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

[nauticant]

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

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 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.

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 3 September 2025 to 1 October 2025
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: 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: 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: 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: 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

Such a shame that we are not going to see him in Court facing Kemp and asking him to explain his reasoning.

Unless you believe that only people who meet your moral standards have rights. Sadly, that's not an uncommon attitude. It's the season of goodwill, so I won't say what I think or them, or where I'd like to insert the poles of their banners.

@MyAmpleSheep - have you read the Kelly judgment because I would really appreciate your views on some paragraphs. You don’t have to read the whole thing. We can move that convo over there if best fits.

As opposed to a modern day group who feel that anyone who won't recognise their adopted gender is a witch who is persecuting them. Nothing changes, does it?

IIRC the judgment in that case rested on the fact that a contract to write a book is not the same as a contract of employment. Big Sond may have been (was, IMO) harsh and unreasonable in some of his assumptions, but that doesn't mean that he was necessarily wrong to rule as he did.

Brilliant!

I'd add to this something Keira Bell said about puberty blocking drugs also affecting mental and emotional development. IANA biologist so am happy to be corrected but it does strike me that this would explain some of the attitudes being shown. Heaven help us if we're dealing with the eternal Kevin and Perry the teenagers because reasoned argument isn't going to be an option.

I don't understand why your reference to schedule 3 exemptions isn't entirely a detour?

No one has suggested that the Equality Act requires the provision of single sex workplace changing facilities. The Act simply permits such separation if and to the extent that members of one sex would be disadvantaged by the absence of such facilities. (the permission appears to be in section 19, for which schedule 3 has not relevance: A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's [unless they can] show it to be a proportionate means of achieving a legitimate aim.)

However, the Supreme Court clarified that facilities that admit both women and trans-identified men are not in fact single-sex facilities. So presumably at least part of the case against Fife is based on the fact that they did (as a matter of policy) provide single-sex changing facilities but were violating them by admitting men. It was the violation of their own policies in this respect that constituted the wrong-doing.

As an additional line of argument, SP's team also tried to show that mixed-sex changing facilities would, in fact, disadvantage women more than men. If this line of argument were accepted, that would demonstrate the claim that a policy providing single-sex changing facilities would be lawful, as a proportionate means to a legitimate aim. Which in turn would reinforce the naturalness of reading Fife's changing-room policy as one which provided single-sex spaces (rather than spaces allocated according to 'gender identity').

This isn’t actually true though. Separation of Powers is an Americanism (originally French) which somehow became accepted as an iron law of how all systems work, but it isn’t and never has been.

I mean think about it for a moment – the Prime Minister is head of the executive branch and is also an MP (ie a member of the legislative branch). So are all the ministers. If we had Separation of Powers that wouldn’t be possible.

That’s always how Britain worked, we had a fairly unified governing system which self-corrected and headed off extremism in any form.

Another aspect is the idea that the judiciary must be independent. That’s closer to the British system but ultimately we didn’t have Separation of Powers there either – until 2008 the top appeal level wasn’t a court, it was a committee of the House of Lords (part of the legislature).

This would be harmless enough if ‘Separation of Powers’ was just something people say—we sort of do have something similar, to some extent, even if it’s not a principle—but typically Blair’s Labour used the misconception to push through what they called ‘modernisation’ by separating the judiciary from its tether to the other branches of government.

At the same time they massively but less-conspicuously increased its powers by entrenching their favourite principles in the Human Rights Act (and in the Equality Act) – meaning that from that point policy in those areas was largely turned over to the judges, without the twitch on the thread from the House of Lords, and it turned out the mechanism of entrenchment has carried a magic force strong enough to stop those principles from being revisited, even though we supposedly had a change of government for 14 years in the meantime.

The consequence, as Dominic Cummings has noted, is that the British immune system was destroyed and in these areas we do now have extremism. It sounds like the wrong word until you get a fiasco like this, where it suddenly becomes clear that our governing classes cannot give effect to the broad will of the country. What else would you call it?

It happened by stealth and I’m not even sure much of it was deliberate. But in a way that makes me despise what Labour did even more – the absolute carelessness with which they treated what should have been most precious.

https://www.dailymail.co.uk/news/article-15379409/Now-trans-row-nurse-tribunal-judge-faces-backlash-ruling-misnamed-campaign-group.html

Yes, see my previous post.

