Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton, following Employment Tribunal judgment - thread #61

[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 #60 can be found in this thread: mumsnet.com/talk/womens_rights/5379717-sandie-peggie-list-of-threads-covering-employment-tribunal-and-afterwards

Thread 60: mumsnet.com/talk/womens_rights/5461133-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-following-employment-tribunal-judgment-thread-60 16 December 2025 to 8 January 2026

There is a limit to how much the Scottish courts can differentiate themselves. They can differentiate where the law is different in Scotland, but on UK-wide law such as the Equality Act they are ultimately answerable to the Supreme Court and must follow its precedents. I can't see any way Peggie loses if this case has to go all the way to the Supreme Court, and I would hope that their judgement would contain the phrase, "with the greatest respect" multiple times - judicial code for "you are an idiot and what you have said/written is complete nonsense". However, I hope it doesn't have to go that far (although, if the EAT rules in her favour, I would still like to see "with the greatest respect" in their judgement - that would put Kemp firmly in his place).

@prh47bridge - I’d rather they said were referring him for retrianing since you’re not supposed to use hallucinogenic AI or colleagues who provide hallucinations of AI.

But I know it’s not realistic.

How dare he misuse his judicial power to deny Peggie justice. And the President cover it up.

She’s still not back at work in a job she loved.

As well as the general stress of the delay, I worry this endless delay is going to cause problems with maintaining her registration. And potentially her pension entitlement as well - she's certainly already losing on payments into that, but if she's not in an NHS nursing role at 55 she'll also lose the first 5 years of it paying out.

The final award ought to take all that into account, but I fear the vagaries of the NHS pension scheme are beyond judicial knowledge.

I understand but I'm afraid you won't see that in any judgement. None of the courts have the power to refer a judge for retraining.

Sandie's team will submit a schedule of loss setting out how much compensation she is claiming and how it is calculated. The judge won't need to understand all the ins and outs of NHS pensions. It will be for NHS Fife to challenge if they think the figures are wrong.

I know (IAAL) but I have the odd fantasy.

I came across this... https://www.lawgazette.co.uk/news/judge-refers-solicitors-to-sra-over-inexcusable-submission-of-ai-generated-authorities/5126797.article

If it's inexcusable for a solicitor, cannot a Judge be taken to task? I am wondering how this might be done?

People can (and in this case have) complain to the Judicial Office for Scotland. They will investigate and, if the complaint is upheld, can give the judge formal advice, a formal warning or a reprimand. In more serious cases they can recommend suspension or removal from office. As far as we can tell, no action has been taken against Kemp or the other members of the tribunal at this stage.

I think there were a lot of complaints at the time of all the corrections. And it was said that it was “investigated” and AI hadn’t been used. It was Kemp’s “colleague” who had the legal hallucinations. Michael Foran has commented that the mechanism available to correct typos was used to correct more substantive errors and that this might be legally unsound. How could that be checked?

I read SP’s judgement but have only read summaries of the others.
Am I right in thinking the interpretation of the law around single sex spaces by the judges in the 2 Scottish cases (SP and MK) was opposite to the judges in 2 English cases (Darlington and Faye)?
Scottish judges saying there was no legal right to exclude people of opposite sex and English judges saying they must be for one sex only?

That is a matter for appeal, as are all the legal errors in the judgement. It wouldn't generally be considered a disciplinary matter.

The two Scottish judges were bonkers in some of their decisions.

Small circuit 25 judges. It has been confirmed by the President that Sandie Peggie’s judge has assistance from a judical colleague with his judgment.

Maria Kelly’s judge rushed out her judgment in record time just ahead of Peggie’s.

She might have had some spare time.

Wow. In my line of work significant errors that impacted on the safety of others would most certainly be considered a matter for disciplinary action. DH’s regulator investigates all sorts at the drop of a hat! The powerful really do look after themselves dont they

The point is to protect the independence of the courts. If a judge gets the law wrong it is for the higher courts to correct them. If it was handled by a disciplinary process, the government could usurp that to impose its interpretation of the law.

