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

Since this ET, there has been a ruling by Mr Justice Swift on the Regulations. ETs should treat this as a precedent, so there is now no excuse for them refusing to consider the Regulations.

The difficulty with the HSE is the way their system is currently operating, the likelihood of this passing their current priorities is slim to none.

Frankly, unless there is imminent likelihood of fatalities, by which I mean falls from height, crush injuries, strike by a vehicle, electrocution and so on they aren't enforcing.

Usual issues - lack of staffing, insufficient funding, recruitment and retention issues (I myself left as an Inspector a number of years ago), nowhere near enough Inspectors to cover the entirety of the UK.... Then add on lengthy investigations, the criminal court delays and you're into years between an incident and a sentencing hearing.

A mixed sex toilet fell on a worker’s head, causing life changing injuries, which were exacerbated by the lack of a full height door.

https://www.thecourier.co.uk/fp/politics/scottish-politics/5574230/honour-nhs-fife-chair-sandie-peggie-crisis/

Unlikely as a single incident to bring about mass change across the NHS though.

Unfortunately.

Maybe - alternatively the HSE is like lots of other public institutions which give the appearance of existing but in reality dont so the job they were set up for. Example being the Environment Agency cutting costs so far that they had the water companies self report pollution incidents. Didnt go well. People died after contracting E Coli after visiting the beach where the sewage landed. The HSE used to strike fear into the heart of any builders. Now I suspect they have very few inspectors and those they have dont leave the office… I’d guess the law is perfectly good but no one is bothering to enforce?

Judge Sweeney leaned on the workplace regs in his judgment in Darlington Nurses. 1992 Regulations appear in the judgment 26 times.

In fairness to the HSE they do seem to take a lot of enforcement action in the courts. But looking through the long list of their successful prosecutions , there is case after case of death and mutilation. I saw one case (from July I think) which clearly centred on the Workplace Regs. But it concerned lack of adequate washing facilities for workers exposed to asbestos.

You can absolutely see why they are perhaps too snowed under with clear life-and-death breaches to enforce go to court to enforce single-sex toilets/washing/changing. Even the ordinary requirements of adequate washing facilities were probably only acted on because of the very severe dangers of asbestos. An equivalent level of risk in relation to violation of single-sex requirements would probably need to cite some special set of circumstances - such as, for example, a very fast turnover of large numbers of male employees, and facilities that were particularly secluded.

Of course in an ideal world every violation would be subject to enforcement action, but that would be unrealistic even if our regulatory bodies were functioning extremely well

I suspect the reality is that most cases concerning single sex changing rooms and toilets are resolved without going to court. I would not expect HSE to take an employer to court where they can get compliance via another, cheaper approach.

They refuse to look into the cases at all based on my attempt to report!

im not totally convinced by the life-or-death thing either. They’ve got blurb on lead paint as being a major hazard but they’ve done very little to publicise this to industry - unlike what they did for asbestos years ago. But sure non fatal cases will be given less priority

@KnottyAuty lead paint is a reducing risk over time in that is removed and as it's no longer in use it doesn't reappear in new places.

The Control of Lead at Work Regs were implemented in 2002 but there's a new review underway about the acceptable risk levels of lead exposure (which are highly contentious as it'll affect women more).

So lead isn't a current priority in the work place and has a different health risk from asbestos although both fit into the health priorities for the agency this year.

With the enforcement of some laws it's 'act or omission' when there's a breach. That's probably why Upton backtracked on his claims that Sandie Peggie had neglected patients. He should have reported immediately. As he didn't he'd have been in as much trouble as her. It could be the same with the HSE. They are responsible for enforcement. Lack of manpower, time, money is beside the point. If they're not doing their job they may find they're in the same boat as the companies breaking the law. I'm not sure if it depends on how the laws are worded though, or if it's something that comes with the territory when an organisation is responsible for enforcement.

I suppose one could make a complaint to the HSE and then seek a judicial review for failure to enforce. But I do not know what scope the HSE has to decline to enforce

I wonder if it would be helpful for someone to bring a private prosecution against an employer for breaching the wpr

Hmmm IANAL but my understanding is that the DPP have a statutory right to pick up such a case and subsequently abandon it.

and I suppose one would have to pursue a judicial review of that case abandonment.

i think all cases we have seen and those we do not know about should complain to the HSE for breaches.

surely if they are bombarded with complaints they would have to do something

Yes, the DPP can take over any private criminal prosecution and abandon it.

Whilst it is possible to pursue a judicial review against HSE for failure to enforce (but only after you have exhausted their complaints process), it is unlikely to succeed. The relevant law gives HSE wide discretion to decide how best to allocate resources and whether to issue enforcement notices or prosecute. The courts are reluctant to interfere in any regulator's operational decisions.

Also, to succeed you would have to show that their failure to enforce was unlawful, e.g. it was procedurally unfair, in breach of a statutory duty or irrational. Simply disagreeing with their decision is not enough.

Glad you responded. my only experience of enforcement ( or lack of) was about planning, who refused to enforce, upon my agency, to convert a building to a women’s refuge. The neighbour complained. And the council sensibly used their discretionary powers which was a huge relief.

obviously that would have defeated the object of a secret address.

so I thought a private prosecution would not be a runner on that basis.

discretion and resources has to be a consideration for public bodies.

having said that i think they ought to at the very least issue a public direction on the law.

thanks - yes - I was thinking less about the regular workplace every day situation and more about construction operations where the paint to disturbed.

NHS Fife lose against the Courier (give the Information Commissioner a medal for being the only person in public office in Scotland who seems to understand how to do his job) https://www.thecourier.co.uk/fp/politics/5577500/sandie-peggie-secrecy-nhs-fife-the-courier/

Oh dear!

How sad, never mind!

I have a bit of a crush on David Hamilton. There is a man who pulls no punches and accepts no nonsense from anyone.

Call me cynical but I am guessing a lot of them will now turn out to have been inadvertently destroyed.

As the shredder hums away in the background.

It led to chief executive Carol Potter, who announced her retirement four months later, facing an internal revolt, with angry staff demanding she quit over her handling of the saga.

It's the first time I have read that. I recall she initially said her retirement was nothing to do with the case.

As a side issue, am I the only one who wonders whether Upton was quietly eased out of Fife, or whether he went of his own accord?

Who could possibly have seen this coming.