NHS Fife tries to silence nurse - Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton - thread #52

[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 resumed 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 #50 can be found in this thread: mumsnet.com/talk/womens_rights/5379717-sandie-peggie-list-of-threads-covering-employment-tribunal-and-afterwards

Thread 51: https://www.mumsnet.com/talk/womens_rights/5402652-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-51 1 September 2025 to 2 September 2025

judge Question at this point is what we do with the remaining time

i've no sound

NC needs to take instructions as does JR

ETA 5 mins break

But what's not clear is how this is different to what she argued before.

Nobody's saying anything. NC taking instructions.

Is this a case of "he said, she said".

DU claims that SP harassed him (hence the objectionable way she manifested her beliefs), but SP disputes this and said she just tried to make him understand why women feel uncomfortable with males in their changing rooms.

There were no witnesses to the exchange. All the embellishments that were added by KS were based on what DU told her, not what she had seen or heard herself. And SP came across as the more credible witness, whereas the evidence with the phone tampering etc suggests that DU is manipulative and a liar

So for the court to accept that SP expressed her beliefs in an objectionable manner, they would have to accept DU's version of events over SPs. Or are they arguing that her views are objectionable because of SP calling him a weirdo etc and that this is indicative of her intolerance? And is this all a distraction from the fact that SP's legal counsel is arguing that it wasunlawful for DU to be using the changing room in the first place?

Did Adam Weston just walk out the room?

Looks like they've all gone to the corner for a conflab.

I think I just saw Mr Watson in the tribunal room.

This is all his fault, bundle him!!!! 😁

Previously they've said SP is a nasty racist meanie. Now JR has said that she's a nasty racist meanie and that means the equality act doesn't apply to her.

If any of Sandies' close friends or family are lurking, please tell Sandie that we love her and will be behind her all the way as long as it takes. Really hope they all go for a nice meal and manage to block this out for a little time later on xxx

And even if this defence has only just occurred to her, it's not clear why that would be (or how you can disentangle that from the facts of how the investigation was handled and its eventual outcome).

Damn i've been so busy that I'd forgotten all about this until an article appeared earlier in my newsfeed . I've only just managed to log in to the hearing and everyone's just got up and left 🙄 I have some serious catching up to do as I have no idea what's going on.

Has there been a single day of this tribunal that's run according to plan, without some 🎶 dum dum dum 🎵 moment caused by JRs side?

IANAL, but that seems like... bollocks?

But that’s on services, not employment so won’t actually help

These shenanigans would have been enough to bring to their knees any claimant who wasn't backed by, effectively, unlimited financial means.

For those interested in the Higgs case, Naomi lays out why it doesn’t apply in her Speaking Note: https://docs.google.com/document/u/0/d/1yyWHcApQ0NffSikZsLeY-YMoP_WOKN_M/mobilebasic

I’ve reproduced it here, but TL;DR is that even if SP did say her belief in an objectionable way, which she didn’t and which they haven’t argued, Fife would have to show that their response (suspension, different shifts etc), was proportionate, which it wasn’t.

Apologies for the crap numbering, that’s MN.

Higgs etc

1. R1 deals in its GoR with the complaint that its treatment of C was harassment related to her protected belief by way of a flat, unparticularised denial that it had engaged in unwanted conduct related to her belief. It now seeks to argue that its treatment of her is not properly analysed as related to her protected belief, or a manifestation of it, because it was a response to the objectionable manner in which she manifested her belief.

1. Adverse treatment in response to an employee’s manifestation of a protected belief is not to be treated as having been “because of” that belief if it constituted an objectively justifiable response to something objectionable in the way the belief was manifested, the burden being on the employer to show that its response was objectively justifiable. So to succeed in such a defence, R1 must satisfy the tribunal of the following:

1. the treatment complained of was in fact a response not to C’s manifestation of her belief, but to something about the manner of her manifestation to which it took exception;

1. the manner of C’s belief was in the relevant way(s) objectively objectionable (having in mind that, given the need to interpret the EqA consistently with the ECHR, there can be nothing objectionable about a manifestation of a belief, or free expression of that belief, that would not justify its limitation or restriction under articles 9(2) or 10(2) ECHR: see ¶82 of Eady J’s judgment cited with approval by Underhill LJ at ¶107);

1. its treatment was an objectively justifiable response to that objectionable manifestation.

1. A Bank Mellat analysis should be done at both stages (b) and (c).

1. Those questions must be considered against the background of an appreciation of the foundational nature of C’s article 9 and 10 rights: “the freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend”: ¶94 of Eady J’s judgment in the EAT, cited with approval by at ¶112 of Underhill J’s judgement.

1. Failure at any of these stages is sufficient to defeat R1’s “objectionable manifestation” argument. It fails at all three.

Reason for treatment

1. It is clear from the evidence (see C’s written closing at ¶¶171-175) that C was put on special leave not because of anything about the manner in which she spoke to Dr Upton, but simply because she had told him he should not be in the women’s changing room because he was a man. LC’s answer to AG on 26 April was conclusive of that [264]. If C was put on special leave because she manifested her protected belief, it follows from the respondents’ concession at ¶16 that that was the cause, too, of all the other matters of which she complains.

1. To similar effect, [T745:24-747:2] GM said that C’s alleged question about BU’s pronouns was the worst thing about the report of the Christmas Eve incident, but confirmed that even if C had just said “I don't think you should be here because you are a man and this is the women's changing room,” that alone would have been a serious matter of misconduct.

