Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton, following Employment Tribunal judgment - thread #60

[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
Thread 59: mumsnet.com/talk/womens_rights/5459115-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-following-employment-tribunal-judgment-thread-59 12 December 2025 to 17 December 2025

Simon Myerson KC:
There’s a case now for saying that the judgement does not fulfil the purpose of allowing an objective reader to understand either the evidence, or the law, or the conclusions.

So back to square one? or can the EAT say that as DU had no business being there in the changing room, there is not much evidence that needs to be heard?

Yes. And according to the Times, he was responsible for the assertion that there would be no more corrections, which he later changed his mind about.That suggests someone was pressuring him to sort it out and he reluctantly gave in in the end. I'm wondering whether the more senior judges just want to get the judgment into a state where it can be appealed by actual lawyers discussing actual caselaw (ie it contains identifiable pronouncements of law which are arguably right or wrong) But it's such a dog's dinner that it cannot be made to make enough sense to found an appeal on

Maybe the judge knows that he is 'on the right side of history' so he just needs to keep adjusting the judgment until people understand he is right.
Perhaps there is also no one to tell him when to stop.

I think the judge has just been on the redbull with the Friday night squirrel squad. They are now taking it in turns to see who can bounce the highest on the trampoline.

The EAT can say that the tribunal got the law wrong and the Upton should not have been allowed to use the women's changing facilities. They can also overrule the tribunal's ruling that there was no evidence that TIMs are more of a threat to women than other women, as evidence was presented to that effect but the tribunal chose to misinterpret it. However, the EAT cannot, in general, overrule the tribunal's findings of fact, including its findings as to the credibility of the various witnesses. The only way that will happen is if this is sent back to be reheard by a different tribunal.

My view is that this judgement is clearly biased, which means going back to square one. However, if they make clear rulings on the questions of law, that may limit the amount of evidence presented somewhat. If the EAT has ruled that Upton should never have been allowed in the women's changing room as a matter of law, a lot of NHS Fife's evidence becomes unnecessary as that was about justifying their decision to let him in.

This thread from Michael Foran is understated. And this comment from Gussie made me laugh https://x.com/gussiegrips/status/2003778652937552187?s=46

Elaine Miller is brilliant, love that comment.

For those not on X:

https://nitter.net/GussieGrips/status/2003778652937552187#m

She says:

Elaine Miller | Venus Envy@GussieGrips
2h
I know nothing of the law, but I can spot a fanny at 1000 yards. All I know is this judgement is half a(nother) correction away from falling into my scope of practice.

Presumably SP would be needed to describe how she was treated (?), but can't see any need to discuss what happened in the changing room. It sounds like a case for agreeing a whole lot of facts to save everyone the trauma of going through it all again.

Even if the EAT decides that Upton should not have been in the changing room, it doesn't necessarily take away the Bananarama defence. It would still be open to NHS Fife to argue that Sandie's actions went beyond the bounds of what was acceptable and/or that she deliberately provoked a confrontation. However unjustified Upton's presence, there are always limits as to what Sandie could do in response. Stabbing him or making death threats, for example, would clearly be unacceptable. So there will still be a need to discuss what happened in the changing room and for the tribunal to make findings of fact on that.

I agree with Michael Foran that removing the hallucinated quotes is beyond what is allowed. Some of the other changes are ok, some are questionable but I think Kemp might have got away with those if they were the only corrections. But removing quotes that you used in your argument because those quotes didn't exist goes well beyond what is allowed.

You've ruined my Christmas, I hope you're ashamed! The only salvation, then, would be if the EAT sock it to Fife so hard that they cave, and so far they have been astonishingly reluctant to give in.And the history of the local EATs doesn't suggest that they will do anything very creative, either. Bah, humbug!

Sorry!

I think a lot of lawyers, myself included are at a bit of a loss over this one.

I get the sense that the level of mistakes and the frankly egregious misuse of the slip rule is almost unprecedented. There is a question over whether or not some of these corrections even stand because they are not within the permitted changes.
Rule 67 (the slip rule for ET) is for correction of clerical errors so

Acceptable - the correction of the name of “Not All Gays” as it was a clear misrecording of the name of the organisation and doesn’t impact the substance of the judgement

NOT Acceptable - removal of legal authorities and erroneous quotations such as the Forstater case and Lee v Ashers as these are foundational to the subsequent legal “analysis” in the judgement

Is the latest version of the judgement even valid if impermissible corrections have purported to be made?

Agreed.

I may be wrong, but I think we are beyond the point where the EAT will think it can fix this judgement by correcting the errors of law. I think it is so far gone we are going to have to start again.

She's blocked me on Twitter and I can't fathom what I could have done to cause it! 😬🤷‍♀️

Is the Not for Gays / Not all Gays slip Not a possible indication of bias?

Are there any trans activists that also use this amusing slip when referring to Not all Gays?

Nobody has considered here whether NHSFife would defend an appeal; or whether they would contest a rehearing. They might not. DU will, on ideological grounds, but I’m not sure about NHSFife.

For me, the fact it was written as Not for Gays (note lack of capitalisation on the "for") was an indication of bias in the judge's office. Someone had clearly changed it as a joke. Not sure it makes much difference to the whole mess, though.

Acceptable - the correction of the name of “Not All Gays” as it was a clear misrecording of the name of the organisation and doesn’t impact the substance of the judgement

Whilst I agree about the correction not impacting the substance of the judgement, I am not convinced it was a simple misrecording especially as it follows the exhibited bias. And once you allow that it may not be a simple error, you must consider whether it either reflects his attitude to the evidence and misquoted as a sort of confirmation bias of that, or he set out directly to discredit them.

I've been wondering this showed bias. If someone quoted Owen Jones but called him Talcum X you'd think that person might be GC or at least not a friend of LOJ. Is something similar happening here?

If NHSFife don’t then will he have to pay his own legal bill?

Strange, similar happened to me and I was blocked by a poster called Terf Rocks, but I have no idea why.

The judge has issued a formal apology to Not All Gays so I assume the EAT would take it a face value.

"I'm sorry I fucked up" doesn'tt mean the whole thing isn't fucked up though, does it?