Can same legal team still represent NHS Fife and Dr Upton?

The Herald Scotland

2 days ago

It hung over the stiflingly hot Room Four in Dundee's Tribunal Hearing Centre as NHS Fife's Equalities and Human Rights Lead Officer, Isla Bumba, was quizzed by lawyers and the employment judge.
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For someone whose £60,000-a-year job is to lead on equality and human rights, the 20-something seemed a bit vague on equality and human rights legislation.
Still, when asked in the summer of 2023 for some 'very generic and informal advice' on accommodating a trans person joining the ranks of NHS Fife—particularly around changing rooms—she said it 'could be deemed discriminatory to not allow a trans person access to facilities that aligned with their gender'.
However, when pushed by Ms Peggie's KC, Naomi Cunningham, she admitted she hadn't considered the Workplace (Health, Safety and Welfare) Regulations 1992, which say changing facilities aren't suitable 'unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety'.
Ms Bumba told the tribunal that, in light of everything, more attention could have been paid to certain things.
Societally and legally we've evolved since July 2023, she added.
During her evidence, NHS Fife's lawyer put forward lots of examples of trans policies in place at other health boards across the UK.
The argument was, it seems, that everyone else was doing it, so we weren't to know any better.
That may be true—but it was the changing room at the A&E in Kirkcaldy's Victoria Hospital where Dr Beth Upton and Sandie Peggie met on Christmas Eve.
So it's very much NHS Fife's problem.
And now it's also NHS Fife's problem that the complaints made about Ms Peggie by Dr Upton haven't stood up.
Not only did the doctor report a 'hate incident' in the changing room, but once the investigation got underway, they made two more explosive allegations, raising 'clear fitness to practise questions'.
One was that Ms Peggie 'walked out of a resuscitation unit when Dr Upton entered, leaving a patient unseen'.
We know that an HR worker at the board internally questioned the 'validity of patient safety concerns due to lack of evidence', noting the allegations were based on 'perception' and that Ms Peggie hadn't even been asked about them.
But NHS Fife pushed on with the investigation.
Now that the health board has investigated and found nothing to back up the complaints, the question is whether they'll now face a disciplinary hearing of their own.
In no walk of life do you get to make potentially career-ending allegations about a colleague—allegations that turn out to be baseless—and just move on.
That's especially true in medicine. This could even see Dr Upton end up in front of the General Medical Council.
What makes this all especially tricky for the health board is that these complaints—the trashing of Ms Peggie's reputation—formed a significant part of their case against her.
The board doesn't just share a legal team with Dr Upton, they also share a legal argument, a legal narrative.
They're inexorably linked.
They can't settle unless Dr Upton agrees to settle. But given that would effectively mean the doctor admitting they fabricated the complaints, they've got a clear reputational reason to push on.
The board, by contrast, has an interest in having some room to manoeuvre.
It's in their interest to be able to throw Dr Upton under the bus if, as the tribunal resumes, it looks like they're heading for defeat.
Lawyers owe a duty of single-minded loyalty to their client. They're prohibited from acting for two or more clients whose interests conflict—or even might conflict.
So what does NHS Fife's legal team do now? Can they really continue this case without favouring one client over the other?