A short summary of the Sandie Peggie V. Fife Health Board and Dr Beth Upton employment tribunal judgment

You may have seen in the news that a judgment has been handed down in the Sandie Peggie v NHS Fife case. Most of the media have missed the most important information, so here it is.

There has been a lot of media coverage of the decision, some of which has inaccurately reported that Ms Peggie ‘won’ the case.  Some of the media have run with pieces that obscure or deliberately misinterpret what happened without explaining any of the nuance of what the judge actually said, and what the outcome and implications are.

For now, we explain what the judge, Sandy Kemp, and his tribunal colleagues, said in their decision, and what it means in this case. We will need to take time to digest the full decision at 312 pages, and to fully comprehend the potential implications, and how we may consider this in the wider context.

The tribunal’s decision has been made after periods of evidence in February, July and September of this year, 22 days of hearings in total, and much written evidence. The tribunal then deliberated for 5 days, and their final decision was reached unanimously.

Key points:

The nurse, Sandie Peggie, had claimed that she had been discriminated against, harassed and victimised by her employer, NHS Fife, and that she had been harassed by a doctor who is a trans woman, Dr Beth Upton.

The tribunal dismissed the large majority of these claims, including all the claims against Dr Upton.

Ms Peggie ‘won’ only in relation to some of the actions taken, or not taken, by NHS Fife, which the tribunal said had the effect of harassing her.

The first of these relates to the use of the women’s changing room by Ms Peggie and Dr Upton. The tribunal said it was lawful for NHS Fife to give Dr Upton permission to use the changing room. But when Ms Peggie complained about that, NHS Fife should have found a temporary solution while they altered work rotas so that the two women would not have to use the changing room at the same time. The tribunal found that not arranging a temporary solution amounted to harassment by NHS Fife of Ms Peggie.

NHS Fife also took too long to investigate various allegations against Ms Peggie and made reference to patient care allegations against her in an inappropriate manner. They also gave Ms Peggie incorrect instructions regarding discussion of the case.

In summary, this was about how NHS Fife handled the process, and not about their policy with regards to use of facilities. That remains as it was and was not found to be unlawful.

The tribunal confirmed both that it was lawful for NHS Fife to give Dr Upton permission to use the women’s changing room initially, and again once Ms Peggie’s and Dr Upton’s rotas were adjusted. This balanced both members of staff’s rights.

The Tribunal dismissed all of the other allegations against the NHS Fife Board. There was no discrimination against Ms Peggie, and no victimisation of her.

The tribunal also dismissed the claim against Dr Upton. Ms Peggie had claimed that Dr Upton harassed her when they met in the changing room at midnight on Xmas eve 2023. The tribunal found that Dr Upton did not harass Ms Peggie, but in fact, exactly the opposite, that Ms Peggie had harassed Dr Upton.

The tribunal held that whilst Ms Peggie was entitled to her gender critical views, she was not entitled to speak to Dr Upton in some of the ways that she did based on those views. They concluded that Ms Peggie had harassed Dr Upton:

“So far as [Ms Peggie’s] other comments are concerned, they were impermissible manifestations of her belief and were in our view what amounted to an incident of harassment by the claimant [Ms Peggie] of the second respondent [Dr Upton] related to the protected characteristic of gender reassignment”.

The judge also called Ms Peggie out for her comments made about Dr Upton within an online discussion with friends. The judge said “Some of the messages she sent are indicative of views which could be described as trans-phobic”, and that there was evidence of  “comments [Dr Upton] was liable to find offensive that went beyond simple expression of gender critical belief but amounted to personal attacks on [Dr Upton].” Holding gender critical views is protected by the Equality Act, but trans people have a right to be free from discrimination and harassment because they are trans. Employers must consider the rights of all. And there is no right to manifest your views in a way that harasses others.

In a key point, the tribunal confirmed that it is lawful for employers to grant trans workers permission to use facilities that align with their gender identity: “The protected characteristic of gender reassignment is not to be wholly disregarded as it is of equal status to sex […] It may be lawful to grant permission to a trans person to use the changing room that aligns with the sex and gender identity they identify as having, dependent on the circumstances.”

The tribunal clarified that it is not unlawful for a trans person to use facilities aligning with their gender identity, nor is it necessarily lawful – it will depend on the circumstances of the case.

What this appears to mean is that blanket exclusion of trans people from services and facilities that they need at work is likely to be unlawful in most cases. (We note that the Equality Act 2010 says that exclusion of a trans person from facilities is only permitted if it is a proportionate means of achieving a legitimate aim.)

Another key point the tribunal made was: “Having read all of the documents, there is very far from sufficient reliable evidence to establish as a fact that a trans woman who is legally and biologically male is a greater risk to any person assigned female at birth within a changing room environment at a workplace than another woman assigned female at birth.” This we knew of course.

Finally, we welcome that the judge also called out Ms Peggie’s lawyer for her use of language about Dr Upton: “Ms Cunningham asked a question seeking to compare the second respondent [Dr Upton] to the torturer in the novel 1984, to which objection was taken and after the lunch adjournment but before a decision on that was made it was withdrawn. It ought not to have been asked.”

It is worth also noting here that there was another important Scottish Employment Tribunal judgment last week, in the case of Kelly v. Leonardo. Ms Kelly had claimed that allowing trans women to use the women’s toilets at her work amounted to direct and indirect discrimination against her, and also harassment. The tribunal dismissed all her claims. It noted that there were single occupancy toilets nearby that Ms Kelly could use, if she did not want to go to the women’s toilets when a trans woman might be in there.

It is open to either Ms Peggie or Ms Kelly to appeal the decisions made by the Employment Tribunal, so this may not be the last word on these cases. Also, Ms Peggie had already started separate legal action about this, against managers at NHS Fife, and against the Royal College of Nursing, which she may continue with.

However, for now, these cases confirm that the Supreme Court ruling in April this year, in the case of For Women Scotland v Scottish Ministers, does not require a blanket ban of trans people from the services, facilities and toilets that they use in line with their gender. This also suggests that anti-trans or gender critical campaigners, and many in the media, as well as some pushing in parliament, have been incorrectly and harmfully misstating the law in this area.