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

If Kemp asked another judge for help in understanding or explaining the law around trans individuals and toilets, that is ok. If he asked for advice as to how he and the other members of the tribunal should decide this case, that is not ok.

The judiciary are not a homogeneous blob, so I am not sure generalisations are particularly useful.

Cases are also discussed far more than the general public may think. For example "X has made Y application in relation to evidence Z. What are your thoughts?" is a perfectly common question between judges. As with any area of life, discussing a point with someone else often helps crystalise your own thoughts.

Is it possible that another colleague may influence a judge in relation to how to deal with a particular question? Of course.

However, that provides no excuse for the use of AI quotes. As I said before, the judgment is solely the responsibility of the judge, and "well I discussed it with colleagues" is not a defence, or indeed an explanation.

I am not sure if it has been mentioned already, but a barrister was recently sreferred to the BSB for using fake cases from AI (and then lying about it):

Legal Cheek

I wonder if Kemp may find himself in hot water in the future.

The response to the complaint was that Kp did not use AI - he got the made up quotes from correspondence with a judicial colleague. In other words- another judge made up the quotes and sent them to him. So not only did he not check them, another judge is also making up stuff.

If it is being accepted that the made up quotes were supplied in correspondence, that suggests that the standards board have seen the evidence. That would surely give them the name of the colleague, but should that person be disciplined? I know judges ask others for opinions over lunch, etc, but presumably they give them without responsibility if they are wrong. If they are providing legal analysis on paper, hard to say if they have responsibility or not, but the board now know to be wary of them (probably already are)

At the risk of sounding pompous, there is that phrase: "Not only must Justice be done; it must also be seen to be done."

And that's fairly obviously not happening in that case. The public has a right to know why fake quotes ended up in a tribunal judgement. Where did they come from? Who made them up? Why were they not checked? Will the people responsible be held accountable?

I think those are all reasonable questions. Sandie Peggie and her legal team have the right to be given answers, as does anyone else who is considering taking an employer to tribunal. Can a claimant be given an assurance in future that the judge in their case will not use fake quotations in the judgement? And that if such a thing did happen, the judge would be appropriately disciplined?

And given we do not know who this other judge is, what confidence can people have in any other judge?

Looking at the replies to Michael Foran’s ‘Interesting!’ comment on the news about the helpful ‘judicial colleague’, one response asks whether this could have been a very very, if not another very, senior one. If so, it could explain why Kemp didn’t feel corrections would be needed or was too scared to make them. But it would also suggest that the EAT will be too scared to deal with the case properly

Of course this was just one of two Scottish cases that came out in quick succession which had similar misinterpretations of the SC ruling. One of which appeared to be rushed out. If that was the other judge….

They seem to be growing these entities in a lab somewhere

The dry rot is deep, isn’t it?

I think this is quite a plausible scenario

Earlier I saw someone actively claiming that because he claimed to be a biological female and Kemp and panel found him “credible”, ergo men being biologically female was a credible position.

Simon Myerson KC says that it’s not OK for a judge to consult another judge who hasn’t heard the evidence or the arguments, so an entirely separate ground of appeal has been handed to Sandie Peggie by the judicial complaints team

https://x.com/SCynic1/status/2012721942697058486?s=20

Again, that's why I wrote above that for a case in involving fast-changing aspects, you don't file the appeal early because there's a chance extra issues will be arising right up to the deadline.

When is the deadline?

Cases are also discussed far more than the general public may think. For example "X has made Y application in relation to evidence Z. What are your thoughts?" is a perfectly common question between judges.

Surely the only answer to this would be ‘it depends on the evidence heard in court and the arguments presented and I have heard neither so can not comment’?

Tomorrow.

That's the logical conclusion, isn't it? If Upton had said "I am a fish" and Judge Kemp found him credible, then logically, we have to accept that humans can be fish.

Quite frankly, I don't find Judge Kemp credible.

No, logically that means Kemp is not credible.

Maybe his fault is that when he came to write the judgment he assumed he's incredible.

In the literal sense of the word, he really, really is. Twonk.

I would have thought that if somebody gives legal advice either

a). They are doing so in a professional capacity and take responsibility for their advice and must face consequences if they for instance make up quotes.

b). Are just giving informal advice, in which case the fact that Kemp got the advice from a judicial colleague is neither here nor there - he is responsible.

But I know nothing about the Scottish legal system.

He has done more than enough to step down already.
His judgement is appalling at every level.

I suspect it would not count as legal advice as such (on which a person might rely to their detriment, hence responsibility).It’s probably more abstract, as informal opinions swapped by lawyers usually are eg., ‘is it better to plead drunkenness or stupidity as a defence?’ What’s unusual about this is, it’s written either in a letter or, more likely, email, and comes with citations. So it’s very beefed up abstract or academic discussion but I don’t think it’s legal advice. However, it is highly irresponsible and unprofessional interference in a civil case.

I suspect it would not count as legal advice as such (on which a person might rely to their detriment, hence responsibility).It’s probably more abstract, as informal opinions swapped by lawyers usually are eg., ‘is it better to plead drunkenness or stupidity as a defence?’

That's my assumption - but then I don't understand why it is presented as mitigating - unless there is much more to the reply to the complaint and context is missing.

Regardless of whether the quotes were hallucinated by AI or a judicial colleague, isn't it Kemp's job to go back to the source and check the relevance to his argument?