Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton, following Employment Tribunal judgment - thread #62

[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 and it was reported on 3 August 2026 that leave to appeal had been granted with an expectation that the appeal proceedings could take place in court early next year (2027).

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

Thread 61: mumsnet.com/talk/womens_rights/5472628-sandie-peggie-vs-nhs-fife-health-board-and-dr-beth-upton-following-employment-tribunal-judgment-thread-61 8 January 2026 to 3 August 2026

I couldn't remember why the evidence of the expert witness re messing about with the 'contemporaneous' notes on DrU's phone was rejected, so I went back and read the relevant bits of the judgment.
EMPLOYMENT TRIBUNALS (SCOTLAND)
which I found with some difficulty as his name is Borwick not Borthwick.

The judge thought that he has overstepped the mark when giving evidence, giving the impression that he was 'advocating matters for the claimaint' instead of sticking to the facts.

659.... He accepted in hindsight that his comment that the second respondent was silent on the fact that the notes could be rearranged suggested that the second respondent was trying to mislead the Tribunal was irresponsible as it did not have a factual basis. We were concerned that that remark indicated that his impartiality was compromised, as it appeared to us that he was essentially advocating matters for the claimant. His comments in his report as to the fairness of the respondents producing evidence themselves, including not by the instruction of a forensic witness to do so independently, was he thought fair comment but again in our view goes beyond the proper province of a skilled witness and was not impartial. The fairness of matters is not a matter for such a witness, but the Tribunal.

But some of his evidence was accepted
661. Taking his evidence as a whole, we concluded that the challenges to his reliability did not succeed completely. We did not consider that his impartiality had been so undermined that his evidence was to be disregarded entirely.

I can't quite get my head around what exactly the judge did accept
662. The area of his evidence we did accept was exactly what note, or part of a note, had been created on which date and at what time.... [there's lots more to 662]

because if he accepted that the dates of creation of the notes were dodgy, did that not at the very least cast doubt on DrU's version of events?

Question for @prh47bridge or anyone else; given that the NoA doesn’t invite the tribunal to overturn any of the findings in favour of Upton, can (or must) the EAT do so of its own volition, should it agree with any of the grounds of appeal which would allow (or otherwise require, for consistency) it to do so?

This is a question (if I remember rightly) we discussed about whether permitting someone to do something could be harassment without the act itself being harassment. If the EAT holds that (per ground 1) NHSFife had no lawful power to admit Upton to the female changing room at any time, can they leave alone the finding that Upton didn’t harass Peggie by being there?

@MyAmpleSheep - Absolutely not.

The EAT will hear arguments from both sides on the grounds of appeal. They will not hear any other arguments. Even if they think that upholding ground X means that a decision in favour of Upton must be overturned, they cannot overturn it. Sandie's lawyers won't have argued for that and hence Upton's lawyers will not have had any chance to argue that the decision in his favour should stand whatever they decide about ground X. It would therefore be clearly procedurally unfair if they make a finding that has not been argued for in the hearing.

Since Sandie's lawyers do not appear to be arguing that Upton harassed, Sandie, the EAT cannot make any finding on the matter.

I'd forgotten ground 14 covered the slip rule. So I agree that's not relevant to my point as it stands.

However, if there were no appeal the slip rule would still have been misused. That's my point about needing a process separate from the appeal one, separate from whether the judgement was correct (as in FanOfBen's 'the fairies told me the answer' example; nobody disagrees with the result but a judge taking direction from the fae should not be let loose on any further cases).

And there may be no problem with taking action about the admitted hallucinations, but will it be taken? And what actions are possible? That should be a transparent process, not just a 'you'd hope someone will have done something'.

As for the idea that his personal embarrasment may be sufficient, I'm not sure someone willing to be that blatantly, publicly, pompously wrong is capable of feeling embarrassed.

I am very wary about easy-to-engage processes to punish or censure judicial figures. To remove a high court judge (rightly) takes a vote in both Houses of Parliament. Any process to punish judges can easily get subverted and in an instant we no longer have an independent judiciary.

I think think this misuse of the slip rule should receive the equivalent of "retraining", and the made-up quotes need a quiet word from the President of the ET. I also don't see obvious bias in the judgment, even though I think it was wrong rising to the level of incompetent. The remedy for that lies at the EAT.

