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

If he had told NHS Fife to jump in the Clyde (or Forth ) would they have done that?

Yes of course. Then Judge Kemp overheard and obligingly followed suit.

Almost certainly, or at least Kate Searle and Maggie Currer would have. It's quite astonishing, the hold he seems to have had over them.

Again, though, it's not Upton who has the hold over NHS Fife, Judge Kemp, etc.

The Scottish goverment, for some unknown reason, is willing to move mountains to protect, promote, and promulgate gender ideas.

Men like Upton are just opportunists. They'll always be with us. The problem is with the institutions caping for them, for whatever reason.

I do hope that Sandie, along with every other woman who's had to endure an ET because of her GC beliefs, has had a happy Christmas.

This. The extent to which people within SG are willing to sacrifice a wheen of public monies and their own careers to try and argue for this remains an absolute mystery to me. And I do find that, as much as it's nice to see the back of some of the politicians at the forefront of this push at the next election, the quality of the candidates coming forward in 2026 doesn't fill me with any confidence.

A PP on one of these threads jokingly mentioned Naomi Cunningham needing a button to press that plays a recording of her saying "That's not what you said last time". Does she have form for saying this during rehearings?

My understanding of NC's approach from comments she has made generally, she will not accept anything except complete.acquiescence to.the Claimant's case, presumably also paying their costs.

While NHS Fife may acquiese, it's unlikely DU will and while their cases are inextricably linked, NC will not accept a settlement without both of them acquiescing in full. Which is very unlikely.

My expectation is that the Certificates of Correction will be addressed by the EAT because they should only be used to correct a typo and not completely remove made up quotes. See Michael Foran's account on X for case citations and explanation.

I think also that the whole case must be reheard because the findings of fact are incorrect and likely to be biased and the incident in the CR on Christmas Eve is in dispute and lies at the heart of the case.

I think that if Judge Kemp is allocated to another employment tribunal, the barristers for both sides are likely to ask.for his recusal because he cannot explain the mistakes in the judgment and no party will want to risk their clients' cases at his hands.

It's more expense and time for Sandie, but I hope she has the strength and fortitude to continue.

@MyrtleLion im sure you know this, but it’s not for NC to decide what to accept, it’s entirely SP’s decision.

NC will not accept a settlement without both of them acquiescing in full. Which is very unlikely.

I think you meant that SP will not accept a settlement, leastways it has nothing to do with NC what settlement is acceptable to the claimant; she’s just a hired gun, albeit a good one.

You are correct. All offers must go to the client. And the client will be offered advice on whether to accept any settlement if they ask for it.

its more likely SP’s solicitor Margaret Gribbon would discuss settlement terms with the client, having conferred with counsel on whether counsel thought they could do better at trial. Then relay the client’s instruction to counsel. Traditionally counsel doesn’t meet the client. Given the unusual nature of the case and the public interest in it, and NC’s known campaigning on the issues at stake, that might be different here. But traditionally the solicitor is the only client contact.

I believe we understand Ben Cooper will be leading on the appeal, too. We may well not hear from NC in this case again.

I hope Sandie Peggie and her family had a lovely Christmas.

Again you are (mostly) correct. However, NC and SP do have a relationship and I'm sure NC will have conveyed her views to Sandie and will be available if Sandie asks for her opinion.

I'm never sure which side you are really on. You seem very quick to be pedantic on the tiniest points. This often comes across as you being supportive of the trans rights side. Which is your prerogative.

But as an example you jumped on me when I was talking about single sex spaces on another thread by insisting that the SC judgment referred to single sex services. As is clear to everyone, providing a single sex space is a single sex service.

I don't actually understand why this point mattered so very much to you, but it came across as if you were arguing about the number of angels dancing on the head of a pin (a metaphor for wasting time debating topics of no practical value, or on questions whose answers hold no intellectual consequence when more urgent concerns accumulate).
https://en.wikipedia.org/wiki/How_many_angels_can_dance_on_the_head_of_a_pin

Is it your pedantry or your opinion? If you are a lawyer, say so.

I am always willing to correct my mistakes, but it is very disconcerting to be pulled up on my posts when it is clear what I am trying to convey. And I am someone who enjoys my own pedantry.

Are you trying to waste time debating things of no practical value, or is this just your way?

As is clear to everyone, providing a single sex space is a single sex service.

As Big Sond made clear, if the space is single-sex, workmen cannot enter to repair it. If the service is single-sex, the service can be suspended temporarily to allow repair of the space in which the service operates. The space is only single-sex during the operation of the service.

When it comes to law, precision matters.

Traditionally counsel doesn’t meet the client.

They do in my area of law. Client / counsel conferences are very common.

Mine too.

she will not accept anything except complete.acquiescence to.the Claimant's case, presumably also paying their costs.

