Head of nursing at NHS Fife 'can't recall' risk assessment behind Sandie Peggie's suspension
Gillian Malone said she perceived that allegations about the nurse confronting transgender medic Dr Beth Upton were "unacceptable".
Ms Peggie was suspended after she objected to sharing a changing room with Dr Upton at the Victoria Hospital in Kirkcaldy on Christmas Eve 2023.
The nurse 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 the 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 3 January 2024 regarding a conflict on Christmas Eve to be "a discriminatory allegation". Datix is an online system for NHS staff to report any incidents and risks.
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.
However, she said she was aware of the nurse's concerns due to an email from August 2023.
Ms Malone said 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 replied: "I can't recall."
She added: "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."
Ms Malone said within the original Datix, there had been a comment saying there had been "other work-related incidents".
During cross-examination by Ms Peggie's barrister, Naomi Cunningham, Ms Malone agreed 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 implied Ms Malone was "essentially behind the decision to suspend".
Ms Malone replied: "It was Esther who completed the risk assessment."
She was also asked about an email titled "formal complaint" later sent by Dr Upton on 11 June 2024.
Ms Cunningham 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".
She 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 replied: "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 stated: "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: "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."
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