Even without direct arguments on bias, Sandy Kemp is being publicly held up as a right old idiot in what’s probably the most widely publicised ET in Scotland. Two expert London barristers, one a KC, will spend the best part of a week pointing out the exact nature of that idiocy. The English press may be slightly more reticent but their Scottish peers have woken up to the fact that GC women read and click on articles and will be publishing at a rate of knots. His neighbours, golf club, bridge club, bondage appreciation society, church, synagogue or mosque will all know. He’s a man who once said that he wanted to make a real impact on the Scottish tribunal service and he is probably now wishing he phrased that rather more carefully, perhaps inserting the word positive in there.

For the system to work well yes, absolutely, I’d like the higher ups to pay more attention and introduce compulsory retraining. I’m hoping Alexander Kemp has learned his lesson.

bondage appreciation society
Lol

Did anyone watch Michael Foran's Q&A today? If so, any interesting tidbits?

In his shoes I'd be tempted to try and slope into retirement quietly. Having qualified as a solicitor in the early 80s he's got to be close to 65 at least. Old enough that it wouldn't be odd.

No, I didn’t have a chance to unfortunately; but I’m going to have a quick at X to see if anyone is discussing it.

I watched most of Michael Foran’s Substack today, but it said my internet connection wasn’t good so I missed bits. Although he did answer a few questions it was mostly his thoughts on the grounds of appeal.

He said the Kelly v Leonardo appeal would probably be at the end of this year and Peggie v NHS Fife next summer. I think.

I can’t comment on what he said but will be better placed to do so when I watch the recording. If nobody else here watched it, ask away and I’ll bear the questions in mind as I rewatch it.

He also said that he’d answer more questions later (in an article?, can’t remember) but will be busy soon as Term will start.

You can also read his article here entitled “Single Sex Spaces in the Workplace Following For Women Scotland” which is to be published in a forthcoming Industrial Law Journal. It was written in May and last revised a week ago.

Thanks, @AugustDieSheMust. That’s really helpful. I didn’t find much on my quick scan of X last night, not yet anyway, but hopefully some links and discussion will be popping up soon.

I listened to it (whilst painting and doing various other multitasking). I think a lot of what he said regarding the appeal has been discussed on here.

My abiding takeaway was that the judgement was wrong on many counts, and I'd be really surprised if the appeal fails. I know we can't take anything for granted, but that is my feeling.

I also noted his comment about the Kelly appeal being later this year. I'm not sure if he is privy to information we're not, as I don't think an update regarding an appeal has been announced. But that will definitely be one to watch as it was another one where the judge seemed to get it badly wrong, and the outcome of the appeal will set a precedent.

Maria Kelly was generally very private around the initial tribunal. I don't think we knew her full name until shortly before the case began, and she requested that the trans identifying colleagues weren't named at all. I'm guessing she will not be courting very much publicity before the appeal takes place. Hope we can get front row (online) seats to the appeal hearing though!

If recall correctly we were surprised the MK and SP judgments were issued so close together and wondered if had been co-ordinated.

I have absolutely no evidence for this but is it feasible the judge in MK was the colleague who provided the erroneous quotes from case law to Judge Kemp?

The interesting bit I got from Foran's update which I hadn't heard before was the stated reasoning behind the judge's rejection of the ground 13. It's now up on Tribunal Tweets too.

There seemed to be two bits.
Re bias, he was taking the sheer scale of the judgement as indicative of a sincere attempt to tackle tricky legal issues ruling out bias.
Re procedural irregularity, Tayler seems to be seeing asking a colleague as parallel to reading a textbook or article, and that it was an understandable mistake to make to think the colleague was verbatim quoting a case when they were summarizing the legal questions involved. He seems to be saying that the point of the quotation was not changed or made inaccurate, which is odd when we can see at least one that made it seem to mean the opposite.

Foran seemed to think various points in this were challengeable, not least that this is just one invented scenario as to how the misquotes got there and other possibilities are arguable.

The reasons for allowing the appeal, given by HHJ Tayler, refer to the Kelly appeal: suggesting the two appeals are heard together, one is stayed pending the determination of the other, or they both proceed independently. So that’s some sort of update about the Kelly appeal: it has already been sifted and will proceed.

