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

I realise that everyone here is working hard to give me my half century of threads. It's very kind of you but, honestly, you don't need to keep posting at this rate on my behalf.

It is quite the honour, but I'm not sure I deserve it.

Yes, clearly they can't have as strict an obligation as employers, hence taking space available into account, for example. But the principle of it being at least potentially discriminatory to women not to provide separate, equivalent facilities weights the argument on that side and against wholly or mainly unisex facilities. I would argue.

And once you are at the gym, you can't really go and change at another gym. Or if you live in a small town and there's only one swimming pool or shopping centre, you haven't actually got a realistic alternative.

An employer can in principle police which male employees are exceptionally allowed to use female facilities, and take action if it goes wrong.

How? Under what circumstances wouldn't this leave them open to a claim of discrimination against the male employees who aren't allowed to use the female facilities?

They would have an overriding defence, that they were following the WR. This defence is not available to service providers, whose single-sex facilities can only exist courtesy of Schedule 3 para 27 as an exception to the general rule on sex discrimination.

It's legislation by m c escher and Lewis Carroll.

@WandaSiri @MyAmpleSheep I strongly suspect that a big reason the duty to provide women-only & men-only toilets/CRs is in the Workplace Regs and not the EA is down to the aims of each of those statutes and how practical each went in terms of stipulations.

The full name of the Workplace Regs is Workplace (Health, Safety and Welfare) Regulations 1992 and so it's about health and safety. The Regs are very specific and practical. The section relating to washing facilities stipulates rules regarding ventilation and hot water etc, with the rule about separate facilities being provided for men and women being the last in a list. So they were going through what everyone needs from a health & safety and welfare perspective and put it all in.

With the EA, it's clauses are a lot more higher-level and wider in remit generally, not practical stipulations, as discrimination is usually context-based.

"They would have an overriding defence, that they were following the WR."

I don't think that would work. The reasoning that the SC used to get to their decision in FWS would also be applied in the same way with the WR.

That is, is section section 9(1) of the GRA disapplied by the action of section 9(3) in the case of the WR?

I would argue that the same reasoning that got the SC to the point of saying that section 9(1) was disapplied in the case of the EA, ie that otherwise it would be incoherent and impracticable, would also apply when a court had to decide the same issue with respect to the WR.

There is a duty not to discriminate on the basis of the PCs and exceptions as to when you can.
But it's already been established, separately from WR 1992 - though admittedly at the lowest level only - that failure to provide separate or equivalent facilities for women in the workplace is unlawful. The duty not to discriminate unlawfully is arguably the same in principle for employers and service providers, but it's more context-dependent for the latter.

We may be saying the same thing, or talking at cross-purposes. I'm going to leave it there but only because I have taken Nauticant's hint about not filling up the thread willy-nilly and so I will stay off this one unless there is a major development!

Thanks for the discussion, all.

I’ve read more legal judgements recently than I ever thought I would. I really enjoyed this one.

We can take a hint. 😉You've more than earned a rest after your stellar work over the past three weeks. 💐🌹

Off to bother some other thread wranglers...

Haven’t read the whole thread but saw people are discussing Health&Safety regs. A big bug bear of mine is that EHRC and others talk about ‘lockable’ toilets or ‘secured from the inside’.
This isn’t what people think it means.

It just means if you pushed the door it wouldn’t open. It does not mean you can’t get in from the outside. You are supposed to be able to get in from the outside easily in case someone needs help. That sometimes means a coin to flip the lock or a hinge mechanism.

In real life, unless someone is shouting loudly for help (mixed sex toilets are supposed to be completely private and sound resistant too) then what happens is that people collapse and it’s about body retrieval. People can be left for days depending on cleaning schedules etc.

Of course it also means this private, mixed sex design is ideal for criminal activities on another person. The victims overwhelmingly being women, boys and girls.

The only toilet design in building regulations that isn’t completely private and sound resistant can be single sex toilet cubicles. The ones that open out onto a common area may have to be fire doors though.

Single sex toilet cubicles with door gaps are more hygienic too. Ventilation and the ability to clean under doors and partitions means there are less airborne and surface pathogens. It means the occupant can assess who is in the immediate vicinity and make a judgement as to whether they are a threat.

The old British Standards discussed that gaps above and below the door were needed for ventilation, cleaning, supervision and the prevention of wilful misuse. And safety locks were required especially for elderly, children and disabled.

In single sex designs this was a 15cm gap from floor to door. That’s enough to see how many are in the cubicle, if anyone has collapsed or in danger, and enough to prevent a lot of ‘wilful misuse’.

It’s a reasonable adjustment to have gaps under public toilet doors for the safety of millions with epilepsy, diabetes, heart conditions, who’ve had strokes.
Single sex toilets are the only designs that can have door gaps - if there’s ambiguity, the design then becomes private.

Mixed sex private designs are more dangerous for everyone, but healthy men are the least disadvantaged.

It was only a joke 😁.

