NHS Fife ‘undermined Supreme Court ruling' in Sandie Peggie tribunal

Times

4 days ago

The health board at the centre of a landmark employment tribunal has been accused of undermining a Supreme Court ruling by claiming a trans doctor is not a man.
Sandie Peggie, a nurse, is suing NHS Fife and her colleague Beth Upton for unlawful discrimination after having to share a single-sex changing room with the doctor.
At the hearing, Jane Russell KC, the barrister for NHS Fife and Upton, has repeatedly questioned the meaning of the Supreme Court ruling on April 16 on the legal definition of 'sex'.
For Women Scotland, the campaign group responsible for the judgment, has told the Dundee employment tribunal that it is 'concerned' about Russell's comments. The group has requested permission to intervene in the tribunal and has been told neither Peggie's legal team nor the lawyers for NHS Fife and Upton object.
In a letter to the hearing, For Women Scotland listed three exchanges between Russell and Naomi Cunningham, Peggie's barrister.
In one, Russell stated the Supreme Court judgment was an abstract case regarding representation on public boards in Scotland and did not concern lavatories.
On July 23, Cunningham referred to Upton as a 'man' saying the doctor was a trans woman and trans women are men. 'Legally speaking, a trans woman is a man, so there was a man in the women's changing room,' she said. In response, Russell said she did not agree with that interpretation of the judgment, calling it a 'contentious matter' and a 'point in dispute'.
Finally, on July 24, Russell said: 'Dr Upton is not a man. For Women Scotland doesn't say so.'
The gender-critical group's letter to the tribunal judge said the first exchange was not 'factually correct', adding: 'We are surprised there was no correction by the tribunal.'
The submission added: 'In the second and third exchanges, Ms Cunningham was factually correct in her statement that Dr Upton is a man under the Equality Act, in accordance with the For Women Scotland ruling by the UK Supreme Court.
'This should not be a point in dispute by the court, nor regarded as contentious or a hypothesis to be tested.'
The letter went on: 'We are concerned about two things, firstly that closing submissions may attempt to re-litigate our case and debate the definitions of 'sex', 'woman' and 'man' in the Equality Act, when these are settled matters in law.
'And secondly, that if the tribunal does not make it clear to the parties (and the viewing public) that 'what exactly For Women Scotland says' is in fact clear and settled law and not 'contentious', 'a hypothesis' or 'in dispute' then it may render the judgment open to appeal on any point where Dr Upton's sex is relevant.'
Peggie is seeking financial compensation for 'harassment' and 'hurt feelings' from both Upton and NHS Fife. Her case includes a request for an extra 25 per cent compensation from the health board because of an 'unreasonable delay' in its investigation into her conduct.
The nurse, who has more than 30 years service, was suspended in connection to allegations of gross misconduct. She was cleared of the charges after an internal hearing on June 25, 18 months after an incident with Upton that prompted the dispute.
The pair had both been in the women's changing room at Victoria Hospital, in Fife, on Christmas Eve 2023. Peggie and Upton exchanged words with the nurse uncomfortable at having to share the women's changing facilities with a biological male. She was placed on special leave then suspended after the incident.
If the employment judge finds that Peggie was discriminated against by the health board, she is also requesting a 'protected disclosure detriment' from both respondents. Peggie is not, however, entitled to loss of earnings as she is still employed by NHS Fife.
After a protracted dispute under freedom of information legislation, the health board was pushed to disclose the cost so far of the tribunal proceedings after a rebuke from the Scottish information commissioner.
As of Wednesday, the tribunal has cost more than £258,000, although NHS Fife said it would only pay a maximum of £25,000. The rest is covered by insurance designed to protect health boards from significant financial losses.
Costs are expected to have increased significantly during the second round of evidence hearings, which ran from July 16 to July 29.
Earlier this week Peggie was recalled to give further evidence in her defence after allegations of racism and Islamophobia from colleagues who claimed she used offensive language. The nurse blamed her upbringing for the use of racial slurs, saying it had not been 'politically correct'.
Peggie also named 13 colleagues who she claimed also opposed Upton using the women's changing room.
Evidence hearings have now concluded and a verdict is not expected until at least December.