NHS Fife tries to silence nurse - Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton - thread #53

[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].

The hearing was 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: 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
Thread 52: mumsnet.com/talk/womens_rights/5403218-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-52 2 September 2025 to 4 September 2025

Nope, not a terf - there were some rebukes for Naomi in there too. He wasnt impressed by arguments about not putting the issue to respondent's witnesses and there's a bit of a dig about not putting the right authorities to him. He didnt label that negligence though. JR obviously pissed him off.

IANAL but I think this is basically a loss for SP. The judge has agreed with JR that she could argue objectionable manifestation without saying so explicitly in the pleadings, and that NC ought to have been aware that was the argument being made.

OTOH as various people have said, bending over backwards to be nice to JR's side, and then finding for NC's side, would in many ways be the easiest way out for the tribunal here, so here's hoping that's what will happen.

I tried to read the judgement and got lost.

Do I take it that the "bananarama" defence is not being allowed?
If an amendment to the list of issues is allowed, but then the matters arising weren't discussed because no one knew about them, how can the panel adjudicate on them?

I once seriously thought of studying law - I am now quite glad that I didn't.

No, it is being allowed. The pleading is not being updated because in the judge's view it doesn't need to be (which was JR's first argument, the request to update it being just a fallback in case the judge disagreed). The list of issues is being updated but from the sound of it mostly for tidiness's sake, as there is also an argument that it's not binding on the tribunal to consider only the issues on the list of issues anyway.

My reading (although I'm sure prh47bridge will be along with their far more learned thoughts) was that the banarama defence will be allowed as it could be inferred that JR would argue this regardless of how explicitly or otherwise it was set out in the pleadings and that the list of issues can be amended accordingly.

TBH I think its some nifty footwork from Bing Sond but its not necessarily bad news for little one.

I may be wrong but how i read it was that the Judge considered that the respondents were already arguing that the investigation and disciplinary hearing was not an act of discrimination on the grounds of a protected belief but, a response to an “objectively objectionable manifestation of said beliefs, and therefore no amendment to pleadings is required.

Yes, it always seemed that the respondents' argument related to "objectively objectionable manifestation.!" If not, why all the focus throughout the hearings on SP mentioning Isla Bryson and chromosomes (not that either of those comments actually are objectionable given their clear intended meanings)?

So what is actually changed by the judges decision?

The Herald's article on this judgment won't go down well either with Jane Russell or her clients.

https://archive.ph/JADg9

Surely if the defence are being called negligent, if the ruling goes the way of SP then there may be implications for JC and in terms of an appeal.

If Fife / Dr Upton can successfully argue that there's been negligence in terms of their legal representation that would give them grounds to appeal...?

Going forward, counsel relying on the Bananarama argument will have to be mindful of the judge's decision that section ii of that authority applies:

It ain't what you do, it's the time that you do it
It ain't what you do, it's the time that you do it
It ain't what you do, it's the time that you do it
And that's what gets results.

IANAL and Banned has said it correctly in my view.

The amendment to the pleading (the legal response) that SP was objectionable in the way she confronted DU was not allowed, because it is inherent in the case and the way it was argued. So the judge said you don't need to amend the pleading.

He allowed an amendment to the List of Issues to clarify that objectionable manifestation is an issue.

List of Issues isn't binding and is just to help manage the case particularly when it's is complex. Frequently they are changed and list not just issues but "positions" (not just the facts but what the claim/response is).
JR argued objectionable manifestation in the way she responded to the case and therefore doesn't need to make it a specific pleading.
NC could have cross examined DU and others about objectionable manifestation and if she didn't that's her fault.
The Higgs case was agreed in February 2025 and neither NC nor JR drew particular attention to it at the time, but it was raised.
JR was negligent in bringing the amendment so late.

Foran will let us know his thoughts later.

TL;DR The judge decided the amendment wasn't necessary. The list of issues has been amended so in fact the respondent is still allowed to run the arguments they want to run.

I thought this bit in paragraph 54 was interesting:

In any event, as sex is binary (so held by the supreme court in [the FWS case]) an averment that a person is not a woman is equivalent to the statement that the person is a man because of that.

That dispenses with half a day of evidence from a senior consultant in about a sentence. And a significant part of JR's closing statements too I think!

That’s pretty strong for a judge to describe the late amendment as negligence. 😳

Sandie calling Upton a man and saying he shouldnt be in the womens changing room is in line with the law - therefore I dont see how the tribunal could then say it was objectional unless they think she shouted - and he admitted she didnt. He was offended by what she said because it undermined his belief, not the way she said it. If they find for Upton on that there will definitely be an appeal.

NC did ask DU if there was any way that SP could have expressed herself which would've been acceptable to him, and he said no, IIRC.

Wasn't JR's case also that SP had compared Dr U to a rapist?

I assume that is the part of their argument that the tribunal will consider (whether or not it has any merit).

It was. This was denied and it was said that SP had said it was like the recent court case, but didn't specifically compare DU to a rapist (using the word rapist) or Isla Bryson by name.

Having read the judgement, I broadly agree with others.

The application by Fife to amend their pleadings has been refused on the basis that they have already argued that the action taken against SP was due to her behaviour rather than her protected beliefs, so there is no need for any amendment. The tribunal also does not accept NC's argument that witnesses need to be recalled to address this point as they have already addressed it in the hearing and in their pleadings. The pleadings therefore remain unchanged.

The list of issues is being updated, but that is purely a housekeeping matter. The list is basically a case management tool and is not binding on the tribunal in any case, but since the issue is clearly in play, adding it makes sense.

Both sides come in for some criticism, but JC gets the worst of it. A lawyer being called negligent in a judgement is very strong.

And DU confirmed that she didn’t refer to Bryson under questioning

Ah yes. That bit I'd forgotten.

"No explanation as to why an application to amend it so late in the day to add reference to the issues which are loosely described as being of causation was given to us. That is surprising, and does not reflect at all well on those acting for the respondents.

They argue in effect that they have not abandoned the causation or separability issues, but the Tribunal has the ability to hold that they did so simply from the terms of the List of Issues they stated specifically had been agreed.

It seems to us given the terms of the respondents' pleading and initial or opening skeleton argument that had been ordered and provided, and the other factors we refer to in this decision, that the omission must have been by what we can only describe as negligence."

Oh dear Jane!! That can't be good for your career!

Scottish schools must have separate toilets for boys and girls - BBC News

About *&%$^ing time.

This question, from the BBC article upthread, is open to interpretation

However, when asked if it would now be acceptable for a transgender girl to use a girl's toilets, she said she could not comment on individual cases.

However the minister interpreted it she dodged the question. I'm assuming the questioner meant a biological male but either way the law is now quite clear.

Also, the guidance suggests

It suggests that primary schools should...participate in LGBT History Month and Transgender Day of Visibility.

My bold!

I wonder what twaddle carefully researched details the 'T' can offer for students of history? More on Joan of Arc, maybe?

And Sandie did initially speak with her manager and was given incorrect information regarding Dr Upton's right to use the female changing room.