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

Sorry, should first have said thank you again prh47bridge, really appreciate you taking the time.

Yes thank you, your posts are easy to read and explain complex law to the laywoman

Placemarking with huge thanks to the indefatigable @nauticant. Proud to be a member of both the longest-running threads on MN <waves at all the other disguised Archers devotees>

<cough>

Our Christmas countdown / bargain threads (yes, I know, they're not everyone's cup of tea) have been running for well over a decade now. They obviously get re-numbered each year, but we're very longstanding!

Just musing. Might the Kelly judge be the unidentified judicial colleague that Kemp consulted? If so it will be interesting to see what the appeals of both cases bring.

Kelly judge was Michelle Sutherland. I remember at the time something felt very off, in that her judgment was rushed out very fast and Big Sond's took ages and came a short while after. We speculated at the time on whether this was a planned sequence of events.

Maybe they consulted (and trusted) the same source.

I stand duly corrected, Fluffy 😁

@prh47bridge "If you go to a road traffic accident case, you will often find that the only witnesses are the two drivers and that there is no other supporting evidence. The judge still has to come up with a decision and find some way of justifying it."

A substantial part of this case was about what went on in the changing room that Christmas Eve and is effectively "He said, she said". The whole judgement to me smacks of I've made up my mind, now how can I possibly justify it. I would not see evidence of bias if the judge had said he saw problems in the evidence from both Sandie and Upton - there were. But his attempts to justify his decision still seem to me biased - from describing Upton us "credible" to saying Sandie was at no more risk from 6 foot plus ex rugby playing Upton than from another woman to criticising an expert witness to fabricating a quote that reversed the meaning.

I agree - I totally accept that judges gotta judge and they are human and there's an unavoidable degree of subjectivity in their decision-making.

But deciding that Upton, with his loose interpretation of biological facts, his cavalier attitude to patients' rights and dignity, his attempts to undermine the professional reputation of a colleague, and the as-likely-as-not possibility that he falsified his 'contemporaneous' notes, was a more credible witness than SP, is beyond comprehension.

Could 'any fair minded and informed observer' who 'looked objectively at the conduct of the tribunal' say DrU=conclusively credible enough to accept his version of a he said/she said encounter?

Well I'm crawling my way through most of the judgement and it's the little things that are getting to me - like the lay members saying of course Sandie would have changed in the toilet, next to the one occupied by Upton, ignoring that while she may do this at the end of a shift she was mid shift and for infection control reasons should not have been putting new scrubs on in a toilet. So they assume she was waiting to confront him instead of actually waiting for him to leave.

Then if Upton was really sympathetic to Sandie and/or finding the conversation distressing it was accepted that he had walked around her and could have easily have left the room. But he didnt. The fact that they dont mention that is one of the things I see as bias.

Cant edit that again so - we then go on to Upton contacting a friend because he's scared he might run into Sandie again. He is, of course, so sympathetic to her distress that it does not for a moment occur to him that he might change elsewhere.

And my next one - Upton's complaint about Sandie leaving the changing room is seen as " a careful and considerate response to the situation as it developed" but there is no mention of Sandie staying outside the changing room as being a considerate way to deal with the issue. She was being professional - he was complaining.

She went back to work and was not visibly distressed later in her shift - this is seen as a sign she was not that upset despite her comment to a friend later that she was "shaking" . A professional nurse with a lot of experience is in effect criticised for being professional. Upton runs complaining to his supervisor and turns on the tears. No-one else saw a distressed doctor running around looking for his supervisor, the tears started when he got there.

Then they talk about Sandie "proselytizing" when she was defending her legal right to single sex facilities. Upton imposing his view of his identity on unconsenting women is not "proselytizing" though.

Paragraph 1022 especially irritates me - a discussion of power imbalance that does not mention the imbalance between a male doctor and a female nurse and talking about the "intrusion on the rights of others" without any comment on Upton's intrusion.

Paragraph 1035 The Trusts policy is that colleagues should attempt to resolve issues themselves. I'm not sure whether the Tribunal were told this.

Just got to the bit where they say that Upton not leaving when he had the chance was a good thing because otherwise he might be said not to have listened. He claims the conversation went back and forth several times and the Tribunal accepted that. If it had he could have left after he first said it wasnt the right way to raise it. If they went over the same ground several times he had several opportunities to leave.

That is a good summary of where my mind has been at.

“paragraph 1035 The Trusts policy is that colleagues should attempt to resolve issues themselves. I'm not sure whether the Tribunal were told this.”

I’m fairly certain this came up in the tribunal, even if not explicitly - I think that there was some discussion between ourselves on the relevant thread at the time about Sandie being incorrectly blamed for doing what she was supposed to do.

In the same vein, didn’t Dr U admit there was no way SP could raise the subject that would have been acceptable to him? Or am I having (yet another) senior moment?

It did, and he did. You're remembering correctly.

I'm on to 1258. "That was evident from the second respondent’s position after the Christmas Eve incident that did not seek to insist on using that room to change. " Actually he girded up his big pants and did on at least one occasion. I see the Tribunal misrepresenting the truth as an example of bias.

The other bit is that while they did, rightly, point out that there wasnt really evidence of patient safety concerns they didnt criticise Upton for making unsubstantiated allegations.

“Just got to the bit where they say that Upton not leaving when he had the chance was a good thing because otherwise he might be said not to have listened”

I do understand that this is unlikely to be a lawyerly definition of bias, but really, it’s hard not to see making up hypothetical outcomes as a defence of Dr U’s behaviour in any other light 🤔

They do go in to some detail as to why they regarded Upton as a more reliable witness and is essentially based on the idea that Sandie was lying in wait to raise the issue with him. There were 2 other people in the changing room initially and there is a dispute over when they left. They point to inconsistencies in Sandie's statements and oral evidence. Of the 2 other people who were initially in the changing room one gave evidence she couldn't remember what Upton was wearing. This was taken as confirming that Upton was not changing out of his scrubs after using the toilet, as Sandie said, but had done so before the women left. They thought the woman would remember if he hadnt changed by then rather than thinking that maybe "I dont remember" is either true or I'm lying about it.

@Veilsofmorning To be fair to the Tribunal that was Dr U's excuse for not walking out.

Sorry. My misinterpretation.

It's the proselytising that got me. It's such an outlandish take on the clash in the changing room. You'd have to be really blinkered to read what Sandy said as proselytising.

It's something akin to DARVO by proxy.

Agree. And any judge who could overlook that insane way in which the hospital IT guy dealt with Dr U’s phone (5th best option thank you Charlotte Elves) and refuse to condemn Upton’s inadequate attempts to hack the system on the basis of a couple of exclamation marks is surely biased (though I accept that I am not a neutral observer). To Sandy Kemp I say:

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!