Page 11 | Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton, following Employment Tribunal judgment - thread #59

nauticant · 2025-12-12T19:37:11+00:00

*Judgment was handed down on 8 December 2025:* *[[https://assets.publishing.service.gov.uk/media/6936ce28a6fc97b81e57436a/S_Peggie_v_Fife_Health_Board__Dr_Upton.pdf https://assets.publishing.service.gov.uk/media/6936ce28a6fc97b81e57436a/S_Peggie_v_Fife_Health_Board__Dr_Upton.pdf]] * Sandie Peggie, a nurse at Victoria Hospital in Kirkcaldy (VH), 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. Following handing down of the judgment on 8 December 2025, on 11 December 2025, it was announced by Sandie Peggie and her legal team that they would be pursuing an appeal. The hearing was live tweeted by [[https://x.com/tribunaltweets x.com/tribunaltweets]] and there's additional information here: [[https://tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr-005 tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr-005]] and [[https://tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr-bd6 tribunaltweets.substack.com/p/peggie-vs-fife-health-board-and-dr-bd6]]. Links to previous threads #1 to #50 can be found in this thread: [[https://www.mumsnet.com/talk/womens_rights/5379717-sandie-peggie-list-of-threads-covering-employment-tribunal-and-afterwards 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 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: [[https://www.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 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: [[https://www.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 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]] 3 September 2025 to 1 October 2025 Thread 54: [[https://www.mumsnet.com/talk/womens_rights/5418690-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-54 mumsnet.com/talk/womens_rights/5418690-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-54]] 28 September 2025 to 21 November 2025 Thread 55: [[https://www.mumsnet.com/talk/womens_rights/5447019-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-55 mumsnet.com/talk/womens_rights/5447019-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-55]] 19 November 2025 to 8 December 2025 Thread 56: [[https://www.mumsnet.com/talk/womens_rights/5456749-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-56 mumsnet.com/talk/womens_rights/5456749-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-56]] 8 December 2025 to 9 December 2025 Thread 57: [[https://www.mumsnet.com/talk/womens_rights/5457132-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-57?page=30&reply=149114174 mumsnet.com/talk/womens_rights/5457132-nhs-fife-tries-to-silence-nurse-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-thread-57]] 9 December 2025 to 11 December 2025 Thread 58: [[https://www.mumsnet.com/talk/womens_rights/5458443-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-following-employment-tribunal-judgment-thread-58?page=37&reply=149143007 mumsnet.com/talk/womens_rights/5458443-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-following-employment-tribunal-judgment-thread-58]] 11 December 2025 to 12 December 2025

MyAmpleSheep · 13/12/2025 12:58

theilltemperedmaggotintheheartofthelaw · 13/12/2025 12:45

WR1992 have been confirmed as sex-based. The problem is with employers' discretion to allow in some men exceptionally (as SSE rules don't apply).

Upton and Peggie both have protected beliefs (though I would argue that his are non-WORIADS to the extent they require unconsenting women to grant him access).

His beliefs have state endorsement, but the effect must be limited by Article 9.

So the employer must accommodate both, requiring neither of them to share intimate space with men.

This is not onerous for the employer. It should be easy to find out how many gender non-believers they have, and allocate strictly single-sex provision accordingly, without breaching anyone's confidentiality.

And they must do that, to avoid a harassment finding like Fife suffered.

WR1992 have been confirmed as sex-based. The problem is with employers' discretion to allow in some men exceptionally (as SSE rules don't apply)

To my understanding the SSE exemptions are only relevant because they (by legal argument) mandate the enforcement of single sex services which, facially, are only optional: “you may separate out peanuts but only if necessary for a proper purpose”. To whit, if a no-peanuts service is only legal through a gateway condition, as soon as it contains one peanut it’s clear the gateway condition fails - it couldn’t have been necessary to separate out peanuts (look! You let one in!) and the whole dish is unlawful.

WR rules are facially mandatory, not optional. To my mind it’s unlawful to pemit even one peanut into a workplace toilet not provided for peanuts, simply because the rules say it’s only for peanuts.

