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

All the errors going one way could simply mean that their understanding of the relevant law is wrong. It doesn't necessarily mean they are biased.

It's not about whether the judgement was correct, it's about oversight of and ability to deal with failures of process or training. In this case made up quotes and misuse of slip rule. On a wider basis possibly a need for training all tribunal judges to ensure they understand Forstater, FWS etc.

To compare with a different professional field, a doctor can be disciplined for incompetence and failure to follow correct processes even if all their patients recover. The NHS has audit processes to identify systemic problems independently of individual outcomes.

My frustration is that Ground 13 seems to be about whether generative AI was used in writing the decision. If it has been denied, then are we able to get a finding on whether it was used and if so, it was incorrectly used.

Forgive me if it's addressed elsewhere in the grounds as I have haven't read the full document, but if Ground 13 is refused, how does this blatant incorrect citing get addressed and then stopped?

Ground 13 – Appearance of bias and/or failure properly to discharge the judicial
function

Thank you @prh47bridge, as ever fascinating insights. Does the second clause of this allow it to be tackled from the angle of incorrect processes even without enough indication of bias? Or is that legalese for something in the bias line too?
Taking it to a hypothetical extreme, if a ET judge went mad and wrote in his judgement that he had tossed a coin to decide who won, would that be appealable as failure to properly discharge the judicial function?

My guess is that the frustration around the rejection of Ground 13 has been the key driver in the decision to publish the NOA at this stage.

You could easily have a case where all parties agreed that the judge decided a case in the right (or, only possible) direction, and yet, that he clearly exhibited bias and failed properly to exercise the judicial function. There could be no appeal then, so what is supposed to happen?

(Imagine a case where (based on evidence given in court, let's say, to account for the case having come to court in the first place) it is completely obvious to everyone which side is right. The Judge, however, slurred his words and repeatedly fell asleep every afternoon, and then wrote a judgment in which he said the fairies told him the answer in his dream, or indeed explained how he tossed a coin repeatedly until it gave him the answer he wanted.)

Thank you everyone and particularly @prh47bridge for these enlightening comments.

My personal "summary" is that poor Sandie is really short of luck in the judges assigned to her: first Kemp of the infamous "Gillian Philip hasn't cried in court about her late husband, therefore she's a transphobe and it's right to sack her". Then Tayler of the " Sex realism is not WORIADS" (Good God how has he not recused himself? The man's been made a laughing stock for his blind adherence to GI how can he be unbiased ?). What next, having Kemp's BFF or the Kelly vs Leonardo judg* presiding over the hearing on Ground 13?

• who could well be the unnamed judicial colleague, in the 1% chance their first name isn't Jay and their last name Minaye.

Hanlon's razor? Never ascribe to malice that which can adequately be explained by incompetence...

Obviously I support Sandie but I was trained to consider both sides of an argument and initially I had sympathy for Upton - I still think he was badly failed by those responsible for his training. The finding that Upton was a credible witness goes beyond incompetence and into bias. The man was shown to have lied about "contemporaneous" notes. He claimed to be a biological female - a claim so far divorced from reality that while you may accept he believes what he is saying no rational person could accept it as true.

Fabricating quotes is not incompetence, it's bias.

Does the appeal touch on the case against Upton himself? The points made seem to be addressing R1. But if you turned the dial on what was harassment of Sandie, and what R1 could legally give permission for, might it bring R2 back in?

Ok, let's take a look at that.

The ET itself has admitted to the hallucinated quotes through the corrections that have been issued, so there is no problem with taking action there. The powers that be may consider that the embarrassment of having to issue the corrections coupled with the pasting he is likely to get for this in the EAT is enough punishment for Kemp, and that he will know that, in future, he needs to check any citations for himself, no matter who provides them. For me, the real question is about the judicial colleague who, we are told, provided these quotes. I would hope that the authorities have identified the individual involved and implemented some form of sanction for misconduct. If they have not done so, I think they should.

Misuse of the slip rule is a different matter and shows exactly the problem I've highlighted. Ground 14 of the appeal is specifically about misuse of the slip rule and invites the EAT to find that the rule has indeed been misused. The introduction to the grounds deals with the possibility that the EAT may decide that the slip rule has not been misused (paragraph 11). Whilst that seems unlikely given the precedents, it is still possible that will be the outcome. So, if the authorities were to sanction Kemp for misuse of the slip rule, that would put us in a difficult position if the EAT decided that he had acted appropriately in this instance. What then should judges do? Listen to the EAT who say it is ok and risk being disciplined, or leave their judgments uncorrected to avoid being disciplined?