Honestly, just carry on posting as you fancy.

Phew 😁
(promise I won’t go on about toilets although I would have liked to know what the toilet design situation was in the Fife case)

The CoA judgement has been superseded by FWS. Whilst the Supreme Court was only deciding the meaning of sex in the Equality Act, they discussed changing rooms, toilets, etc. and were clear that, where they are required to be single sex, they should be single biological sex. Strictly, that discussion is obiter (i.e. in passing), but nonetheless the lower courts should follow the Supreme Court's lead.

About the toilets issue - those of us who are older will remember the old solid doors which you had to open by putting a penny (old) in the slot - hence, "spend a penny" for needing the toilet. Some time I think in the (late?) 60s they all disappeared to be free to use and have the door gaps at the bottom and top. I imagine that the legislation must have changed. No doubt H & S realised that these were safer. Now that knowledge appears to have been lost, and it will take a number of missed deaths for them to remember why they were done like that.

Following FWS, an employer who allows any male employee to use the female facilities is breaking the law. Actually, they were doing so before FWS, but FWS means that the law is absolutely clear. There is no getting round it.

I am pages and pages behind but this is fabulous news and yes it was RMW representing Haynes. And on topic with the last few pages he was absolutely using the wrong comparator in using females as the comparison rather than other males.

Can we have some contenders for quote of the case?

I'd like to nominate CE with "the sixth best option", Emma Moore with "we just think they're men" and NC for "No".

I'm going to take nauticant's hint and give up on this shortly, but...

This has nothing to do with the GRA. Let's say it's already been disapplied to the WR and, therefore, in the WR, references to men and women are references to birth sex. Even better, let's imagine the GRA has been repealed.

The employer must provide sex-segregated facilities. But Croft says he can let certain men (actual men, not 'legal females') use the women's facilities, and has not been overturned.

No-one can sue for a breach of the conditions governing the SSEs of the EA, because this isn't an SSE of the EA. It's solely governed by the WR. EHRC says he has a defence from any liability under the EA, because he is following a law other than the EA.

The only way to break that defence is by forcing a particular strict interpretation of the WR eg by showing that any other interpretation leads to discrimination so egregious it can't have been the intention of the legislature to excuse it.

That task has not yet been done.

I really liked Jim Borwick’s “I will be paid as you will”.

Unfortunately there are lots of fatalities in toilets it is just no one seems to be tallying them up. I have asked organisations but no one has got figures. think it’s because so many public toilets have been lost that most provision is now in supermarkets, shopping centres, pubs etc. It’s not in the interest of any business to advertise the fact someone has died on their premises. Nor will families want it in the papers.

Back in the day there was even proper supervision in toilets - many public toilets had attendants. Now the ‘supervision’ has to be strangers around you.

In Document T (2024) it does not specifically mention door gaps though this document is a version from BS6465. I have been told by the Health and Safety executive that the single sex designs (C and D) can have them. I investigated why their safety aspect, particularly for those with long term health conditions, was not emphasised in Document T and worked it all the way back to a consultation document which referenced an opinion article with this quote (which was unexpected): ‘A better solution, supported by many transactivists, and increasingly found in trendy nightclubs and restaurants, is to eliminate gender-segregated facilities entirely and treat the public restroom as one single open space with fully enclosed stalls’.

This design is what I keep coming across when people talk about ‘inclusive’ toilets. But they are not inclusive to women, to frail people, to children, to those with invisible disabilities whom are more likely to collapse, to people who want to use a single sex toilet for any reason such as religious reasons or from previous trauma.

From my data, it doesn’t matter how public the open space is before the fully enclosed stalls. The danger comes from the stall being fully enclosed.

Where does FWS refer to facilities provided by employers, as opposed to service-providers?

Yes that was excellent too

Janice Turner in the Times:
https://www.thetimes.com/article/6f3e203a-5dfb-470b-9872-833e2e52a75f?shareToken=9ac1251083ec679b07198259f524e327

Fully enclosed "lockable" cubicles should be a last resort, basically, is what I take from that.

@theilltemperedmaggotintheheartofthelaw I think you are giving more weight to Croft vs Royal Mail than may have been intended. The judgement includes the following: http://www2.bailii.org/ew/cases/EWCA/Civ/2003/1045.html

”However, I do not accept that a formerly male employee can, by presenting as female, necessarily and immediately assert the right to use female toilets. The status of transsexual does not automatically entitle the employee to be treated as a woman, with respect to toilet facilities. The right does not arise automatically but it is acquired by making progress in the procedure described by Lord Nicholls. The Tribunal has to make a judgment as to when the employee becomes a woman and entitled to the same facilities as other women though that judgment must have regard to the applicant's self-definition and cannot be determined by the views of other employees.”

So DrU would definitely not meet the criteria with his self ID. Shockingly the judgement stating being a post op transsexual is part of the process! (I think it is unethical)

So in my humble opinion I think parts of Croft vs Royal Mail may support SP.