Sandie Peggie’s claims against trans doctor dismissed but NHS Fife did harass her, tribunal rules

A nurse who complained about sharing a women’s changing room with a trans doctor has had her claims against the doctor dismissed, but the employment tribunal did rule that her health board harassed her.

Scottish nurse Sandie Peggie launched an employment tribunal earlier this year against NHS Fife and Dr Beth Upton after she was suspended for objecting to Dr Upton using the women’s changing rooms at the A&E at Victoria Hospital in Kirkcaldy, Fife on Christmas Eve 2023.

The 2023 Christmas Eve incident saw the two “exchange words”, which were said to include Peggie using derogatory terms towards Dr Upton and asking offensive and inappropriate questions, and in turn Dr Upton made an allegation of bullying and harassment about Peggie.

Peggie was subsequently placed on special leave in January 2024.

In her claim, Peggie – who was represented in the case by gender-critical group Sex Matters’ chair Naomi Cunningham – cited Equality Act 2010 including sexual harassment, harassment related to a protected belief, indirect discrimination, and victimisation.

NHS Fife argued it had followed NHS policy on the matter and her decision to take legal action against the board and Dr Upton was “both unnecessary and vexatious”.

The judgement in the case, published on Monday (8 December), Peggie’s harassment claims again NHS Fife were upheld. However, several of her claims were dismissed, including allegations of discrimination, indirect discrimination and victimisation and all her claims against Dr Upton.

NHS Fife was found to have harassed Peggie by failing to revoke the grant of permission to Dr Upton on an interim basis after she complained, taking an unreasonable length of time to investigate the allegations raised against Peggie, making reference to patient care allegations against her on 28 March 2024 and and giving her an instruction not to discuss the case – until a further message confirmed that only applied to the investigation.

During the hearings, Peggie was allowed to misgender Dr Upton because employment judge Sandy Kemp decided that whilst misgendering could be “painful and distressing” for Dr Upton it did not constitute unlawful harassment.

Kemp added that the bar for harassment could be met if male pronouns were used for Dr Upton “gratuitously and offensively on a repeated basis”, adding at the time that Peggie and her lawyers “may wish to reflect” on whether it was “necessary or appropriate” to misgender Dr Upton, even though they are legally permitted to do so. 

Jane Russell, who represented NHS Fife and Dr Upton, said the use of incorrect pronouns for Dr Upton caused “pain” and “harm” and it is “simply a matter of courtesy” to use the correct ones.

“I’m afraid the way the claimant and her representatives are conducting this case is a form of activism, that in my submission, is contributing to a climate of hostility and hatred towards trans people… it shouldn’t be allowed,” she said. 

Also during the hearings, Dr Upton told the tribunal that she was “not interested in vengeance” or “interested in retribution” but instead was “interested in justice”.

“Trans people are not predators”

“Trans people are not predators by nature of being themselves,” Dr Upton said.

In a statement, quoted by the BBC, NHS Fife said it “recognises that this has been a complex and lengthy process and acknowledges the careful consideration of Judge Kemp and the tribunal panel”.

The statement reads: “The employment tribunal unanimously dismissed all of the Claimant’s allegations against Dr Upton and all of the allegations against the Board apart from four specific aspects of the harassment complaint.

“We will now take time to work through the detail of the judgment alongside our legal team to understand fully what it means for the organisation.

“We want to recognise how difficult this tribunal has been for everyone directly and indirectly involved.

“Our focus now is to ensure that NHS Fife remains a supportive and inclusive environment for all employees and our patients and to deliver health and care to the population of Fife.”

In her own statement, Peggie said she was “beyond relieved and delighted” that the tribunal found her employer, NHS Fife, harassed her

“The last two years have been agonising for me and my family,” she continued.

A separate hearing on remedy, where Peggie could be granted financial compensation, will take place at a later date.