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

Yes, you're right - the GRA made clear that getting full GRS was not a necessary condition for getting a GRC. But some on the TRA side are arguing that Croft means that getting full GRS in itself meant that a MCW should be treated as a woman for privacy and dignity reasons in order not to discriminate unlawfully.

Reluctantly, I'm not sure I fully agree unfortunately.

The tide is definitely turning law-wise, but look at how we thought the Supreme Court ruling brought clarity that would be (albeit very grudgingly) accepted, and it just hasn't been. What should logically happen, with people accepting the legal position, isn't by many people who hold positions of authority. They think it's immoral, and therefore that it should be ignored, or that it's legally flawed, and so should be ignored.

This is an issue where emotion and emotional blackmail and "you're a terrible person if you even raise your legal rights regarding toilets" is very loud.

Every GC legal case will help change things, but it's hard to get people to accept something if they really refuse to and think they're right and have the moral high ground. And the sad fact is that not everyone who is adversely affected by that in practice is going to be able to, or want to, go to HR or bring a legal challenge. The cost - financial, time, relationships - is very high.

😱Mermaids didn't do an enhanced DBS check for Breslow?

I didn't know that, surely that is not legal?

I thought if you worked with children it was an automatic enhanced check.

some on the TRA side are arguing that Croft means that getting full GRS in itself meant that a MCW should be treated as a woman

I'd consider going along with that. Provided 'full' really does mean full. Every chromosome, every cellular hormone receptor, the works. Molecular level reassignment.

There's still the life experience question, but we can talk about that once they've resolved the anatomy problem.

Not necessarily. It depends on the exact nature of the role. It is always good practice, but that is different from being a legal requirement. And the law requiring something does not mean that everyone will comply. After all, the law requires drivers to stay below the speed limit.

So well said. Thank you.

Arguing that rights should be dependent on GRS seems to go against the ECtHR and also open up a huge and irreconcilable chasm in the movement.

Also not clear how it would help Upton.

Fair enough. I have been stating that the tide isn’t turning since circa 2016. I embrace the day that I am wrong and hope that it is soon. And that democracy and civil rights exist and in recognisable forms when this happens.

This has made my day!

Should name change to HappyHappyTimes

I’m not able to follow all the details, but your description suggests that Fife will need to be treated as a service provider in one context, but not another? @theilltemperedmaggotintheheartofthelaw

I'd consider going along with that. Provided 'full' really does mean full. Every chromosome, every cellular hormone receptor, the works. Molecular level reassignment.

Ha! Science fiction... I wouldn't go along even then.

Self-contradiction and irreconcilable positions are in TA DNA, so... 😁

How easy is it to argue that the EA regs on service providers are irrelevant to a claim of harassment and victimisation, if the employer based their policy on the EA regs for service providers and agreed in court that they had no clue that other regulations existed?

I'm finding this very difficult to unravel! I assume the judge is skilled at adopting a step by step approach, but where to begin?

They are a service provider to patients, and an employer to staff. But the former aspect isn't relevant to this tribunal.

@FeedbackProvider @thoughtsonlondon @WandaSiri

The argument I've been suggesting does not rely on Upton having changed sex at all. It's based on a discretion to include certain males in a female space, which is not possible under EA Schedule 3 para 27, but is arguably possible under the WR. This does lead to debates, about employees and customers being treated differently, already cropping up here and there.

I'm not agreeing with it, just guessing what she'll come up with. Ironically, she might be limited in this sort of approach, by clients' insisting that Upton really is female!

"It's based on a discretion to include certain males in a female space, which is not possible under EA Schedule 3 para 27, but is arguably possible under the WR."

It sounds as though you may be alluding to regulation 24(2).

(2) Without prejudice to the generality of paragraph (1), the facilities mentioned in that paragraph shall not be suitable unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety and the facilities are easily accessible, of sufficient capacity and provided with seating.

[emphasis added]

So there must either be separate changing facilities for men and women or, if there is not, then it is permissible for the same facilities to be used at different times by men and women.

