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

The phone is apparently relevant to the claims about victimisation. It seems that Upton was able to get advice from the BMA during their 2023 Xmas closure. This suggests a much higher degree of organisation than an average person. Also access to more services than an average member. Or pre-meditation of seeking an argument at work regarding trans rights. None of that would look good if proven. It’s also related to when Upton’s decided to make the professional conduct claims against Sandie. We think that NC suspects there will be evidence that when the “hate incident” wasn’t enough to get her suspended (the risk being if she came back to work on different shifts the nurses would move together to block access to the CR) then and only then were the conduct issues raised. When they should have been raised immediately- not 3 months later after the harassment claim. And also that the phone may have evidence that Upton’s was advised not to use the conduct claim in combination with the harassment complaint. I think the suspicion is that Upton’s was very organised/premeditated and possibly vindictive in making sure that Sandie was excluded from work - special leave wasnt good enough, it seems she had to be kept out more permanently/made an example of. But we don’t know if the phone release has even been agreed…

Yes. They asked good questions about details in the changing room. Who stood where. Said what. Was wearing what clothes etc…. Their two accounts vary in terms of order of getting undressed. Sandies answers were specific, short and to the point. Upton’s weren’t as specific and when asked where were you at this time? Upton’s said “I suppose I was standing…”. Which made it sound like his account had been fabricated otherwise he’d have just said “I was standing…”. That and all the sophistry and obfuscation and lack of disclosure was a bad look…

It seemed like this narrative was being laid at the time of the Wall of Sad in the tribunal room.

I am dying to know if they will conclude that a woman objecting to a man in her space (politely or impolitely, TIM are affronted all the same) is harassment.

Will they proscribe HOW we can ask them to leave? Write us a script? Ban us from uttering a word?

If women can’t be granted that right, can management say identical words without it being ‘harassment’?

This will be some blinding sunlight.

I've been thinking this myself. If just asking him to leave is harassment then surely doing anything about it is, arguably, harassment. Waiting until he leaves, using another room, even asking a line manager, interpretive dance (which i think would incorporate lots of non-soft hand gestures), anything that means you've treated him as 'not a woman'. It puts noncompliant women in an impossible bind.

Perhaps we can carry a card with appropriate words we just hold up so we don't speak actual violence words', something like, "you are male this is the female facility, you need to leave".

That’s exactly the issue that Upton’s admitted to on the stand - that there was nothing that Sandie could say or do which would be acceptable, other than comply.

I thought he sealed his fate at that remark. So completely inflexible and unreasonable - a view which couldn’t be considered reasonable by the average person.

Even if Peggie hadn’t challenged Upton, and even if this case had never come to court, somebody at NHS Fife would still now need to explain the law to Dr Upton.

The only way to explain why he can’t use women’s single sex facilities is to refer to his sex.

If he refuses to acknowledge that he is male, it’s not clear how that is possible without causing him some upset.

But how otherwise do you enforce the law?

Upton’s described himself as a trans woman and discussed the implications of this with managers. So his maleness was never denied. If that was in question an employer can ask to see a birth certificate for reasonable purposes. If any male continues to use a female facility at work after being told not to then an employer can discipline them. And worst case fire them. In fact they have a duty to their female employees to do use the disciplinary system for this purpose (or risk tribunal claims from the women). So it’s going to be worked through a load more tribunal cases… probably women having to bring a lot more to force employers to follow the law. Depressing

Morse code? Semaphore? Aldis lamp?

If you follow this chain of thought it becomes beyond absurd very, very quickly…

I don't think it's absurd. Asking someone to leave in polite but firm language isn't the same as yelling a stream of degrading invective in their face. (For the avoidance of doubt, I'm definitely not suggesting that Sandie Peggie did that.) We should credit the tribunal with enough intelligence to know the difference between behaviour that can reasonably be described has harassment and behaviour that can't. That's very much the purpose of a tribunal, after all.

The fact that Upton said there was no way for her to make her point to him without him feeling harassed reflects badly only on him. The test for harassment includes an objective "reasonable" threshold, and also has to be viewed in light of all the circumstances.

Does anyone know when a legal decision is due on this case?

@FlakyCritic there are another two weeks of the tribunal to go in July and then a decision will take several months

Has any been any new information about how Fife have responded after the SC ruling? Is Upton still imposing himself on female spaces in the hospital?

As you can see from the two links below it's business as usual at NHS Fife

https://www.scottishdailyexpress.co.uk/news/politics/sandie-peggie-calls-humiliated-nhs-35219086?utm_source=linkCopy&utm_medium=social&utm_campaign=sharebar

https://www.scottishdailyexpress.co.uk/news/politics/scandal-hit-nhs-fife-fail-35278606?utm_source=linkCopy&utm_medium=social&utm_campaign=sharebar

Irrelevant. This is a court of.law. How an NHS policy may define harassment is nothing to do with it. Only the law matters.

Fife is not pursuing it. It cannot 'go against' Sandie.

