NHS Fife tries to silence nurse - Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton - thread #54

[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
Thread 53: mumsnet.com/talk/womens_rights/5404208-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-53 from 3 September

There’s a difference between Fife saying in the tribunal “her beliefs might have been objectionably manifested, so we had to check” - and “despite the outcome of the investigation we are still maintaining her beliefs were manifest in an objectionable way therefore her claim for harassment by DU must fail”.

the first argument has some sense. The second is entirely inconsistent with their own investigative outcome.

I'm very much hoping for some Jo Phoenix-style "We do not find X to be a credible witness" action from Big Sond when he writes his judgment.

I was hoping for the same - possibly the nearest Big Sond will get to calling Upton an outright liar.

To be clear, I think Fife should have conceded before this got anywhere near a tribunal. However, I would not have expected them to concede at that point. If they were justified in suspending SP due to Upton's allegations, the fact that Upton lied about it would not render the suspension invalid. If it did, no employer would ever be able to suspend an employee whilst investigating allegations about their behaviour.

I have a mental image of the day it's published being like one massive TERFy unboxing TikTok.

I think we are in real danger of getting ahead of ourselves - I wish I could be as confident as some that the judgement will straight-forwardly go Sandie Peggie's way, but I think there are still definite possibilities that it won't, or that it will be ambivalent enough that Fife/TRA world will spin it as a victory for them and use even parts of it to make SP look as bad as they can.

When is the result of the judgement due please? Hopefully this side of Christmas. I feel sorry for Sandie that it's dragged on for so long.....thanks to NHS Fife of course!

Objectively

• The Supreme Court has said no bio males in the ladies changing room - and it was always the case
• Fife have now said its policy is no bio males in the ladies changing rooms
• Legally Upton shouldn't have been there before and won't be again
• Upton said he was sad at what Sandie said - but he said she didnt call him Isla Bryson.
• The witnesses said there was no way Sandie could express her gender critical beliefs - they just believe it was unreasonable to even mention it
• So Sandie doesn't meet the objectively objectionable test. Saying anything was unreasonably considered objectionable. So that isn't a valid defence.

I think its a slam dunk, dunk, dunk, dunk dunk. I am looking forward to reading the judgment.

This is a very realistic prediction.

I'm sorry, I'm sure this will have been covered in the previous thread, which I haven't caught up with yet, but given that the amendment has been refused, are we just waiting for the judgement now? Or is something else happening this month first?

Yes, the next thing we hear should be the judgement, after which we will find out if anyone intends to appeal.

Something that I haven't got to grips with is how far Upton can rely on the defence that it was reasonable for him to assume that the advice he received from HR/senior staff re: changing rooms was correct?

IANAL but I think in itself that argument sounds reasonable, doesn't it? Employees aren't all experts on their own rights and the ins and outs of workplace regulations. People should be able to rely on advice from HR/senior staff. That's what they're for. It was clearly an issue where there was widespread misrepresentation of the law so as a non-expert I don't think he can have been expected to automatically know what they were saying was wrong, like he would have if an HR person, say, told him he was OK to steal drugs from the hospital for his personal use.

Of course, in Upton's case, he didn't seek advice beforehand. He decided he would go in the women's based on his own understanding of his rights (which he probably got from Reddit) and presented his decision to Dr Searle as a fait accompli. She didn't raise any objections, so he later claimed that he had been told to go in the women's, but it's not quite the same thing, is it?

Oh, I don't think it will be entirely one-sided. But in addition to @Itmakesme 's list of reasons, there's also:

NHS Fife withholding (and there's surely no question that they knew they were relevant?) relevant documents during discovery.

The extremely poor showing of several NHS Fife witnesses - e.g. IB blithely admitting she hadn't been to look at the changing rooms, one of the consultants blethering on irrelevantly about DSDs.

The evidence of the technical phone expert that in his opinion DU's screenshots had been tampered with, and the gaps in the online meeting during which DU was supposed to have worked with his IT colleague to get the data from the phone.

I'm wondering whether the late emergence of the bananarama defence is an indication of some conflict between the two respondents?

Surely it should have been straightforward to set up an initial set of arguments (pleadings?) that:

• SP's beliefs regarding DU were inherently offensive and required suspension, investigation and should be considered gross misconduct
• Even if the beliefs weren't inherently offensive, the manner of expression was objectionable and required suspension and investigation and should be considered gross misconduct
• Even if the expression of the beliefs was not objectionable and not misconduct, suspension was required whilst an investigation was carried out.

That the second and third of these were only introduced so late when it has been blindingly obvious that these should be part of the respondents' line of defense (and SP's team were asking them directly why on earth they weren't being run) suggests to me that there may have been arguments behind the scenes about the acceptability of these arguments.

It will be interesting to see how much the Darlington NHS Trust defence differs from the NHS Fife defence, given that it will start several months after the SC ruling.

If this continues for months longer could Upton theoretically be a father before it ends?
Would Isla Bumbling then be able to guess he was male?

I've just caught up on the last thread. I'm sure we all said it was clearly negligence when NHS Fife submitted to amend their plea so late in the game, but I couldn't quite believe my eyes reading that Big Sond and crew also agree negligence.

Is there a conflict with what SP was told she was being investigated for.

https://www.bbc.co.uk/news/articles/cwy921n5dwro

I've been re-reading this all day. Dr Upton must be raging

I hope you are correct but I have a few nerves about that.

Is a similar message to that of the Scottish Govt required now from Westminster (and Cardiff?) regarding the rest of UK health trusts?

I'd assume so, yes

What's happening this month is that the Judge and panel members have 3 days set aside to deliberate on the case. We probably won't hear more until the decision is finalised.

From final session on 2/9:
J We will follow up with qs and qs of clarity and will be back to you when we can. Will have deliberations in mid October. Difficult to say when can hand down judgement, won't be before November.
NC When you hand down judgement would be very helpful to have notice of hand down date and embargoed copy of judgment a few days before made public. At least some notice.
J Will need to check with President. How many days would you like?
NC Five please. [all agree]

I just checked back on TT because I also had a vague idea October was important. Prior to the discussion above, NC had indicated that if the panel allowed the R to change the pleading, then the Claimant would be making an application to the EAT and would want to do that before the deliberations in October commenced. I believe either party could appeal the recent order but as of now it looks as though the deliberations will continue as planned.

• The witnesses said there was no way Sandie could express her gender critical beliefs - they just believe it was unreasonable to even mention it

This is actually the least relevant fact here. The test for unreasonable manifestation is an objective one and something for the tribunal alone to decide. What any witness, observer, respondent or claimant think about reasonability or unreasonability makes no difference.

Big Sond could easily say that it was unreasonable for SP to say anything in the CR, or that it was unreasonable to say more than a few polite quiet words, or that it was reasonable to stomp around on DU's bare feet with hobnail boots.

Ok - not the last one, but you get the idea.

That's the guy from the Darlington nurses case you're thinking of.

There's been no indication that Theodore Upton and his wife are trying for a baby IIRC.