Tayler also made the (good, I think) point (re: ground 13) that tribunal deliberations are private and the requests put to the EAT to enquire of the ET about the background behind the deficiencies in the Peggie judgment were in the manner of a fishing expedition.

He seems to be saying that the point of the quotation was not changed or made inaccurate, which is odd when we can see at least one that made it seem to mean the opposite.

I think what he said (without going to check) is that getting a quote wrong even to the extent of inverting it is an error, but not bias.

He doesn’t seem to address the point that all the inaccuracies and errors in the citations seem to favour one party.

What was the nature of the "fishing expedition"? Was it the part that is redacted?

No, the fishing expedition is the bit set out by @MyAmpleSheep - the attempt to find out the identity of the judicial colleague from whom Kemp got the hallucinated quotes and get hold of the communications - paragraph 44 of the grounds.

No, he doesn't address the misquotes all going one way. However, Sandie's team have failed to argue that the misquotes had any effect on the outcome. Whilst the judgment misquoted Forstater and Lee v Ashers Baking (43.1(a) and (b)), the principle set out in the hallucinated quotes was correct - there is no hierarchy of protected characteristics. Similarly, whilst the quote from Eweida (43.1(c)) was incorrect, the principle it set out was correct. It is therefore difficult to see these as supporting an allegation of bias.

With respect to the remaining quotes, Sandie's team have not argued that these led to the ET misdirecting itself as to the law.

Where I depart from Tayler is his statement that paragraphs 43.3 to 43.9 were about the language used by the ET. That is not at all what the paragraphs we can see say.

Paragraph 43.3 complains that the ET treated acknowledging the biological sex of a trans-identifying man as inherently transphobic. That is clearly not about the language used by the ET.

Paragraph 43.4 is redacted.

Paragraph 43.5 is about the ET minimising Sandie's evidence of being sexually assaulted. I guess you could argue that this is about the language the ET chose to use in its judgment.

Paragraph 43.6 is about the ET treating the right of women to single-sex facilities as conditional on disclosing past sexual abuse. That is clearly not about the language used by the ET.

Paragraph 43.7 is about the ET finding that it was unreasonable for Sandie to regard Upton as a greater risk to her than another woman. That is clearly not about the language used by the ET.

Paragraphs 43.8 and 43.9 are redacted.

It looks to me like Tayler has mischaracterised paragraphs 43.3 to 43.9, which therefore undermines his reasons for dismissing them as not being arguable. Note that I am not saying they are arguable, but I think better reasons than these are needed for dismissing them.

I'm imagining the rule 3(10) hearing: "You've got twenty minutes, Mr. Cooper - make it good."

I still don't think there is evidence of bias.

I'm not sure I know enough to know what evidence of bias would look like it there was any. If enough of the "alternatively, perverse" bits of the earlier clauses get through does that help the appearance of bias clause?

If a load of judicial people have been misled by incorrect training delivered by biased organisations into thinking the law says things it doesn't, and the judgement reflects a number of those invented rules, is that evidence of bias or of widespread misunderstanding of the law? It's not like anyone sets out to be deliberately biased. Otoh it is the judge's job to ignore third parties and base his conclusions on the actual law, and the SC judgement waved a big red flag in everyone's faces that there had been misunderstandings.

Bias has been argued as a standalone ground. Unless it is in one of the redacted sections (which is unlikely), they haven't asked for a finding of bias based on the other grounds. So, as things stand, even if all the other grounds succeed that would not lead to a finding of bias.

Incorrect training leading to judges misunderstanding the law is not evidence of bias. In order to succeed with a claim, you have to show that the members of the tribunal had a direct interest in the result (e.g. they stood to benefit financially from the decision), or that they allowed their decision to be influenced by personal prejudice, or that a fair minded and informed observer who looked objectively at the conduct of the tribunal would conclude that there was a real danger of bias. To give an extreme example, if the tribunal had refused to allow Sandie's team to present the main elements of her case but had given Fife/Upton free rein, that would be evidence of bias.

I'm assuming some of the redacted bits relate to Dr U who isn't appealed directly so doesn't get the chance to defend himself.