Objectively objectionable

1. Taking R’s factual contentions about the manner in which C manifested her protected belief at their highest, the complaint seems to be:

(i) C pointed out that Dr Upton was a man;
(ii) C asked Dr Upton what his chromosomes were;

(iii) later in the conversation, C referred to “that person in the prisons” knowing that she was referring to a convicted rapist.
(iv) C was “confrontational and aggressive” (but in a calm “almost rehearsed” manner and without raising her voice) in the manner in which she spoke to him, partly by reason of the fact that she repeatedly said that she felt intimidated by his presence there [T756].

(i) Language

1. The first of these cannot be objectionable manifestation: it is core to sex realist or gender critical belief that a man who says he is a woman is still in reality a man. It is because and only because Dr Upton is a man that C objected to his presence in the changing room. If she can’t speak that simple truth without it being condemned as an objectionable manifestation, she can’t in any meaningful way manifest her protected belief at all.

(ii) Chromosomes question

1. C’s evidence was clear that she did not ask Dr U what his chromosomes were: she didn’t need to, because she could tell that he was male just by looking at him.

1. But even if she had done, it would not have been an offensive question. Lottie Myles did not find a question about her chromosomes offensive. Compare the language used in Higgs: see ¶¶10 and 12. Underhill LJ’s doubt about whether the school was entitled to take objection to those posts is clear from ¶¶158-9, but he assumes it in the school’s favour before addressing the question whether the school’s response was proportionate.

1. C was faced with a man repeatedly insisting that he was a woman. Although she did not mention chromosomes, it would have been perfectly understandable, and not impolite, if she had.

(iii) Prisons comment

1. It’s common ground that C said “It’s just like that person in the prisons. C denies having known at the time that she was referring to the case of a convicted rapist in a women’s prison, and there’s no reason to doubt that denial. But again, even if she did know she was referring to a convicted rapist, this was towards the end of a conversation in which Dr Upton was repeatedly insisting that he was a woman.

1. Note the passage from Martin v Devonshires Solicitors [2011] ICR 352 quoted at ¶59 of Underhill LJ’s judgment.

(iv) Confrontational and aggressive

1. This on the evidence seemed to have no substance beyond the fact that C stuck to her guns (as BU did) and made her point in a matter of fact and direct manner, maintaining eye-contact [T217].

1. Even in the teeth of the evidence the tribunal were to find that there was anything at all confrontational or aggressive about C’s manner, see the same passage from Martin v Devonshires. An employee manifesting her protected belief is entitled not to be punished for doing so even if she was not in every respect a perfect model of restraint and patience when doing so; and especially so when the context for the manifestation is a complaint of a violation of her rights.

1. In all four cases, analysis of whether the manifestation was objectionable in the relevant sense has to be approached by way of the Bank Mellat four-step analysis. R1 has the burden of establishing objectionable manifestation, but has made no attempt to assist the tribunal with that analysis, simply saying at ¶43.6 “It is submitted that Mrs Peggie’s conduct was an inappropriate or objectionable manifestation of her belief.” That is not enough.

Treatment objectively justifiable?

1. But even if the respondents could accomplish what should be the fairly demanding task of satisfying the tribunal that it could justifiably take objection to the manner of C’s manifestation of her belief, it would still have to show that its response was proportionate.

1. Again, the burden is on R1: see Higgs ¶77. It should do that, too, by reference to the four-step test in Bank Mellat. As an inevitable consequence of its failure to plead objectionable manifestation, it has not, either, explained in its grounds of resistance what objective its treatment of C was intended to serve nor why that was sufficiently important to justify the limitation of a Convention right; how its treatment of C was rationally connected to that objective; whether a less intrusive measure could have been used; or how the balance between the importance of the objective and the limitation of C’s Convention rights favours its treatment of C.

1. In Higgs, Underhill LJ characterises the claimant’s Facebook posts as “a series of derogatory sneers” and (at least possibly) as “stupidly rhetorical exaggeration”, but has no difficulty in finding that dismissal was not “even arguably” a proportionate response: see ¶163. There is nothing in what C said, even taking the respondents’ case at its highest, that comes close to the level of “derogatory sneers” or “stupidly rhetorical hyperbole”.

End of Higgs etc section.

You have got a hill to climb that you can't even guess at yet.

Can someone explain if it is usual for the panel to redress flaws in one side's pleadings or am I misunderstanding TT's summary.

IANAL either and I fully agree. It was desperate flailing. Rights apply to everyone, even if they are not nice.

from Herald
1:53pm
Employment Judge Sandy Kemp has rejected a call from Ms Peggie's legal team to adjourn and decide the amendment application this afternoon.
He says there are a number of important points and it requires consideration of a number of other cases.
He says the panel will attempt to decide at the earliest point, but that may not be before their deliberation dates in October.

From TT (apols, I was researching Higgs)

Judge and Panel return.

We've decided not to rule on the application today, it's an important one. It has a number of important points: does Higgs needed to be plead, does it need an amendment, it requires consideration of a number of cases, it is not in our view in accordance with the overall objective of justice. Especially if it was held that the amendment was necessary but refused or grant it will change the position of the parties.

Either R or C can appeal. And in either case, and the outcome of the appeal and the disposal will be the purview of the EAT.

The application to decide today will not be granted. We will attempt to decide at the earliest point, but that may not be before our deliberation dates in October. The question now - it is 1:45 what do we do with the time left to us. Do we do questions or do we adjourn and do them in writing.

<NC/JR both taking instructions.>

NC - can we have 5 minutes to discuss? My fault, I thought we could do by Whatsapp, needs a discussion.

Court rises.

How can the Judge/ panel deliberate a case when the witnesses will need to be brought back to give further evidence if he lets JR change the pleadings?

have I misunderstood?

Panel back