Aside from the decision being SPs, if she gave anything away now then that forms the new start point for negotiations of a settlement. She wouldn’t get anything in return; it would just weaken her position. Even if they were prepared to compromise on certain things (not sure what, men can never be women) they could not state it publicly.

I’m very GC. But I’m also a realist, and I know we might not get everything we want. I’m always thinking things through from both sides, even when my heart is firmly on one of them. That does mean the detail of the law is important, because it’s on in the detail of the law that cases like this hinge.

I apologize (I’m very sorry!) to you for making you feel under the microscope, and I promise there’s nothing personal about it, so please understand “I broadly agree with you but have you considered the following thoughts:” as where I start from in replying to what you write.

I’ll take on board the correction from the working solicitors on here that their clients have an ongoing relationship with counsel, and that SP and NC likely do, too.

I agree with your wider point about hoping that this case doesn’t settle for some unsatisfactory compromise. I don’t think it will.

It's useful to have a clear idea of what an EAT judgment can provide. Such judgments create binding case law but only in respect if the parts of the case argued over and decided at that level.

SP won some parts are lost others. She can appeal to have those parts she lost overturned at appeal. She can't appeal on the parts she won. This means that if NHS Fife were not to cross-appeal the parts they lost, these wouldn't be in issue at the EAT level and wouldn't be turned into binding case law.

Kemp handed to SP those parts that were a slam-dunk. There would be not much point NHS Fife appealing against those. It could end up as an appeal where it's only SP seeking to overturn parts of the appeal she lost. We shouldn't take for granted that she'd win those parts, particularly because they were decided on evidence that had gone through the filter of Kemp and much of this evidence is now in a form that is unhelpful to SP. This means that one outcome could be that SP takes parts of her case to the EAT level, she loses because the evidence had been made unhelpful to her, and in losing at that level, the binding case law that would be created would actually be against her and adverse to GC in general.

SP going to the EAT level on a corrupted evidence base isn't the positive some people are counting on.

I beg (respectfully) to differ somewhat, again, on the detail. Just to give an alternative view.

We are hoping the law says what we think it says and that even on the bad facts the ET found that SP wins.

But if she loses an appeal because of the facts, then a future case is still distinguishable, on the facts. The EAT could say “the law applied correctly is as follows, and had the facts been like this then the appeal would succeed, but the facts are like that and the appeal is dismissed.

That could still be a victory for team GC. Or, in fairness a loss.

Your point about the unlikelihood of a cross appeal is good. But I doubt the EAT will rule on the appealable elements with such a razor fine judgment that what it says will have no applicability to the parts on which SP won. It’s just too bound up all together.

Again, just another point of view.

I would expect the EAT to decide that the tribunal got the law wrong - that a women's changing room is for biological women only and NHS Fife should not have allowed Upton to use it, not matter how good he was at applying lipstick. If the EAT thinks the tribunal got the law right, I would expect SP to appeal to a higher court and keep going, all the way to the SC if necessary, until the courts get it right.

Once that decision is made, that automatically overturns some of the tribunal's findings of fact as they are based on their incorrect interpretation of the law. It is possible the EAT could leave the rest alone and decide the case based on the tribunal's findings of fact, but it is my view that this judgement is so bad and so clearly biased that the EAT is going to have to send the case back to be heard again.

Every single invented quote, every quote altered to hide what the judgement being quoted really said, every misunderstanding of the evidence - they all go one way. They are all in favour of Fife. Add to that the fact that the tribunal bent over backwards to give Fife's witnesses the benefit of any possible doubt and declare them credible despite the disclosure failures and other clear problems with their evidence, the fact that they found Sandie to be not credible on flimsy grounds and their dismissal of the expert evidence on extremely flimsy grounds, and I think this is one of the most biased judgements I have ever read.

To be more concrete on the ideas about who might appeal what, I doubt NHSFife will cross appeal the second, third, fourth elements of the judgement, about the length of the investigation, the instructions not to discuss the issue, etc. Nobody really cares about those, that’s just money, now. But they might cross appeal the idea that they should have removed DU from the CR at all.

I still can't get my head around Kemp being this reckless. In handing down this baffling judgment he's put at risk a reputation he built up over many decades. Either he's taken leave of his senses or is expecting some remarkable pay-off we're unaware off.

I guess that what I'm trying to say is that this is such an almightly fuck up that trying to predict that there'll be a path to an outcome we'd be happy with is a very uncertain business indeed. In general, in assessing where an appeal might go it's uncertain enough when things are far far more straightforward than this mess.

@prh47bridge but it is my view that this judgement is so bad and so clearly biased that the EAT is going to have to send the case back to be heard again.

Assume that the EAT agrees the law is clear and the ET got it wrong. If that decides the appeal for them, will they care about bias? Is it open for them to say “the ET was biased against the claimant and the case should be reheard, but for the fact it doesn’t need to be, because on any interpretation the claims must succeed”? At which point NHSFife have to ask the CofA to remit back to the ET for a rehearing?