Head of nursing ‘can't recall' risk assessment behind Sandie Peggie's suspension
Gillian Malone said she perceived that allegations about Ms Peggie confronting transgender medic Dr Beth Upton were 'unacceptable'.
Ms Peggie was suspended after she complained about having to share a changing room with Dr Upton at the Victoria Hospital in Kirkcaldy, Fife – where they both worked – on Christmas Eve 2023.
She was placed on special leave and then suspended after Dr Upton made an allegation of bullying and harassment and cited concerns about 'patient care'.
Ms Peggie has lodged a claim against Fife health board and Dr Upton, citing the Equality Act 2010, including sexual harassment; harassment related to a protected belief; indirect discrimination and victimisation.
On Thursday, Ms Malone, told the tribunal she perceived a Datix report from January 3, 2024 regarding a conflict on Christmas Eve to be 'a discriminatory allegation'.
She said she had no role in the investigation, that she had never met Ms Peggie, and had no awareness of 'tension' between either the nurse or Dr Upton.
But she said she was aware of the nurse's concerns due to an email from August 2023.
Ms Malone told the tribunal the decision to suspend Ms Peggie was made following a risk assessment carried out by Esther Davidson, the nurse's line manager, however when asked if she had seen the risk assessment, she said: 'I can't recall.'
Giving evidence, she said: 'When I read content of Datix I thought the comments were concerning.
'At this time they were allegations, I did believe there was behaviour in there which could constitute bullying and harassment which were of concern and could require investigation.'
She added: 'Within original Datix there is a comment that there has been other work-related incidents.'
During cross-examination by Ms Peggie's barrister, Naomi Cunningham, Ms Malone – the most senior staff member to appear at the tribunal – said she agrees there are two biological sexes and that sex is a 'medically salient fact'.
Ms Cunningham read from an email sent by an HR worker, which said: 'We discussed suspension being last resort and options to mitigate risk…
'Esther felt it would be almost impossible to keep them apart so spoke to Gillian Malone… she believes there is a patient safety issue due to seriousness of the allegation and therefore wishes to suspend.'
Ms Cunningham said: 'It looks as though you were essentially behind the decision to suspend.'
Ms Malone said: 'It was Esther who completed the risk assessment.'
She was also asked about an email titled 'Formal Complaint' sent by Dr Upton on June 11.
Ms Cunningham then suggested the reason Ms Peggie was suspended was 'because she had told Dr Upton she wasn't happy about him using the women's changing room'.
Ms Cunningham said: 'That is the first documentary trace shown to the tribunal of the document 'Formal Complaint' which contains earlier incidents, being passed on to anyone from hospital management at all. Do you say that document was already in the hands of somebody, either as a printed out statement or sent as an email, before June 11?'
Ms Malone said: 'I'm not aware of that.'
Ms Cunningham said: 'Do you agree that if the tribunal finds that the reason for suspension was about the incident on Christmas Eve and wasn't about the prior allegations relating to patient care, that wasn't sufficient justification for suspension?'
Ms Malone said: 'The justification for suspension was based on a risk assessment which wasn't undertaken by me.'
Asked to identify what she perceived to be most unacceptable in the allegations made by Dr Upton, Ms Malone replied: 'I find it unacceptable that any colleague would confront another colleague in the manner described.'
She added that Ms Peggie should have raised concerns through her line manager rather than 'face-to-face on Christmas Eve'.
Ms Cunningham said: 'If the tribunal finds that the claimant didn't ask about his genes, would you say otherwise that was a point she was entitled to make, that he shouldn't be there? If she said to Dr Upton 'I don't think you should be here because you're a man', even if she didn't say anything about chromosomes?'
Ms Malone said: 'I think that was already raised back in August, I wouldn't have expected that to be face-to-face on Christmas Eve.'
Ms Cunningham added: 'I'm suggesting that by challenging Dr Upton's presence in the changing room she was complaining he was harassing her; it was her rejection of that harassment which gave rise also to the disciplinary and suspension, it was her refusal to tolerate what he was doing.'