People are forgetting,l what the case is.

Sandie Peggie brought the case. It is against NHS Fife and Upton, and possibly now also the email writer.

The questions are about Fife and Upton's conduct. Not Peggie's. She is not on trial.

But NHS Fife is using the defence that sandie is a bigot and did harass dr Upton and breached their trans policy so they did nothing wrong by suspending her etc.
As such the judge will have to decide whether she
1, harassed Dr Upton
2, if so was the suspension etc reasonable
3, whether Dr Uptons accusations of patient neglect are malicious or not.
So in a way it can go against her if the judge believes Dr Upton

Particularly when you then link it to many such men claiming 'but no one ever said they minded' as their reason to invade women's spaces.

As usual there is just no room for women to do anything but submit.

The question before the EHRC.

The law upsets some men.

It is not possible to enforce the law without upsetting some men.

The law is not exclusively and solely for those men, and in fact parts of it exist to protect others and their rights from being harmed by the desires of those men.

The obvious normal and sane solution is that those men are just going to have to learn to cope. But we don't appear to live in a particuarly sane time.

NHS Fife will also have to demonstrate that they followed their own policies on suspension, grievance/disciplinary investigation etc. As well as showing their policies were lawful - very hard to do following the SC ruling that sex = biological sex.

It would be very counterproductive to claim that challenging someone you believe to be in a space they shouldn't be in is harassment. Staff in the NHS absolutely SHOULD challenge someone they think is somewhere they shouldn't be - people have impersonated staff, assaulted patients & more commonly stolen high value medical equipment by not being challenged enough. That's why most places have at least some locked doors needing swipe card access - to keep patients & staff safe and reduce theft.

If policy and practice and the man involved actually means that a woman has no way of refusing consent or requesting her own needs be met without raising offense and action against her, then it would seem entirely arguable that the man is harassing both her and every other woman in that space simply by walking in there. And 'harassing' would be quite a mild term for it.

Here is a reminder of the claims Sandie has brought to tribunal against NHS Fife and Dr Upton:

SP (claimant) is the one who has brought the case to the Employment Tribunal (ET) – naming NHS Fife as Respondent 1 (R1) and Dr Upton as Respondent 2 (R2).

She claims against Dr U personally

• Harassment under EA for being a biological male in the female only CR
• Whistleblowing – her challenge to Dr U in the CR was a “protected disclosure” that led to “detriments” – Dr U punishing her via formal complaints of bullying and harassment etc.

She claims against NHS Fife:

• Harassment under the EA regarding “protected beliefs” – citing a list of 12 timeline events:
• The 3 encounters with Dr U in the CR between Aug & Dec 2023
• Being put on special leave from 30/12/23
• Being suspended on 4/1/24
• Beginning a disciplinary investigation based on Dr U’s complaint
• Continuing SP’s suspension on 2/2/24
• Sought to persuade SP to return to work not at Vic Hospital 7/3/24
• Refused to guarantee SP access to a female only CR 7/3/24
• Extending SP’s suspension pending agreement on shifts 7/3/24
• Requiring SP return to work on day shifts in order to be supervised (due to Dr U’s allegations on concern about patient care) 7/3/24
• Informing SP of an allegation and investigation about patient care 28/3/24
• Failing to progress the disciplinary investigation promptly
• Prohibiting SP from discussing these legal matters/issues at work.
• Harassment under EA as in 2a for letting Dr U use the female CR and permitting other staff to use a CR that aligns with their gender identity
• Victimisation (which I think is the indirect harassment bit?) similar to 3a but with 3 additional “detriments” including being informed of alleged bullying and unwanted behaviours to a colleague, as well as being asked to work day shifts in place of nights.
• Whistleblowing complaint with similar detriments as the victimisation claim in 3c

The NHS/Dr U team have responded to accept that the events listed in the claim happened but the don’t accept the claims of harassment and say that they only allow staff to use CRs based on their gender identity on a case-by-case basis (ie my words: not just any old Tom Dick or Harry can march into the ladies)

The NHS/Dr U allege it was SP who behaved inappropriately and that what she said was not a “protected disclosure” or a “protected act” so the subsequent events were not “detriments” to her (again my words – under the law she wouldn’t qualify for protection against victimisation or whistleblowing)

The NHS/Dr U confirmed that they would not rely on the “all reasonable steps” defence under the EA regarding Dr U’s conduct – saying this claim is vexatious and should not be pursued.

(Sorry the MN text editor has removed my original numbering so there will be some odd references which you can hopefully infer)

At the end of part 1 in February, Sandie's team submitted a request to add Dr Kate Searle as Respondent 3 (R3). We don't know if that was successful or what specific claims were to be made against R3 personally.

"they only allow staff to use CRs based on their gender identity on a case-by-case basis (ie my words: not just any old Tom Dick or Harry can march into the ladies)"

Do they, aye? They already let a massive, obvious man in on his say so. Are they saying they'd have said no if he had a beard? Really? Because I beg to doubt.