And this is the core of the problem. Often people want judges disciplined for matters that can only be decided by the courts.

Ground 14 is about misuse of the slip rule to correct the hallucinated quotes. They are therefore in the appeal whatever happens about ground 13.

As per my last post, Kemp has already had the embarrassment of having to issue two corrections, and he knows he will almost certainly be slated for these errors by the EAT (couched in cautious, judicial terms, or course). I would expect that to be enough to make sure he checks quotes properly before including them in a judgment, whatever the source.

The bigger issue for me is the judicial colleague who, we are told, provided the quotes. The authorities have not identified that colleague publicly, nor have they said that they have applied any sanction. They certainly ought to know who it was and, in my view, they should have applied a sanction. I would hope they have done and simply haven't made it public. If not, I think they should.

I am not convinced that Upton was let down by Fife and a lack of training. He wasn't an inexperienced sixteen year old in a first job; he was educated enough to have a medical degree. There are times when you are expected to know better and to me this seems to be one of them.

I think it's some from Column A and some from Column B. He absolutely shouldn't have behaved the way he did and is a pretty horrifying individual who I wouldn't want anywhere near me if I needed medical care. He didn't create the institution that facilitated him in doing it and there's a decent argument that we should all be able to trust in the accuracy of our employer's policies, especially in a huge organisation like the NHS. They're both at fault.

That said, there does seem to be a trend in these tribunals of unwillingness to find against trans employees who essentially did what their employer told them they could, so I don't necessarily expect any of the findings re Sandie's case against Beth to change.

Procedural unfairness is covered elsewhere in the appeal. The hallucinated quotes will definitely come up under ground 14 and may also be an issue in some of the other grounds. Procedural unfairness specifically comes up under ground 12. Incorrect processes will be an issue in the EAT whether ground 13 stands or not.

Yes, if a judge wrote in his judgment that he had tossed a coin to decide who had won, that would definitely be appealable as a failure to properly discharge the judicial function. However, whisper it quietly, but sometimes judges are effectively tossing a coin to decide who won. 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.

Such a case is likely to be settled before it gets to court, but if one existed the judgment would be appealable. If there is apparent bias or the judge has failed to act properly, the decision can always be appealed. In this situation, the judge's findings of fact cannot be relied upon, so it should always result in a retrial unless the outcome would be the same regardless of any findings of fact (which is highly unlikely).

Not really. The order they are seeking is entirely about the decisions that favoured Fife. It seems that Sandie has decided that it isn't worth trying to get the decisions in favour of Upton overturned. That may be due to advice from her legal team, or she may simply have decided that she only really wants to go after Fife.

That's @prh47bridge. The Kelly judgement was such a hammer blow.

I asked earlier in the thread if there was any news of an appeal in that one, but it doesn't look like there have been any updates.

It was said in December that Maria Kelly intended to appeal. I haven't seen any updates on that.

That's a shame

In terms of whether Upton's presence in the changing room was harassment - I think it probably was but the fault lies with Fife as they allowed Upton to use the women's changing room, explicitly or implicitly.

Did Upton harass Sandie? Yes, but IMO the harassment took place by him making up professional misconduct allegations and roping others in. It's a very serious matter and the judge should see it as a separate question to trans issues. One would think employment tribunals see this sort of vindictive victimisation more often than high profile women's rights cases.

I think the relevant observation here is - another judge arrived at a similar decision around the same time. Thus making 'bias' harder to arrive at.

I don't disagree, but he's in Australia, so they may have thought it was more trouble than it's worth to go after him. Sometimes the decision has to be more about what's most effective rather than what's right (assuming you can't do both!)

is the bias thing being looked at by a scottish judge who might be sympathetic to kemp and rule it still shouldn't be considered?

It will be a Scottish EAT judge who decides whether the bias claim should be allowed to proceed. There is no reason to believe the judge concerned would block an arguable case due to being sympathetic to Kemp.

Half-speed handwriting Kemp
LOL