Another aspect is that other parts of the tribunal system (not the employment part, which has the traditional adversarial form) aren’t really courts at all, but are better understood as a control method for tweaking executive decisions, eg where a claimant asserts that his human rights have been breached, the tribunal can effectively replace that decision according to the judge’s view of what the human rights should be.

Presto! An executive decision has been removed from the political system, to something which looks like a court but isn’t really, and which might not even be publicised unless it gets further appealed to a higher level.

Again, typical Labour. Farm out political matters to some other body which the public thinks is broadly okay, and let’s not think too closely about what it might mean. I mean we can leave sexual matters to Stonewall’s safe hands, so everything else will probably be fine too.

And I think it has already been appealed.

https://assets.publishing.service.gov.uk/media/661cf91f08c3be25cfbd3d93/Mrs_Gillian_Philip_v_Working_Partners_Ltd_and_Harpercollins_Publishers_LLC__2024__EAT_43.pdf

It would not surprise me at all. During the hearing he seemed generally disinterested and seemed to find the whole business a chore. Always late to start, early to finish

Someone researching that told me that they tended to go after women with property which someone wanted. In unrelated news, ‘Anatomy of a Cancellation’ is available on BBC Sounds

'at some point the lower courts will be told clearly that they must stop trying to subvert FWS and that they should stop any advocate attempting to relitigate that decision.'

By whom?

The judge is responsible for writing the judgement. How much input they take on the written judgement from the other panel members is up to them.

Yes, it’s like the joke about 5e wyntonDublin: ‘I wouldn’t start from here’

My take on it is that, following FWS, toilets and changing rooms are either single biological sex or mixed sex. FWS talks specifically about changing rooms and makes this very clear. The relevant passages are talking about changing rooms generally, not just in the context of providing a service.

The Workplace Regulations require employers to provide separate toilets and changing rooms for men and women. An employer cannot meet that requirement by providing mixed sex facilities. Therefore, following FWS, an employer must tell employees to use the facilities that match their biological sex.

Your argument basically negates the requirement of the Regulations to provide single sex facilities. The courts take the view that, if the law says something, it says it for a reason. An interpretation that renders a requirement void is therefore incorrect.

From the wiki page about 'not even wrong' I especially like What you said was so confused that one could not tell whether it was nonsense or not.

I've mentioned something before on MN that I can't resist repeating now: When my son was a small child he asked me "Why can't you tackle in tennis?" It struck me as a great example of something too wrong to be put right.

(Interestingly, this is more-or-less Wittgenstein's view of the whole of philosophy.)

Ultimately, if a case gets to the Supreme Court and they agree that the lower courts are subverting FWS, they will issue a judgement that makes it crystal clear. If they specifically issue a judgement on the workplace regulations, that is final. The lower courts must follow that.

The two MPs on X linked to by @Lalgarh are right that the SC did not mandate that toilets and changing rooms must be single biological sex. However, they did make it clear that any that are not single biological sex are mixed sex, and any label on the door stating otherwise is meaningless.

Thanks. So that would rely on going through the whole damn process all over again. Years.

What if as pp suggested the SC eventually ruled that in workplaces the law should be different? You would have the situation where Upton could use the women’s staff changing room at work but would have to use the men’s or gender neutral everywhere else. He could pop to the Slug and Lettuce on his lunch break and he’d have to use the men’s or disabled. Would that be seen as confusing/inconsistent or would the SC biological sex judgment be considered relevant to this decision?

Does it have to wait until it gets to the SC, couldn't the SC be a bit more proactive and monitor the activity's of the lower courts to make sure they're following their judgements?

This is what I think.

The workplace regs don’t define men and women but the usual principles of statutory interpretation apply ie the “normal” meaning is used. The SC reasoning is at least highly persuasive. Plus NHSF DID provide separate changing rooms. The door was marked “female”. Upton was by no account “female” and should not have been using the female area.

Even if we do accept the PP premise may affect the direct SD claim though it doesn’t knock out the other claims ie of indirect discrimination, harassment and victimisation

Well, as soon as there is a judgement on these points in the EAT that will form a precedent. So Sandie’s appeal might help. Or alternatively if we get to a point where the vast majority of ET rulings, post SC, were also clear that the SC did apply to eg changing rooms, that would help too.

I think if the SC had to rule on the meaning of sex in the regs they would find the reasoning in their own decision on FWS highly persuasive