NHS Fife equality lead sought guidance on trans staff policies, tribunal told
After Dr Upton made an allegation of bullying and harassment and cited concerns about 'patient care', Ms Peggie was suspended but was notified of safety allegations on March 28, 2024 in a letter, the tribunal heard earlier this year.
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.
The tribunal in Dundee resumed on Wednesday after previous hearings in February, and comes after the UK Supreme Court ruled in April that the terms 'woman' and 'sex' in the 2010 Equality Act 'refer to a biological woman and biological sex', a ruling which has been publicly welcomed by Ms Peggie.
Isla Bumba, NHS Fife's equality and human rights lead officer, told the tribunal on Wednesday she researched the policies of other health boards as there was no regional policy in place regarding trans employees in 2023.
Questioned by NHS Fife's counsel Jane Russell KC, Ms Bumba said that in August 2023, her line manager Esther Davidson had sought advice on transgender policies.
Ms Bumba said: 'Esther called me, I believe she had called me to ask for very generic and informal advice. I was told they had a transgender staff member who was due to join the workforce, she was seeking advice on how best to accommodate them particularly around changing rooms.'
She added: 'I said it could be deemed discriminatory to not allow a trans person access to facilities that aligned with their gender, but I recommended that it might be worthwhile having a conversation with the person directly if they had been open about their trans status to see where they would be most comfortable.'
Ms Bumba said she looked at policies from NHS Lanarkshire and NHS Highland, and was regularly communicating with peers in her role as part of the NHS Scotland Equality Leads Network, and she was also working on a draft patient policy.
Ms Russell read from the NHS Highland policy which said: 'Staff must be treated in accordance with self-declared gender regardless of whether under medical supervision or having gender recognition certificate.'
Ms Bumba said the policy 'exactly' aligned with her understanding, and at the time, a national policy Once For Scotland from NHS Scotland was being worked on in draft form.
She said she believed the national policy had been 'soft launched' before being withdrawn in February 2025 due to legal proceedings.
Ms Bumba said she was providing advice on trans issues 'relatively frequently… at least once a month or every couple of weeks', and she believed Dr Upton was not the only transgender employee at NHS Fife.
Ms Bumba said she was contacted by Dr Upton's line manager, Dr Kate Searle, on December 8 2023, and referred to the draft national policy.
Ms Bumba went on annual leave between December 24 that year until January 3 2024, when she said she became aware of a conflict between a doctor and a nurse.
She told the tribunal she read a Datix report titled 'hate incident' and read an email from Dr Searle on January 8, and offered to have a chat 'to see what the plan was moving forward'. However she said this meeting did not happen as it was 'chaotic', and Dr Searle was off the following day.
She said she had previously advised two line managers to speak to HR but believed they had already done so in her absence.
Ms Bumba said: 'I believe the advice I gave was that from the information I'd been given it sounded like a very unpleasant incident, it could be deemed discriminatory and I recommended they seek advice from HR.
'I believe the Datix was listed as a hate incident which would suggest the person who listed it believed it was discriminatory.'
However she said she had no further involvement until July 2024 when a press report prompted a meeting.
Ms Bumba said: 'I did remind the group that the nurse involved was entitled to her beliefs and that gender-critical beliefs were protected under the Equality Act, but that the NHS expects staff to behave with care and compassion.'
She said the draft patient policy was put on hold and NHS Fife was 'hesitant' about the draft national policy, the tribunal heard.
Ms Bumba said: 'I believe the soft launch has been pulled since the onset of this tribunal.'
Hours before the tribunal was due to restart, Ms Peggie's solicitor Margaret Gribbon said the nurse had been cleared of gross misconduct allegations following a separate health board disciplinary hearing.
The inquiry continues.
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