Emails discussing nurse probe should not have been written, Peggie tribunal told
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, gave evidence and denied 'deliberately concealing' an email sent on January 5 2024 by fellow consultant Maggie Currer, with six potential witnesses plus Dr Upton included.
A judicial order was made in January by the tribunal, however documentation emerged during the hearings in February and an IT trawl was commissioned which Dr Searle said all clinicians involved complied with.
Barrister Naomi Cunningham, representing Ms Peggie, said: 'I want to suggest you deliberately concealed it to conceal wrongdoing of colleagues.'
Dr Searle said: 'It would be dishonest to do that and I'm a doctor who acts as honestly as I can at all times.'
In her evidence, Dr Searle said that she had no concerns about Dr Upton's allegations as the General Medical Council requires 'honesty and integrity'. However, she said she was 'never informed' that a referral to the Nursing and Midwifery Council had been made, the tribunal heard.
She said that she emailed Dr Upton with others included later in January to give an 'update' on the investigation. But during cross-examination, Dr Searle admitted 'that we should not have written these things in a group email to witnesses'.
Ms Cunningham said the email on January 5 2024 was 'seriously embarrassing to the respondents' and said it 'appears to be an intention to set up and co-ordinate a group who should not be talking about this as they're witnesses'.
She added: 'It says 'information must not be shared outside this group as risk of foot in mouth syndrome – it is quite a serious risk of foot in mouth syndrome'.'
Dr Searle said: 'I can appreciate that in hindsight we should not have written these things in a group email to witnesses.'
Ms Cunningham quoted from Dr Upton's evidence, including that using female changing rooms was 'a thing I have been instructed to be the most appropriate', and describing biological sex as a 'nebulous dog whistle'.
Dr Searle denied telling the junior doctor to use female facilities, and said: 'Definitely no instructions were given.'
She agreed that biological sex was 'significant', but when the term 'nebulous dog whistle' was put to her, she denied knowing what it meant.
Ms Cunningham said: 'I think it must follow that anyone who describes biological sex as a 'nebulous dog whistle' would be talking obvious nonsense.'
Dr Searle said: 'I'm not sure what that means.'
The witness said she emailed Equalities lead Isla Bumba on December 8 2023 as Dr Upton felt 'uncomfortable' about Ms Peggie 'self-excluding' from the female changing room, but said she 'didn't recall' raising the possibility of taking it further, as mentioned in an internal investigation.
She said she Googled policies around self-identification, and added: 'I'm not a law expert – if you Google it, it comes up under Equality Act, there are many references to toilets and changing rooms. I subsequently emailed Isla Bumba who is much more expert in Equalities than me. She agreed there is no policy.'
The consultant denied that she perceived self-exclusion as 'misbehaviour'.
Dr Searle said: 'We would have discussed it if Dr Upton was very uncomfortable and it was affecting them'.
She said a discussion would have involved 'compassion and kindness', but added: 'It doesn't sound otherwise like there's anything to take further.'
Ms Cunningham said: 'At the time you discussed it with Dr Upton you considered this to be misbehaviour, she (Ms Peggie) was behaving badly and making him feel uncomfortable.'
However, Dr Searle said: 'Beth felt uncomfortable that Sandie appeared to not want to engage.'
Ms Cunningham said: 'My question was: both you and he regarded Sandie's conduct in removing herself a form of misbehaviour?'
Dr Searle said: 'I don't agree we would have classed it as misbehaviour.'
Ms Cunningham said: 'I think you've already confirmed that email to Isla Bumba on December 8 was prompted by a conversation about Sandie removing herself from the changing room when he was there, that's right?
'You ask if there's any policies around transgender staff and suggest Dr Upton might be keen to help develop some; is it fair for the tribunal to infer the possibility of developing policies to make it easier for Dr Upton to take matters further?'
Dr Searle said: 'No, I don't agree. I think there needs to be an NHS Fife policy on how everyone can feel comfortable in changing areas of their choosing.'
The tribunal continues.
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