And it now seems clear to me that the rules that say peanuts and walnuts have to be provided different toilets aren’t consistent if “peanuts” includes “walnuts dressed like a peanut with peanut flavouring”.

theilltemperedmaggotintheheartofthelaw · 13/12/2025 13:06

MyAmpleSheep · 13/12/2025 12:58

WR1992 have been confirmed as sex-based. The problem is with employers' discretion to allow in some men exceptionally (as SSE rules don't apply)

To my understanding the SSE exemptions are only relevant because they (by legal argument) mandate the enforcement of single sex services which, facially, are only optional: “you may separate out peanuts but only if necessary for a proper purpose”. To whit, if a no-peanuts service is only legal through a gateway condition, as soon as it contains one peanut it’s clear the gateway condition fails - it couldn’t have been necessary to separate out peanuts (look! You let one in!) and the whole dish is unlawful.

WR rules are facially mandatory, not optional. To my mind it’s unlawful to pemit even one peanut into a workplace toilet not provided for peanuts, simply because the rules say it’s only for peanuts.

And it now seems clear to me that the rules that say peanuts and walnuts have to be provided different toilets aren’t consistent if “peanuts” includes “walnuts dressed like a peanut with peanut flavouring”.

Edited

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WR1992 mandates the estate, not policing its usage. Of course if it turns out there is no discretion then Upton will just have to shuffle off to a third space. But it's not decided yet. The existing decisions both permit 'inclusion', at least until someone adversely affected reasonably objects.

CriticalConditionUnamendedVersion · 13/12/2025 13:06

I have also wondered whether Kemp has had some sort of breakdown. The judgment is such an omnishambles it is difficult to imagine how any self-respecting lawyer could produce it.

SionnachRuadh · 13/12/2025 13:08

theilltemperedmaggotintheheartofthelaw · 13/12/2025 12:45

WR1992 have been confirmed as sex-based. The problem is with employers' discretion to allow in some men exceptionally (as SSE rules don't apply).

Upton and Peggie both have protected beliefs (though I would argue that his are non-WORIADS to the extent they require unconsenting women to grant him access).

His beliefs have state endorsement, but the effect must be limited by Article 9.

So the employer must accommodate both, requiring neither of them to share intimate space with men.

This is not onerous for the employer. It should be easy to find out how many gender non-believers they have, and allocate strictly single-sex provision accordingly, without breaching anyone's confidentiality.

And they must do that, to avoid a harassment finding like Fife suffered.

This is something I've been thinking about, in terms of how employers might use that discretion, and I don't think there are firm rules about it. (My workplace H&S ken is a long time in the past, so anyone feel free to knock me down)

I can see it being used for health reasons, ie 'Tim has prostate problems and might get caught short when the nearest gents is out of order'

I can even see it being used for gender reasons, ie 'We all know and trust Nicki and nobody has a problem with her using the ladies'

I think it's most viable in smallish workplaces with high levels of trust between the staff. And even then the exception would always be provisional and could be thrown into question if a single person objects. I have a feeling SK was grasping towards this, even if he was having to invent his own hoops to jump through.

(FWIW if I were an employer I'd be very reluctant to allow an exception in the first place, not least because revoking an exception previously agreed to could get quite ugly)

It would require employers to be reasonable and sensitive, and hopefully to have some underpinning principles to help them resolve disputes, so they don't end up in front of a tribunal saying 'We asked Isla Bumba and she said we were grand'.

Of course the best thing would be for the HSE to have some guidance about how to resolve disputes in this area. Does such guidance exist? If not, does anyone in the HSE feel that it might be a good idea to produce such guidance?

OpheliaWitchoftheWoods · 13/12/2025 13:09

Majorconcern · 13/12/2025 12:50

Kemp is just the latest person to throw their career under a bus in homage to the self-delusion of Dr Upton. How many more?

'Isn't it grand? Isn't it rich?
Look at the charm in every stitch!
The suit of clothes is altogether, it's altogether, but altogether
The most remarkable suit of clothes that I have ever seen'

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Call the court physician
Call an intermission
His majesty is wide open to ridicule and scorn....

and the tragedy is that the UK is watching all its leaders, its establishment and it's entire judicial system look ridiculous and severely unwell.

MyAmpleSheep · 13/12/2025 13:09

theilltemperedmaggotintheheartofthelaw · 13/12/2025 13:06

WR1992 mandates the estate, not policing its usage. Of course if it turns out there is no discretion then Upton will just have to shuffle off to a third space. But it's not decided yet. The existing decisions both permit 'inclusion', at least until someone adversely affected reasonably objects.

