I think (but I’m not sure/certain as IANAL) the fact that Upton is a named respondent (I’d imagine the application to add his colleague who sent the inappropriate email would extend this to her as well, if granted) may extend ‘blame’ to him in his capacity as being the source of the allegations against SP. Usually, it’s about employers being vicariously liable for the actions of an employee where someone experiences discrimination and/or a detriment. But, I’m guessing being named alongside the employer who enabled the policy that was unlawful, leaves him exposed to being ‘blamed’ i.e. found liable in addition to the employer. I think a lot will depend on the next stage of the tribunal, how much disclosure has been complied with, what that shows, and whether there’s enough to either show Upton was genuine in his belief that what SP did was a detriment to him, with the impact on his mental health evidenced (so along the lines of he may well have been wrong, or mistaken, but his reactions/responses were not bad faith/intentionally reactive to cause a detriment). So, he might well be the starting point of the victimisation/harassment/discrimination towards SP, but he was not ultimately responsible for the outcomes/detriments SP suffered. Or, the disclosure shows the deliberate intent to cause SP maximum detriments (from discussions with the BMA, and/or anyone else who he discussed how to respond to the NHS investigation etc.) in response to her challenging him/his presence in the female changing room. What that means for him, and whatever judgement that the tribunal make (for financial compensation) I don’t know.
I know from my own work where you have parties jointly & severally liable for money owed, you weigh up where you’re most likely to get a guarantee of securing the money. Where there is more than one party involved deemed liable, you look at their financial position & take steps against everyone but you’ll likely pursue the one who has the means to repay. And that’s not just about having money in the bank. It’s assets as well. So I wouldn’t say Upton, if deemed liable too, is able to escape action to pursue financial compensation if he doesn’t have personal/professional insurance that covers any court award against him. It’ll be down to what advice SP’s solicitors give her in terms of likely prospects of success in securing the full amount that may be awarded, if she succeeds in her case & gets compensation awarded as well.
I think as the umpteen threads on this case alone shows, we could speculate all day long about how this might end & who will ultimately pay the price. NHS Fife I think are far more likely to be in the frame for ‘blame’ as they had a choice on how to deal with the situation & they have the power to have the significant impact on SP, or deal with the whole thing in a different way that doesn’t result in the detriments SP has suffered. But, depending on what the next stage shows from disclosure & how that affects Upton’s evidence given so far, I don’t think Upton can feel secure at this point in escaping significant consequences of the judgement goes heavily against him.
But, who knows 🤷🏻♀️ I’ve never been involved in an employment tribunal & haven’t got a clue to what extent Upton is exposed to having to at least contribute towards any compensation order that might be made in SP’a favour. Here’s hoping all our questions will be answered come July!