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

My view is that ground 1 should be a slam dunk, especially given findings by the courts since this judgment. Most of the other grounds follow on from that to a greater or lesser extent. I can imagine the EAT not upholding ground 13 (I'd love to know what the redacted parts of that ground are about!), but I would expect most if not all of the others to succeed assuming the EAT agrees with ground 1. That won't overturn the EAT's findings of fact, e.g. their decision that Upton is a credible witness and their dismissal of the expert's evidence re the mobile phone data, but it will give Sandie a comprehensive win, possibly a clean sweep on all her claims. The only way the findings of fact will be overturned is if the EAT decides to send the case back to the ET so that we start again from scratch.

I'm still enraged that Mr Borwick was so unjustly maligned!

I think of him often when committing important records to Google Keep Notes, safe in the knowledge that the dates, times and changes are all tracked so that contemporaneous means contemporaneous if they should ever be called on as evidence. 😂

Looking forward to observing the whole hearing if possible but hope we will particularly enjoy the final Ground of Appeal 14:

the ‘Improper use of power to correct clerical mistakes and other accidental slips under rule 67’ related to the two revisions.

A very comprehensive appeal. I have to be honest and say I didn’t realise Judge Kemp used 100 sources not provided by either the C or R/s to reach his judgement.

I can see the appeal overturning the judgement on the grounds of perversity and having a fresh ET.

Yeah The Fifer feels very strongly that "Thon Speccy Loddie" didn't get a fair slice ae the tumshie. bit eftir aw that's the wey the jobbie plops. Some time ye get a wet erse.

In fact, the sift judge Tayler rejected Ground 13, they've asked for a rule 3(10) hearing on it.

Juicy.

Indeed, so it isn't clear at this stage if they will even be allowed to put ground 13 to the EAT.

I've restricted my use of exclaimation marks! (Sometimes, in an official capacity!)

Still the most ridiculous reason to doubt an expert witness....

Covered in the Telegraph (hopefully this link will work):
https://www.telegraph.co.uk/gift/cea9ab6f91d180fb

Archive version: https://archive.ph/lBmJ0

But they've got an entire hearing to argue about bias.........so there's that.

Sandie Peggie’s lawyers pursue ‘bias’ claim over tribunal verdict

https://www.thetimes.com/article/1c17d504-6c23-4c36-9859-b07366792423?shareToken=a97e1ada3238f5f9bff48bec58eb23e2

I'm hoping the Streisand Effect will be engaged by the G13 rejection.

MG seems to have very good press relations, hopefully they will be all over any pre-hearing, ready to rehash the ridiculousness of EJ Kemp's Christmas pantomime.

IANAL and have a very low tolerance for legalise, but surely you have a right to face your judges. If this AI legal colleague of Kemp helped him draft the judgment surely Sandie Peggie has a right to know who that person is!

The decision should be taken only by those who hear the case. The judge can discuss hypothetical scenarios and legal concepts with colleagues, but that is all.

If the judicial colleague in this case influenced the judgment in any way, that was improper and should lead to a successful appeal.

If the judicial colleague raised any new legal points, authorities or arguments that had not been raised in the hearing, the tribunal should have given all the parties the opportunity to address them. Note that ground 12 for the appeal includes a complaint that the tribunal relied on more than 100 authorities that neither party had cited without giving the parties any opportunity to make representations.

So no, Sandie does not necessarily have a right to know who this person was. However, this person should not have made or influenced any of the decisions in this case.

That's quite the list of 'wrong (alternatively, perverse)'. And a nice sprinkling of 'irrational' and 'nonsensical' for variety.

Any competent judge ought to cringe himself inside out reading such a list of failings. Whether they're ultimately upheld or not, simply the fact that the judgement left room for them to be reasonably argued is shockingly poor.

From the Dundee Courier -

https://www.thecourier.co.uk/fp/politics/5568329/sandie-peggie-ai-appeal/

For those of us who aren't really of a legal bent, can we have an explanation of what "perverse" means in this context? Is it the judicial equivalent of "not even wrong!"?

A decision a reasonable tribunal directing itself properly couldn't have made on the evidence in front of it:

https://www.employmentbarrister.co.uk/eat/what-is-a-perversity-appeal-in-the-employment-appeal-tribunal-and-how-high-is-the-threshold

AKA: batshit.

I think 'perverse' is more likely than merely 'wrong' to lead to a full retrial rather than the EAT simply going over the points of law.

A decision being perverse does not necessarily lead to a full retrial. If the EAT thinks there is only one possible outcome based on the ET's findings of fact, they will simply change the decision. They will only send it back to be reheard from scratch if they decide that there is still more than one possible outcome.

Whilst sending it back for retrial means the ET's findings of fact could be overturned, it is not guaranteed that will happen and it is possible the new ET would find in favour of Fife and Upton on different, legally acceptable grounds (although I can't think what those grounds would be).

The EAT may order a retrial with a different tribunal, but I think it is unlikely. Even if we accept the ET's findings of fact (at least some of which I think were perverse given the evidence), my view is that there is only one possible outcome given the law as it stands. If the EAT agrees, they will not send it back to an EAT. If the outcome would be the same regardless of the findings on Upton's trustworthiness, etc., there is no need for a retrial.

That boils my piss to this day. He proved that Big Dr Ted’s evidence was tampered with and they basically openly accused him of bias?
I can’t believe they just moved on from that!

The despite the claim of 'contemporaneous' was utterly destroyed by Mr Borthwick but Kemp still claimed he found Upton to be credible and truthful. This is putting all the 'biological female' nonsense to one side.

Isn't the sift judge the same judge who found against Maya Forstater in the ET?

Yes, His Honour Judge James Tayler was the judge for the tribunal that got Forstater wrong. Not sure that has any significance here. The only ground he has ruled out is ground 13, bias. The question is whether the matters raised are enough to give an arguable case that the ET was biased rather than incompetent. I would not regard myself as a neutral observer, so I don't think I'm the best person to say whether the points raised in support of ground 13 are enough to give an arguable case. That is now a question for a rule 3(10) hearing where Sandie's team will try to convince another judge that they do have an arguable case for bias. Note that rule 3(10) hearings are generally short (20-30 minutes) and only hear arguments from one side, so Fife and Upton wouldn't be represented there. Note also that success in this hearing doesn't mean that Sandie's team have proved their was bias, just that they have an arguable case.