NHS Fife tries to silence nurse - Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton - thread #26

[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 doubtful whether pubilc access for remote viewing would be reinstated but recent developments (as of mid May) suggest that this might actually become available again.

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
Thread 24: https://www.mumsnet.com/talk/womens_rights/5301295-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-24
Thread 25: https://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

@KnottyAuty following your post, If the Tribunal considers the Fife policy unlawful and finds that it's not fair to permit males in female changing rooms - Sandie wins the case?
If they agree with Fife's policy and think it's fair men use the women's (if they say they're women) - Sandie loses?

Don't conflate sex & gender. During the exchange with Upton it was only his sex that was relevant. He is & always will be a male so should not have been in a female single sex space. Sandie didn't mock his innerly womanly feelz & repeatedly say what a load of old bollocks gender identity is. She objected to him being in the changing room because he is male not because he identifies as "trans". His protected characteristic of gender reassignment didn't need to be considered.

@PrettyDamnCosmic - I don't think any point I made depends on Upton's protected characteristic of gender reassigment. I certainly didn't mention it. Sandie Peggie talked to him "related to the relevant protected characteristic" of his sex - that he is male and not female. This can constitute harassment regardless of whether what she said is true or false, as long as the ET finds it was reasonable under the circumstances for him to have found what she said intimidating, degrading etc. As you say - no need to bring gender reassignment into it, and I didn't.

You might be thinking that it's a defence against harassment to have spoken "the truth" - like it's a defence against libel if what you say is true. As was found in Forstater, you can absolutely harass someone by truthfully and accurately misgendering (mis-sexing) someone. Whether it was harassment depends on circumstance.

@Enough4me - you didn't ask me, but she could win on some aspects of her claim and lose on others. Statistically speaking, a win on all counts is probably unlikely.

MyAmpleSheep did you follow the tribunal in real time? Lots of us on here did, and the news reports really didn’t reflect the batshittery of some of the cross-examination of Upton.

I cannot see any circumstance where stating Upton is male & should leave the female changing room could constitute harassment.

Yes - I followed most of it live on here, and via Tribunal Tweets. I think there's a public interest in allowing people to give evidence in court about their court case without drawing conclusions too widely about their state of mind. The punishment for a respondent lying under oath is for the court to disbelieve their evidence and to the extent that the evidence is material to lose their case. They don't get punished for it beyond that.

If the judges, who were obviously watching it in realtime, felt this too do you think they could choose to find him an unreliable witness and therefore choose not to believe his version of events?

When you write that, do you do so having looked at the definition of harassment in the EA 2010 (section 26) and can you say confidently which part of that definition is the one that fails to apply? I'm not saying you're 100% wrong but you have to justify your position in direct reference to the actual law that applies, which may not necessarily match a more general understanding of what's harassment and what isn't.

Absolutely. Deciding who to believe and what "actually" happened is the first duty of this court. If one side thinks the court got the law wrong in the judgement then an appeal can be made. But it's almost impossible to overturn a finding of fact by the court of first instance. So the question of witness credibility is of primary importance. Of course they can find that they believe some parts of his evidence, and not others.

There are multiple claims so it’s not that simple! Some are against Fife and some against DU. There also wasn’t a “policy” document which allowed DU access. From what I saw Sandie has proved some of her claims and there’s more evidence to be heard. It will depend on that and closing arguments

I think at one stage Naomi Cunningham asked Dr Upton if there were any way in which Sandie Peggie could have expressed her views that he would not have found offensive, and he admitted that there probably weren’t any.

As is taking notes about her whereabouts, which he intended to use

Which he hasn't yet produced, so may or may not still exist, or have ever existed at all.

How much of a dent in the £2.5K would a trip on a North sea ferry requiring a new phone be?

He stated he had taken notes on his phone in his statement and on the witness stand.

He noted her behaviour of avoiding in the changing rooms at the same time as him.

The suggestion that she could be deemed as harassing him by confronting him in a place he could not lawfully be, ie a women only space is nonsense.