Ms Malone said: 'It was the manner in which she raised it.'
The tribunal continues.
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an hour ago
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Sandie Peggie was suspended after she complained about having to share a changing room with transgender medic Dr Beth Upton at Victoria Hospital, Kircaldy, Fife, on Christmas Eve 2023. She was placed on special leave after Dr Upton made an allegation of bullying and harassment and cited concerns about 'patient care'. Ms Peggie has lodged a claim against NHS Fife and Dr Upton, citing the Equality Act 2010, including sexual harassment; harassment related to a protected belief; indirect discrimination; and victimisation. The tribunal resumed in Dundee on July 16 after an initial set of hearings in February. On Tuesday, Dr Kate Searle, a consultant in emergency medicine, said that Dr Upton was 'very open' about their trans status during a job interview, and had been out for around a year in August 2023, the tribunal heard. Dr Searle said that she had known Ms Peggie during her 11-year career at NHS Fife but was unaware of her gender critical views, and had asked Dr Upton 'if she was happy using female changing rooms' in August 2023 during an induction and 'didn't make any other suggestions'. She said she emailed equality lead Isla Bumba on December 8 2023 to ask if NHS Fife had a transgender policy but was told it did not. Dr Searle said: 'I asked her if she was happy using female changing rooms, she said yes, I had nothing else to add.' She said she emailed Ms Bumba as 'we've got our first transgender doctor working, there's very little information available', hoping there would be an NHS Fife policy on 'supporting transgender staff in their workplace', the tribunal heard. On her return to work after Christmas, on December 29 2023, Dr Searle read an email from Dr Elspeth Pitt regarding an 'upsetting interaction with another member of staff' and an email from Dr Upton from Christmas Day, alleging Ms Peggie had told her 'she can't be in the female changing room, it's wrong and lots of others feel this way' and 'she continued to tell me she is intimidated, she told me women have a right to feel safe', and made a comment about 'prisons', the tribunal heard. Dr Searle said: 'To me that was likening the situation to the Isla Bryson case that was very well publicised. Isla Bryson was a convicted rapist who was housed temporally in a female prison.' She said she was 'very concerned' and 'knew there wasn't an NHS Fife policy', adding that 'according to the hate incident policy it is verbal harassment', the tribunal heard. She said she had a meeting with Dr Upton at 5pm who was 'shaken and distressed', and they completed a Datix internal report together. Dr Searle said: 'We looked at NHS Fife's hate incident policy and recognised this required a Datix to be completed, so we completed that together, we discussed reporting the incident to the police as that's again what is recommended in NHS Fife policy. 'Beth said she would think about it, we looked at her shift patterns to see when she was next due to be in and if she felt safe to do that.' She added that Dr Upton 'mentioned two other incidents she had had with Sandie where she had felt the interaction was affected by Ms Peggie's feelings towards her as a transgender woman', and alleged that in one incident in a resuscitation unit 'Ms Peggie was doing nursing obs (observations) on a patient; when Beth walked in Ms Peggie left. Beth said 'do you want me to finish doing obs?', Ms Peggie said 'you can finish doing them yourself', and left the room', the tribunal heard. She alleged that another incident involved a patient in a suspected mental health crisis leaving, and said that when Dr Upton went to look for Ms Peggie, the nurse 'would only speak to her through another member of nursing staff', the tribunal heard. Dr Searle said: 'That would make me somewhat concerned for patient safety; in our team we need to communicate very well between ourselves to ensure patient safety.' She said she had spoken to the healthcare worker, and added: 'I asked if she recalled the situation and she was concerned about getting involved in any discussions about the incident because she said 'I am mixed race and I am worried about getting involved in this for my own safety'.' Counsel for both respondents, Jane Russell KC, said: 'What do you think she meant?' Dr Searle said: 'This legal case where there is a lot of press attention and any staff being involved in the case have felt under scrutiny and concerned that their views will be widely publicised when they wouldn't otherwise.' She said she completed the Datix as 'NHS staff must record all hate incidents' and added: 'We talked about reporting to the police, that's mentioned for hate incidents.' The tribunal continues.
