A contentious employment tribunal, launched after a nurse was suspended after raising concerns about a transgender doctor using a hospital’s female changing room, resumes today.
Veteran nurse Sandie Peggie is suing NHS Fife over sexual harassment or harassment related to a protected belief under section 26 of the Equality Act 2010.
She was suspended from her role by NHS Fife last year after she objected to Dr Beth Upton, a biological man who identifies as a woman, using a female changing room in Kirkcaldy’s Victoria Hospital.
Ms Peggie claims her treatment was unlawful and has brought a case against the health board and Dr Upton.
The tribunal began earlier this year – but has been in abeyance since February after NHS Fife failed to hand over key documents.
Eleven days have been set aside for the latest hearings in Dundee, though any decision by the judge won’t be handed down for weeks after that.
Ms Peggie, who has worked at NHS Fife for more than 30 years, has already given evidence telling the tribunal she had felt uncomfortable around Dr Upton in the women’s staff changing room on three occasions between August and December 2023.
She said the issue came to a head on Christmas Eve when she entered the changing room to deal with a personal hygiene issue, fearing she had bled through her scrubs after a sudden heavy period. She claimed Dr Upton started to undress in front of her, leaving her "embarrassed and intimidated".
The pair then exchanged words – although the details of their conversation are disputed.
Ms Peggie said she told Dr Upton it was "unacceptable" to use the female changing rooms. She said she attempted to "try and convey how I was feeling" and was "shaking out of distress."
Dr Upton disputed this when giving evidence, saying: "She told me this was the women's changing room and she told me that it was inappropriate for me to be in there. She said that she felt intimidated by my presence and that I couldn't be in there."
The doctor said Ms Peggie said others felt the same as her. Dr Upton then apologised to the nurse though added "as a woman I'm allowed to use these changing rooms", and said if Ms Peggie had a problem with that, she should raise it formally.
"She repeated that I can't be in this room and that I'm not a woman, that it's not safe, that she understood I was going through some sort of process but as a man I couldn't be in the changing room. I responded to her that I'm not a man and that I can be in this changing room."
After this exchange, Dr Upton complained to NHS Fife about Ms Peggie's behaviour and the nurse was suspended in January 2024.
In her evidence, Ms Peggie said she had "felt more shocked than anything" when she learned there was a complaint against her.
The board has described Ms Peggie's case as "unnecessary and vexatious" while Dr Upton has accused the nurse of bullying and harassment.
There was also an accusation Ms Peggie left a treatment room while a patient was there because of Dr Upton’s presence – a claim her defence team accused Dr Upton of “making up”.
Senior management at NHS Fife have also already given evidence, including Ms Peggie's line manager Esther Davidson who told her to change elsewhere after receiving advice from NHS Fife's equality and diversity department, who said it was Dr Upton’s “right” to use the female facilities.
While the tribunal has been suspended, another case saw Supreme Court judges unanimously rule that for the purposes of equality law, “woman” and “sex” refer to biological sex. It means single-sex facilities must be restricted to those born that sex.
Calls have been made for the health board to admit defeat but this has been met with resistance by NHS Fife, though Ms Peggie is also keen to see the process through to a conclusion.
Dr Upton began transitioning in January 2022 and was still legally a man at the time of the confrontation with Ms Peggie – though the Supreme Court ruling states that even if the doctor held a gender recognition certificate, a single sex changing room would still be out of bounds.
If Ms Peggie wins her case she is likely to pocket a substantial payout from her employer, though Scots taxpayers will pick up the bill. NHS Fife was recently forced to reveal it has already spent £220,000 defending the case. It is also covering the liability of Dr Upton.
The exact schedule for the 11 days of evidence is yet to be made public, but Isla Bumba, NHS Fife's Equalities and Human Rights lead officer, is expected to be questioned.
On the issue of costs NHS Fife has said: "These costs will be reclaimed through the national clinical negligence and other risks indemnity scheme (CNORIS).
"Under CNORIS, NHS Fife's financial liability is limited to £25,000, which ensures that the legal proceedings do not impact frontline clinical or patient services.
"NHS Fife is not in a position to estimate the full cost of proceedings while the tribunal remains ongoing."
