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

Thank you! I’ve also emailed

I haven't been following this too closely since the tribunal was adjourned in February so I'm not up to speed, but can anyone suggest why NHS Fife haven't either simply surrended or reached a settlement? (I suppose Nurse Peggie might have refused to settle?)

After the Supreme Court decision in April I don't understand how NHS Fife think they can get away with suspending someone for complaining about a biological man being permitted to use what was a female staff changing room.

AIUI health and safety at work legislation requires separate changing facilities for male and female staff. Full stop. Is NHS Fife going to suggest that in that legislation male and female refers to something other than biological sex?

NHS Fife can offer to settle but it would need to be accepted by Sandie Peggie. If she didn't agree then the case would continue. NHS Fife could decline to be involved but this would most likely mean an even more decisive result in favour of Sandie Peggie.

NHS Fife's problem with settling is that they'd have to offer a full and sincere apology, and commit to doing things right in the future. I think they'd rather continue and shame themselves in the proceedings rather than admitting how badly they got this wrong and being seen to turn their back on genderism.

@Manxexile
Absolutely my guess, NHS Fife would probably want this settled outside the court so it can be forgotten about.

This is a very important case for women, both NHS Staff, and Patients remember Mr Upton was prepared to ignore womens requests for same sex care.
Plus the wider implications that the case law will bring.

Sandies backer has probably chosen to back her because of the wider implications. It wouldn't surprise me if part of the condition of having that backer is Sandie must see the case to the end, ie not settle out of court.

Plus there is misconduct stuff against Sandie that she'll want cleared too.

Upton would have to settle too, as would any potential third respondent whom the court allowed to be joined, although NHS Fife might try to separate themselves from him (and anyone else) if they want a quick out and he wants to press on.

There are consequences to Sandie Peggie to refusing an offer to settle (if this is like a regular civil action). If she wins and the court awards her less money than the offer that she refused, she may have to pay (I think) all of FIfe's costs incurred after the point at which they offered to settle, as well as her own.

So holding out for a clear victory and an apology can be very expensive. Of course if you have a wealthy benefactor who is also more interested in vindication than money that may not matter.

I really hope Sandie and her backer are prepared to see this through all the way. To vindicate Sandie and for real change - for men not to be permitted in women's facilities and not permitted to pretend to be female HC professionals when female care is requested.

It's a first level tribunal, so whatever the findings they don't set anything other than a moral precedent. Nevertheless even that would be great.

Now, if she loses at first instance, and appeals - then, a victory on appeal would have legal significance, like in Forstater.

I just can't see her loosing, especially not with the SC clarification.

I'm not sure we need this one to set a precedent - not post SC - just to make an example.

Oh I think we do, so many government departments are dragging their heels, inc NHS 'Waiting on guidance' the interm guidelines aren't good enough.

Oh I think we do, so many government departments are dragging their heels, inc NHS 'Waiting on guidance' the interm guidelines aren't good enough.

My recollection is that they claimed the "official" female changing room was in the basement, satisfying their legal obligations, and this "inclusive" changing room was an extra.

Any response yet?

No. I will update.

The Edinburgh tribunal office have replied to say they will publish information on how to request to watch soon and not to apply until they do that

If an "inclusive" changing area is closer to the workplace that could still be illegal discrimination. Also the Judge did ask if it said women on the door and was told it did. I thought at the time that was a significant question, hence I remember it.

@atoo This is the justification claimed now by my employer. That they can say use the appropriate facilities and that's enough because most buildings have a gender neutral toilet. Completely ignoring that the TRAs have been clear that they will not use gender neutral spaces as they are 'outing'

That's not a matter of legal precedent - the law is clear. It's a matter of making them follow the law (which a few hefty fines will help).

The steps that I think will be required will be disclosure of relevant documents by the sued NHS entities, the identification of the key decision-makers, and their inclusion as a party into the proceedings on the basis that they were knowingly acting against the law. With a bonus of pressure being applied to the NHS that they are not to pick up the tab for their legal bills because they were acting in a way that was against the terms of their employment and to the detriment of their employer.

You can't convince me that phone didn't go on a one way ferry trip sometime in February.

I have now seen the 18th March judgement.

The tribunal did not order forensic inspection of the phone on two grounds:

• They don't think they have the necessary power
• The respondents (Fife and Upton) have agreed to the forensic inspection anyway (although the arrangements for the inspection were still being worked out between the parties), so there is no need for such an order

From the second point, it is clear that the tribunal's refusal to order forensic inspection is irrelevant. Upton's phone will be subjected to forensic inspection (indeed, it probably already has been) and we will find out what Upton's notes said and when he wrote them if SP's legal team consider it relevant.

Fife's application to change the case management order to restrict the disclosures they have to make was refused.

KS is not being added as a respondent. However, an email she sent to her colleagues is being added as an additional detriment.

SP also applied for an "unless" order. We don't have the detail of the order applied for, but it would have given a deadline for Fife to complete certain steps (presumably around disclosure) and imposed sanctions if they failed to do so. This application was refused.

My reaction...

Given that Upton and Fife had agreed to forensic examination of Upton's phone, it is not surprising that the tribunal did not order this. Even if they had the powers (which is debatable), the courts generally won't make orders unless they are needed. In this situation, it is clear that no order was required.

I am not surprised that Fife's application to restrict disclosure failed. That was always optimistic, and their failures to date won't have helped them.

Asking to add KS as respondent halfway through the trial was always a stretch. I am not surprised this was refused, but it is absolutely right that the email has been added as a specific detriment.

Reading the judgement, it seems the "unless" order was refused in large part because it is based on SP's lawyers saying that some documents should exist or are anticipated to exist, but there is no proof that they actually do exist. It is therefore not clear that Fife could comply with such the order requested. However, the Tribunal has used the opportunity to deliver another lecture to Fife on the requirement for full and timely disclosure.

Given that it appears to still have been available in mid-March and the respondents (NHS Fife and Upton) had agreed to a forensic examination, this seems unlikely. If it does disappear before it can be examined, the tribunal will be entitled to draw negative inferences from this.

an email she sent to her colleagues is being added as an additional detriment.

Is a detriment like a 'black mark', something the judge would take a dim of view of or something else?

A detriment is an action taken that puts an employee at a disadvantage or causes harm inthe workplace. As KS hasn't been added as a respondent, I believe this means that KS can't be made personally liable for any damages awarded if detriment is found on this point, but it could increase any award that Fife, as the employer, has to pay.

KS will 'pay' by having her email, and witness testimony published in the press in the fortnight before she has to run the induction for the next August cohort of doctors on the annual 'fellowship' rotation that she leads for the Trust.

A detriment is a way in which your employer has treated you unfairly because you used one of your protected employment rights. Adding this to the list does not mean the tribunal is saying this is a detriment. That would not be appropriate for a case management order such as this. The tribunal is simply allowing SP to add it to the list of ways in which she says Fife have treated her unfairly.