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Consultant believed dispute over female changing rooms ‘was hate incident'
Sandie Peggie was suspended after she complained about having to share a changing room with transgender medic Dr Beth Upton at Victoria Hospital, Kircaldy, Fife, on Christmas Eve 2023. She was placed on special leave after Dr Upton made an allegation of bullying and harassment and cited concerns about 'patient care'. Ms Peggie has lodged a claim against NHS Fife and Dr Upton, citing the Equality Act 2010, including sexual harassment; harassment related to a protected belief; indirect discrimination; and victimisation. The tribunal resumed in Dundee on July 16 after an initial set of hearings in February. On Tuesday, Dr Kate Searle, a consultant in emergency medicine, said that Dr Upton was 'very open' about their trans status during a job interview, and had been out for around a year in August 2023, the tribunal heard. Dr Searle said that she had known Ms Peggie during her 11-year career at NHS Fife but was unaware of her gender critical views, and had asked Dr Upton 'if she was happy using female changing rooms' in August 2023 during an induction and 'didn't make any other suggestions'. She said she emailed equality lead Isla Bumba on December 8 2023 to ask if NHS Fife had a transgender policy but was told it did not. Dr Searle said: 'I asked her if she was happy using female changing rooms, she said yes, I had nothing else to add.' She said she emailed Ms Bumba as 'we've got our first transgender doctor working, there's very little information available', hoping there would be an NHS Fife policy on 'supporting transgender staff in their workplace', the tribunal heard. On her return to work after Christmas, on December 29 2023, Dr Searle read an email from Dr Elspeth Pitt regarding an 'upsetting interaction with another member of staff' and an email from Dr Upton from Christmas Day, alleging Ms Peggie had told her 'she can't be in the female changing room, it's wrong and lots of others feel this way' and 'she continued to tell me she is intimidated, she told me women have a right to feel safe', and made a comment about 'prisons', the tribunal heard. Dr Searle said: 'To me that was likening the situation to the Isla Bryson case that was very well publicised. Isla Bryson was a convicted rapist who was housed temporally in a female prison.' She said she was 'very concerned' and 'knew there wasn't an NHS Fife policy', adding that 'according to the hate incident policy it is verbal harassment', the tribunal heard. She said she had a meeting with Dr Upton at 5pm who was 'shaken and distressed', and they completed a Datix internal report together. Dr Searle said: 'We looked at NHS Fife's hate incident policy and recognised this required a Datix to be completed, so we completed that together, we discussed reporting the incident to the police as that's again what is recommended in NHS Fife policy. 'Beth said she would think about it, we looked at her shift patterns to see when she was next due to be in and if she felt safe to do that.' She added that Dr Upton 'mentioned two other incidents she had had with Sandie where she had felt the interaction was affected by Ms Peggie's feelings towards her as a transgender woman', and alleged that in one incident in a resuscitation unit 'Ms Peggie was doing nursing obs (observations) on a patient; when Beth walked in Ms Peggie left. Beth said 'do you want me to finish doing obs?', Ms Peggie said 'you can finish doing them yourself', and left the room', the tribunal heard. She alleged that another incident involved a patient in a suspected mental health crisis leaving, and said that when Dr Upton went to look for Ms Peggie, the nurse 'would only speak to her through another member of nursing staff', the tribunal heard. Dr Searle said: 'That would make me somewhat concerned for patient safety; in our team we need to communicate very well between ourselves to ensure patient safety.' She said she had spoken to the healthcare worker, and added: 'I asked if she recalled the situation and she was concerned about getting involved in any discussions about the incident because she said 'I am mixed race and I am worried about getting involved in this for my own safety'.' Counsel for both respondents, Jane Russell KC, said: 'What do you think she meant?' Dr Searle said: 'This legal case where there is a lot of press attention and any staff being involved in the case have felt under scrutiny and concerned that their views will be widely publicised when they wouldn't otherwise.' She said she completed the Datix as 'NHS staff must record all hate incidents' and added: 'We talked about reporting to the police, that's mentioned for hate incidents.' The tribunal continues.
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