Show quote history

I find thst point (in Kelly) silly. I can’t see how the WR regulations could possibly have been intended by Parliament to be “build and forget”. If the water goes out, can they say “well we put the plumbing and drainage in, so we’ve done our bit, we don’t need to make sure there’s still water coming out of the taps”?

nicepotoftea · 13/12/2025 13:10

theilltemperedmaggotintheheartofthelaw · 13/12/2025 13:06

WR1992 mandates the estate, not policing its usage. Of course if it turns out there is no discretion then Upton will just have to shuffle off to a third space. But it's not decided yet. The existing decisions both permit 'inclusion', at least until someone adversely affected reasonably objects.

Show quote history

WR1992 mandates the estate, not policing its usage.

But isn't that pointless?

prh47bridge · 13/12/2025 13:13

nicepotoftea · 13/12/2025 13:10

WR1992 mandates the estate, not policing its usage.

But isn't that pointless?

Show quote history

Agreed. I don't think employers are required to put bouncers outside the loos to police usage, but simply building the single sex facilities and then telling people they can use whichever they want regardless of the label on the door is unlikely, in my view, to meet the requirements of the WR.

theilltemperedmaggotintheheartofthelaw · 13/12/2025 13:15

nicepotoftea · 13/12/2025 13:10

WR1992 mandates the estate, not policing its usage.

But isn't that pointless?

Show quote history

I think it didn't occur to anyone they needed to say it!

But the concept came up with Croft v Royal Mail. Did anyone suck their teeth and talk about the H&SE? They did not.

We may be slightly underestimating the extent of transgenderist belief.

theilltemperedmaggotintheheartofthelaw · 13/12/2025 13:20

SionnachRuadh · 13/12/2025 13:08

This is something I've been thinking about, in terms of how employers might use that discretion, and I don't think there are firm rules about it. (My workplace H&S ken is a long time in the past, so anyone feel free to knock me down)

I can see it being used for health reasons, ie 'Tim has prostate problems and might get caught short when the nearest gents is out of order'

I can even see it being used for gender reasons, ie 'We all know and trust Nicki and nobody has a problem with her using the ladies'

I think it's most viable in smallish workplaces with high levels of trust between the staff. And even then the exception would always be provisional and could be thrown into question if a single person objects. I have a feeling SK was grasping towards this, even if he was having to invent his own hoops to jump through.

(FWIW if I were an employer I'd be very reluctant to allow an exception in the first place, not least because revoking an exception previously agreed to could get quite ugly)

It would require employers to be reasonable and sensitive, and hopefully to have some underpinning principles to help them resolve disputes, so they don't end up in front of a tribunal saying 'We asked Isla Bumba and she said we were grand'.

Of course the best thing would be for the HSE to have some guidance about how to resolve disputes in this area. Does such guidance exist? If not, does anyone in the HSE feel that it might be a good idea to produce such guidance?

Show quote history

I really only had in mind the 'exception' that some employees may be transgenderism believers and/ or may believe themselves to be the opposite sex. Not to be applied on a person-by-person basis.

Isn't there an airport with 'inclusive' and single-sex toilets. You could police those.

GallantKumquat · 13/12/2025 13:24

ArabellaSaurus · 13/12/2025 12:51

https://www.dailyrecord.co.uk/news/politics/sandie-peggie-tribunal-ruling-shows-36390810

Former SNP health sec calls it a 'fiasco'.

"Frankly, if I had been health secretary the whole Fife board would have been sacked months ago." 👀

nicepotoftea · 13/12/2025 13:44

I think somebody was saying that the workplace regulations don't mention men and women?

Is the website below then just guidance?

Here, the facilities required are different depending on the sex of the users.

https://www.hse.gov.uk/simple-health-safety/workplace-facilities/health-safety.htm

Have the right toilets and washing facilities - HSE

Employers must provide adequate toilets and wash facilities for those expected to use them. You must always consider the needs of those with disabilities.

https://www.hse.gov.uk/simple-health-safety/workplace-facilities/health-safety.htm

Namechange2211 · 13/12/2025 13:45

CriticalConditionUnamendedVersion · 13/12/2025 13:06

I have also wondered whether Kemp has had some sort of breakdown. The judgment is such an omnishambles it is difficult to imagine how any self-respecting lawyer could produce it.

Maybe he is just lazy, stupid and an alcoholic. Many judges are. (So I hear).

lcakethereforeIam · 13/12/2025 13:55

The BBC has done its round up of the Scottish Papers. Peggie is on the front page of many of them, at least she was yesterday

https://www.bbc.co.uk/news/articles/c3r77dyq27ro

Btw, isn't Ricky Gervaise lovely?