So, for example, if there were a notice that said something like "Men only from 7.30-8.00 and Women only from 8.00-8.30" then that likely will be lawful. (EDIT - although there may still be a case for indirect discrimination)

But that is not what was happening in Fife.

Ok. But echoing what Another2Cats said above...

If that's the provision you are referring to, it's categorically not a discretion to include certain males in female facilities.
And customers/patients etc don't even come into it - the facilities in question were for staff only.

The employer being unaware of the regulations requiring them to provide single sex changing rooms for staff is not a defence. Anything the EA says about service providers is irrelevant to this case. Fife employs SP and DU, so the workplace regulations apply.

I think it'll take further litigation and I think at least some of it will be linguistic.

As I understand it, as an employer, you HAVE to provide single-sex spaces if your business means that people have to change clothes etc.

As a service provider, you CAN provide single-sex spaces if you think that's the right thing to do. If you choose not to, you probably can't call them the ladies' or women's toilets/CRs - you'll have to find a different descriptor and people, especially women, will vote with their feet. But this whole area is so fraught with lunacy that I won't be at all surprised if it takes litigation to resolve the question of what you call your loos.

But is NHS Fife's negligent approach to interpreting even the wrong regulations contributory to the victimisation and harassment of SP?

Yes, it may take more legal action on the service providers front. But there have recently been first-instance judgements under the Equality Act about workplaces which say that employers who do not provide separate facilities for women at all, or do not provide equally good facilities for women as for men are discriminating unlawfully directly against the woman/women bringing the case and indirectly against women in general.

The judgements are not binding but to my (non-legal) mind, the logic is inescapable - if you have to provide separate and appropriate provision for women in a workplace, why should you not have to do so as a service provider - providing of course that you have the physical space? Unisex single-user facilities disadvantage women disproportionately for reasons of safety and dignity. (And both male and female people have a strong preference for separate facilities when polled on the subject.)
So I would hope for a strong steer from the EHRC that if you have space for a certain number of toilets, you have to make them mostly single sex rather than unisex.

One argument for less strict rules for service providers is because users are free to choose a different service provider if they wish: you can shop elsewhere or use a different gym if you don’t like the changing or toilet facilities, just as if you didn’t like the colour of the decor or the fit of the clothes. Employers hold more sway over their employees, and consequently have a higher level of duty towards them; it’s much more difficult to get a different job than shop elsewhere.

They have victimised and harassed her for complaining about a man in the women's changing rooms. Since the man had no right to be there, contrary to Fife's beliefs, that should result in her winning this case. It also helps SP that their initial "investigation" was a shambles that immediately jumped to a conclusion without bothering to actually investigate.

Nothing so complicated. It's purely based on the fact that the EA has no provisions relating to employer-maintained single-sex spaces, and the EHRC says that employers have a defence to liability under the EA if they can show that they were obeying another law (the WR, in this case) (citation needed). This throws everything back onto the 'true' meaning of the WR.

Because they are following the WR, employers providing sex-segregated facilities are thus immune to a charge of sex-discrimination under the EA and this immunity is not dependent on the SSEs of the EA, which gives them wriggle room.

Only a few years after the WR were passed, but pre-GRA, the CoA said that at some point a male person (Croft) should be considered 'transitioned enough' to gain access to women’s workplace facilities, even if he had not changed sex. This implies that the WR can be interpreted to include this scenario, and has not been superceded by more recent case law (?)

This is clearly not congruent with FWS. But it may be a mistake to think of FWS as embodying some basic principle. It may just have been inevitable because the legislation was botched and therefore unworkable. The TRA take on this could be that it needs fixing.

I think this is an important point but it cuts both ways. Service providers have no control over who uses their facilities, so by allowing in random unknown men, they are exposing female customers to unquantifiable hazard. An employer can in principle police which male employees are exceptionally allowed to use female facilities, and take action if it goes wrong. By burning the complaining witch.