Ah good point

We're certainly at a point where we need to protect the independence of the courts.

That really only works when the Judiciary conspicuously display exemplary behaviour. Because Judges are “above the law” public confidence in justice demands that when we get a judgment we don’t like we can at least believe that it was reached through a proper process by competent people acting with integrity. So much damage is done by judgments like Peggie.

Yes and not only that, but if a number of judges are producing such shoddy work and there's no clear sanction for it, they will presumably move up the hierarchy and some will eventually end up in some of the appeals courts that would previously have corrected the mistakes of the lower courts. And why would they start doing better work AFTER having been promoted?

Kemp isn’t going anywhere higher.

He should have been fired. Or retired - however they do it.

You’d hope not! But he was grand until he crossed swords with the Great Naomi Cunningham (all hail!) which is why I said it was also a matter of numbers - if there’s enough bad publicity when such mistakes are made that may have an effect. But not everyone will be defended as Sandie Peggie was and not will there always be the public interest in a case for people to become aware of what’s going on.

So I would worry that gradually more and more of them will rise up the system from the benefit of age if nothing else - and then the corrective effects of the higher courts will be reduced or lost.

I mean, look at how far the capture of the police and healthcare systems has gone. If it can go to the top with them there’s little reason to think it can’t possibly happen with the justice system.

They could have an independent disciplinary process. It shouldn't have to rely on those who have the resources to appeal.

There is an independent disciplinary process. It is not there to deal with a judgement getting questions of law wrong. It is there to deal with bullying, use of offensive language, aggression in court, misuse of judicial status and so on. You seem to be suggesting that it should somehow intervene when whoever is in charge of the disciplinary process disagrees with the judge's decision on matters of law, allowing them to overturn that decision without bothering with an appeal. Be careful what you wish for. If someone who agrees with the arguments put forward by TRAs (some of whom are lawyers who believe that Kemp was right in law) was appointed to oversee judicial discipline, they could overturn the Darlington decision and other similar decisions, disciplining the judges who produced those decisions. Indeed, they would have been able to overturn the Supreme Court in FWS and discipline the judges. What happens then? If the courts are not the final arbiter on what the law means, how do we overturn the decisions of the final arbiter if we disagree with them or they get it wrong?

There will always be instances where judges in the lower courts get things wrong. If that were not the case, we wouldn't need the higher courts. I agree that sometimes this means that people don't get justice as they can't afford to appeal a bad decision. But providing some other mechanism that can overturn judgements and discipline judges for producing judgements with which they disagree compromises the independence of the courts and ultimately allows the government of the day to use the courts as a tool of state.

Is Kemp wrong? Yes. His written judgement is poor, makes numerous errors of law in my view, and he has misused the slip rule in an attempt to fix the problems.

Does that mean we should overturn the entire system and hand over decisions on matters of law to some independent disciplinary process that can take action against judges that produce interpretations with which they disagree? Absolutely not. Questions of law must always be decided by the courts and only by the courts. The government can change the law if they disagree, but they should not be able to manipulate the courts and we should never do anything that might enable them to do so.

Kemp was never going to go any higher in the system.

On a more general point, no judge likes to have his judgements overturned on appeal, particularly if the higher courts use terms like "with the greatest respect". Most will learn from the experience and do better in future. But if they continue to get things wrong, they will not be promoted. There is no automatic promotion.

The Supreme Court is the best judicial minds we have. Most judges will never get anywhere near it.

Also, the way precedents work means it is now very difficult for the courts to become captured. Unless the government changes the law, the Supreme Court decision in FWS can only be overturned by the ECHR or the Supreme Court itself, and the Supreme Court will only overturn its own decision in very limited circumstances.

@prh47bridge

I agree re judgment content.

But use of hallucinations in AI and judical colleague isn’t about a poor quality judgment.

It’s a judical conduct issue.