NHS Fife tries to silence nurse - Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton - thread #49

[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 resumed on 16 July and the last day of evidence was 29 July 2025. It will resume again over 1 to 2 September for closing submissions.

The hearing commenced with Sandie Peggie giving evidence. Dr Beth Upton gave evidence from Thursday 6 February to Wednesday 12 February 2025. Sandie Peggie returned to give more evidence on 29 July 2025.

Access to view the second part of the hearing remotely was obtainable by sending an email request to [email protected] by 5pm on Wednesday 9 July. Detailed instructions were provided here:

drive.google.com/file/d/16-9POEZ7yHWUr6EmbfquJZO18Gv78bSm/view

The hearing is being live tweeted by x.com/tribunaltweets and there's additional information here: tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr-005 and tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr-bd6. 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.ph/WSSjg.

An alternative to Twitter is to use Nitter: nitter.net/tribunaltweets or nitter.poast.org/tribunaltweets

Links to previous threads #1 to #40 can be found in this thread: mumsnet.com/talk/womens_rights/5379717-sandie-peggie-list-of-threads-covering-employment-tribunal-and-afterwards

Thread 41: mumsnet.com/talk/womens_rights/5379334-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-41 24 July 2025 to 25 July 2025
Thread 42: mumsnet.com/talk/womens_rights/5379820-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-42 25 July 2025 to 25 July 2025
Thread 43: mumsnet.com/talk/womens_rights/5379979-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-43 25 July 2025 to 27 July 2025
Thread 44: mumsnet.com/talk/womens_rights/5380196-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-44 25 July 2025 to 28 July 2025
Thread 45: mumsnet.com/talk/womens_rights/5381518-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-45 28 July 2025 to 28 July 2025
Thread 46: mumsnet.com/talk/womens_rights/5381640-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-46 28 July 2025 to 29 July 2025
Thread 47: mumsnet.com/talk/womens_rights/5382102-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-47 29 July 2025 to 29 July 2025
Thread 48: mumsnet.com/talk/womens_rights/5382317-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-48 29 July 2025 to 31 July 2025

Thanks for that. There is a link to the judgment here from the solicitors (pdf):

https://jrlevins.co.uk/wp-content/uploads/2025/08/K01CT207-judgment-1-8-25-handed-down.pdf

Yes I know. Thank you though, you are making important points.

It was just the rights are fragile bit, even though I do know that, it still took me by complete surprise to suddenly find over half the populations rights given away here, and against so many completely sensible objections from feminists and other groups who predicted the avalanche after seeing those first few pebbles go tumbling past.

I know various groups of people throughout history have either been denied rights or had their lawful rights removed from them.

I know that it's happening now in some countries.

I just never managed to draw the line between that and it happening in the UK, it was a massive blind spot for me.

In the pool federation judgment it's great to see the judge picking up the phrase “certificated sex” from the SC to describe the "sex" attained by the acquisition of a GRC. Especially when it's used in contrast to “biological sex”.

Exactly.

"If you tolerate this then your children will be next".

Both claimant and defendant's legal teams made additional submissions following the FWS outcome.

The EBPS judgement dealing with those is well worth a read. 🤭🤭

I think the tide is turning. Those digging in and trying to find ways round the FWS judgement are trying to resist the turning of the tide. They may be able to slow it down but, barring something major such as the government legislating to overturn FWS, they are fighting a losing battle.

Corbett/Bellinger = unambiguous AMAB are male.
Correctly "recorded" male at birth is what the HoL said in Bellinger. No DSDs involved, therefore no assigning.

W v W = Corbett test inapplicable to certain DSDs - decide sex on balance of factors including psychological.
I think this might be superseded by FWS which confirmed that sex = biological sex in law.

Croft = post-op male transsexual employee can use ladies' room (obiter).
Croft is superseded by FWS as far as the EA goes and going by the judges' reasoning it would not apply to the Workplace Regulations 1992 either. A "transsexual" has not changed sex and may not use opposite sex facilities.

Not that any of that would stop JR arguing her case!

Surely JR now has to stop arguing that the Supreme Court judgement was just about seats on boards!

The judgment references it through and uses it to unmuddy the waters JR tries to muddy.

they tried to win discrimination in grounds of gender reassignment but that didn’t stand and if they had claimed sex discrimination the judgment rehearsed all the arguments which asserted why that wouldn’t stand either.

Helped considerably by the clarity of FWS judgment and that lack of clarity re JR submission.

Great explainer thread with extracts:

https://x.com/legalfeminist/status/1951222983118221394?s=46&t=OcVj6Ek4vpx69DdiZCpI2g

Jane Russell K.C.
Motto
Numquam vincit

An alternative reading would be that the Judge wanted to get down every descriptor of sex that JR and her clients could come up with in order to find that the law doesn't apply to any of their alphabet sex (and provide a list in his judgement) and only applies to biological sex

I think she will argue that workplace CRs can relax the single-sex rule in special circumstances because a) WR don't say otherwise, and b) they don't have to be strictly single-sex to enjoy the derogation from the ban on sex-discrimination conferred by Schedule 3 (instead, she will rely on the general derogation from the requirements of the EA conferred by the fact that the employer is obeying another law).

Of course, she still needs to show this will be compatible with the aims of the WR - which if they get too bent out of shape could bring the EA back into play. This should be interesting given the commonality of purpose with service providers under Schedule 3, but I'm sure she's going to give it a good go! I can't wait.

😂😂

@2021x Oh well done. This is how this get changed, it usually starts with one email. 😍

Fantastic result.

I think she will argue that workplace CRs can relax the single-sex rule in special circumstances because a) WR don't say otherwise, and b) they don't have to be strictly single-sex to enjoy the derogation from the ban on sex-discrimination

Wouldn't she need to have a legal reason to say that? Something actually in the statutes, or case law I mean. The WR mandate separate provision for male and female employees if they need to change clothes or wash.

What are you referring to as schedule 3? I haven't found a schedule 3 in the WR and schedule 3 of the EA covers other matters entirely. But under the EA, single sex provision does have to be single sex.

Yes. If counsel is throwing spaghetti at the wall to see what sticks, it's in the judge's interest to be thorough, avoid any appearance of bias, and write down "respondent made ABCDEFGH arguments, and I will go through them one by one to show why they weren't persuasive".

Apparently the Earl Russell’s family does have an official motto, and it’s che sera sera.

Yes, really 😄

That seems a bit too laid back for Countess Russell's litigation style 😂

Allegedly, an ancestor identified as Doris Day

Or the judge is planning a 'stupid arguments I have heard' book.

@WandaSiri I was referring to para 27, which covers things like CRs in a department store in the explanatory notes.

I couldn't find the statutory basis for the general derogation from liability because 'following another law', but this is advice from EHRC.

Croft = post-op male transsexual employee can use ladies' room (obiter).

I thought that the decision was that Croft couldn't use female facilities because he wasn't post-op and therefore hadn't transitioned, but that this potential criteria was superseded by the GRA.

Dr Upton was neither post op nor in position of a GRC, so on either basis hadn't transitioned.

But CRs in a department store are for customers, no?

And if the "other law" is the WR, that won't work because by implication from FWS, sex is bio sex and additionally DrU has no GRC anyway so there is no basis at all for treating him as a woman. If the "other law" is the EA, ditto, but explicitly so, not by implication.

I don’t doubt Judge Kemp will read
the recent ruling in the English Pool case as the first to apply FWS to a judgment. He uses it throughout.