I might actually die of shock if DrU's phone appears

I wrestled with these same arguments in my mind at the time of Part 1. I think it’s possible that Sandies team won’t prove all parts of her claim - the big one was proving if Upton’s presence in the CR was harassment? In February I really worried this would be difficult to prove - but post SC I think it’s much clearer that a single sex space marked as “female only” on the door should not contain nuts

The definition of harassment in section 26 is with regard to a PC. Upton’s PC of GR is irrelevant. He was a male in a female single sex space. Pointing out he was male & shouldn’t be there was not harassment.

If anything happens to the phone or anything has been deleted it’s probably game over for Upton. The tribunal will have to assume the worst possible evidence has been disposed of…. Upton was warned at part 1 not to do anything silly

Agreed if common sense is applied. However NHS policies across the board say that “transphobic abuse” will not be tolerated. That means referring to sex rather than desired gender in many cases….

I agree with you that Upton's PC of GR is irrelevant. That's why I didn't mention it, and as far as I can tell, nor did Sandie Peggie. But Upton's sex is also a PC, and speaking to him about it, which she did do, could also be harassment.

Pointing out he was male & shouldn’t be there was not harassment.

That's a question the tribunal will have to decide.

I think the question of whether Upton's presence in the CR constitutes harassment is a slam dunk yes for Sandie Peggie. It ticks all the boxes - it was conduct related to the relevant PC of sex, it violated her dignity for him to be there, and it was entirely reasonable for his conduct (being there) to have had that effect on her.

The open question to me is whether the tribunal will find she harassed him right back by challenging him. Hopefully not.

The open question to me is whether the tribunal will find she harassed him right back by challenging him. Hopefully not.

If the tribunal agrees, following the SC decision, that he should not have been in the changing room will the tribunal take into account that Sandie’s employer left her no other avenue open to challenge this? She had already raised it with her manager, who had taken it higher. She was challenging him directly as she believed it was unlawful for Dr Upton to be there. Which we now know is correct

The EA 2010 says in deciding about harassment the court must take into account "(b)the other circumstances of the case" in deciding if the complained-of conduct had the effect necessary to count as harassment. I feel that Sandie Peggie having raised the issue with the trust will count in her favour - at least it should.

We're looking at a spectrum of possibilities: if she had on the first occasion launched into Upton with a faceful of blatantly offensive anti-Trans invective ("you're a freak, you're a pervert, you're disgusting, you deserve to die") - stomach churning stuff that nobody here would support and everyone would agree is terrible even under those circumstances I feel that would be harassment. If she said politely "I think you're a man, I find your presence here violates my dignity, please leave" then that's easier to find is not harassment. These are questions of fact about what happened, and for the ET to decide on.

This is very interesting. Even though it doesn't say so explicitly I read this as that they were starting to look into whether regulators were fully considering other people's rights when they were dealing with issues relating to trans people. I wonder what has happened since, because this was 2021. Probably nothing, but there needs to be a top down push to force regulators to force the medical profession to uphold rights based on sex where needed.

It's a lot to follow, but in theory, if Upton's phone isn't handed in, then the worst will likely be assumed about him?
If it is handed in, it's not likely to go against Sandie as what evidence would be on there proving harassment as all she did was say she was uncomfortable with a man in the women's facilities?
I'm struggling to see why Fife are pursuing the case!?

IANAL, but...
If a space is designated for women it is not unlawful discrimination (which includes harassment) to exclude men. A man with the PC of GR is a man, therefore anyone lawfully using the space can ask him to leave, I would have thought, without that amounting to harassment. Indeed, it would be ridiculous if women weren't allowed to ask him to leave since he's not entitled to be there. His identity is irrelevant.
Also, his presence in a female-only space is sexual harassment, regardless of his personal opinion as to his maleness.
Whatever the NHS Fife policy says, it can't override the law.

By analogy - if the sign on the door says "Staff only" any member of staff can stop you going in.