Scotland's papers: Growing doctors crisis and Peggie fight continues

A review of the front page stories from the daily newspapers in Scotland.

https://www.bbc.co.uk/news/articles/c3r77dyq27ro

ArabellaSaurus · 13/12/2025 14:00

https://www.dailyrecord.co.uk/news/scottish-news/theres-no-excuse-sandie-peggie-36388993

Record called for Kemp to be sacked yesterday.

Sandie Peggie ruling correction has shamed the Scottish justice system

Record View says it shouldn’t take an army of motivated sleuths on social media to correct the work of Scotland’s justice system.

https://www.dailyrecord.co.uk/news/scottish-news/theres-no-excuse-sandie-peggie-36388993

MyAmpleSheep · 13/12/2025 14:00

nicepotoftea · 13/12/2025 13:44

I think somebody was saying that the workplace regulations don't mention men and women?

Is the website below then just guidance?

Here, the facilities required are different depending on the sex of the users.

https://www.hse.gov.uk/simple-health-safety/workplace-facilities/health-safety.htm

You might have meant me. The Workplace Regulations (of course) mention men and women. The Health and Safety Act Work Act 1974 (the empowering Act for the WR) doesn’t, according to an AI search.

This is all in the context of statutory interpretation. Guidelines published by an enforcement body don’t help with that.

nicepotoftea · 13/12/2025 14:09

MyAmpleSheep · 13/12/2025 14:00

You might have meant me. The Workplace Regulations (of course) mention men and women. The Health and Safety Act Work Act 1974 (the empowering Act for the WR) doesn’t, according to an AI search.

This is all in the context of statutory interpretation. Guidelines published by an enforcement body don’t help with that.

Show quote history

https://www.legislation.gov.uk/uksi/1992/3004/regulation/20

So I think this is the legislation and the section of the HSE site about minimum toilet numbers is guidance?

I still don't think any of it makes sense to employers if 'man' and 'woman' have no objectively agreed meaning that is independent of employer interpretation.

You might as well mandate separate facilities for blue and green people and separate design for unicolour toilets, and then leave it up to the employer to decide which people are which.

Why bother with all of the expense?

The Workplace (Health, Safety and Welfare) Regulations 1992

https://www.legislation.gov.uk/uksi/1992/3004/regulation/20

EweProfessorSurnameDoctorProfessor · 13/12/2025 14:13

Michael Foran going live on his substack tomorrow at 4pm to discuss it all:

knowingius.org

FaithHopeCarnage · 13/12/2025 14:16

I have been following the ‘wrong’ Ben Cooper on X/twitter dammit! Appears I’m not the only one, as he has a pinned post stating he is not the “pretty damned good lawyer”. Never thought to check - that’ll teach me!

Original poster

nauticant · 13/12/2025 14:19

But in a sort of nominative determinism, the non-barrister @bencooper expresses GC views and is a decent follow.

OP posts:

ProfessorBinturong · 13/12/2025 14:19

<ahem>

There is no such thing as a toothcomb.

The expression is 'fine-tooth comb'. A comb with fine teeth. Like a nit comb. For combing out small things. It is not an implement for combing your teeth. That makes no sense!

Sorry.

Thank you.

As you were.

ProfessorThreeWordHarpy · 13/12/2025 14:20

Namechange2211 · 13/12/2025 13:45

Maybe he is just lazy, stupid and an alcoholic. Many judges are. (So I hear).

Show quote history

He was most certainly not up to the job.

i think the kindest perspective is that he’s never had to preside over a case of this length and complexity before, and it has revealed that he simply isn’t capable of doing it properly. It seems that the vast majority of ET hearings have only a couple of witnesses and only last a few days, and maybe he’s ok with simpler cases like that.

Of course, there are plenty of other plausible reasons, but I tend towards both Hanlon and Occam’s razors in most things.

MyAmpleSheep · 13/12/2025 14:22

ProfessorBinturong · 13/12/2025 14:19

<ahem>

There is no such thing as a toothcomb.

The expression is 'fine-tooth comb'. A comb with fine teeth. Like a nit comb. For combing out small things. It is not an implement for combing your teeth. That makes no sense!

Sorry.

Thank you.

As you were.

Wait, what? So what do you call the thing you comb your teeth with?

lcakethereforeIam · 13/12/2025 14:23

A toothbrush? On no, that wouldn't work.

Namechange2211 · 13/12/2025 14:24

Sorry yes I shouldn't speculate. I'm just so pissed off at the entire thing.