although I did worry that Sandie Peggie may need to go to appeal to get justice.

I did think it might have been different if Upton had a GRC (which he didn't). I was wrong on that. The Supreme Court's judgement makes it clear that a GRC would have made no difference to this case. But, even before the Supreme Court judgement, I was confident that Nurse Peggie would ultimately win. I am now a lot more confident that, even if NHS Fife decide to fight on, she should not have to go to appeal to win.

I agree, as retired HR Fife not following their own suspension, investigation processes was a big no no at ET.

So what was NHS Fife’s legal defence? It seems as if there is no legal justification at all for allowing Dr U in the female changing room.

That £200,000 admitted to reminds me of men who cheat and say 'it was only the once'. It'll be far more than that if you add in staff time, including eg the central legal team set to trawling through tweets for 'inaccuracies'. See also the fact that they have agreed to pay a KC and legal team for another fortnight+ in the summer (unless they fold).

They haven’t put forward their defence yet, this will be the hearing in July.