A nurse is taking legal action against a Scottish health board after she was suspended for complaining about sharing a changing room with a transgender colleague.
Sandie Peggie, a nurse at NHS Fife, has claimed she was subjected to unlawful harassment under the Equality Act 2010 by being made to share a changing room with Dr Beth Upton, who is a transgender woman.
Ms Peggie’s claim has been disputed by NHS Fife and Dr Upton.
The employment tribunal, which began on 3 February, has been adjourned until July. It is expected to last a further 11 days.
Nursing Times has broken down what has happened so far.
Background to the tribunal
At the time of the incidents, Ms Peggie, a nurse, and Dr Upton, a medic, were both employed at Victoria Hospital, Kirkcaldy and worked in the A&E department.
According to Ms Peggie, in late August 2023, she entered a changing room in the A&E department and saw Dr Upton getting dressed, which made her feel embarrassed to get changed and led her to leave the room.
Then, in late October or early November 2023, Ms Peggie was getting changed in the changing room, dressed in her bra and trousers, when Dr Upton came in.
Again, the nurse said she felt embarrassed at changing in front of Dr Upton, so replaced her top and left the room.
Ms Peggie said she then entered the changing room on 24 December 2023 to take care of a personal hygiene need and ended up being left alone with Dr Upton after two members of staff left.
At this point, the nurse and the medic exchanged words with one another.
What was said during this exchange has been disputed by both parties.
Following the third incident, Dr Upton refused to leave the changing room and later made a complaint of bullying against Ms Peggie.
On 30 December 2023, NHS Fife placed Ms Peggie on special leave and then, on 4 January 2024, the health board suspended her.
NHS Fife launched a disciplinary investigation into the complaint by Dr Upton and Ms Peggie’s suspension continued.
On 7 March 2024, the health board tried to persuade Ms Peggie to return to a different workplace from Victoria Hospital.
Eventually, NHS Fife agreed that Ms Peggie could return to her usual workplace, but asked her to work day shifts so that she could be supervised by senior staff.
The organisation refused to guarantee that Dr Upton would not be permitted to use the women’s changing rooms in the A&E department.
At the time the incident took place, it was NHS policy to allow transgender people to use the changing rooms that align with their gender identity.
This is not the first time nurses have threatened legal action in an NHS changing room row.
Last year, a group of nurses announced that they wanted to sue County Durham and Darlington NHS Foundation Trust over an “intimindating and upsetting” situation that nurses said had arisen as a result of the behaviour of a transgender colleague using the women’s changing room.
Why legal action is being taken
Ms Peggie has taken Dr Upton and NHS Fife to an employment tribunal, claiming that they have breached the Equality Act 2010, in relation to the three incidents in the changing room and what happened afterwards.
The A&E nurse has put forward complaints against Dr Upton personally, including sexual harassment or harassment related to a protected belief under the Equality Act 2010.
Ms Peggie’s protected belief is that biological sex is real, and that she believes Dr Upton is male and a man.
Secondly, the nurse has lodged a whistleblowing complaint against the medic under the Employment Rights Act, arguing that what she said to the Dr Upton during the Christmas Eve incident was a protected disclosure of information.
Sandie Peggie
Ms Peggie argued that Dr Upton had subjected her to two detriments following the disclosure, including refusing to leave the changing room and making an “unfounded complaint of bullying”.
Meanwhile, Ms Peggie has also made complaints against NHS Fife, including a complaint of sexual harassment or harassment related to a protected belief, a complaint of victimisation and a whistleblowing complaint.
A complaint of indirect discrimination has also been lodged, based on the fact that NHS Fife permitted Dr Upton to use the female changing room and, more widely, permits staff to use the changing room that aligns with their gender identity.
Ms Peggie has been supported by the advocacy group Sex Matters and The Times newspaper, among others.
NHS Fife denies that Ms Peggie has been harassed by Dr Upton and denies that what was said on Christmas Eve was a protected disclosure.
Judge rules hearing will be held publicly
At the start of January 2025, Dr Upton and NHS Fife lost their bid for the employment tribunal to be held in private and for the medic’s identity to be anonymised.
Dr Upton said she was fearful that she would experience violence if her status as a trans woman was to be publicly disclosed.
However, employment judge Antoine Tinnion concluded that public scrutiny of a witness’ evidence was “an important part of the open justice principle”.
A later preliminary ruling on 21 January also rejected NHS Fife’s request to impose an order on Ms Peggie and her legal team, to prevent them from using male pronouns or terms to refer to Dr Upton.
Dr Upton’s legal team had warned this would be upsetting, and that it would deeply hurt the medic to be misgendered.
Employment judge Sandy Kemp, who presided over this pre-tribunal hearing, ruled in Ms Peggie’s favour, while acknowledging that it might be “painful and distressing” for Dr Upton.
Key points from the tribunal
The following information has been drawn from BBC articles covering the daily hearings.
On the first day of the tribunal, Ms Peggie recounted how she felt “uncomfortable and embarrassed” at the idea of changing in front of Dr Upton.
She claimed that other female members of staff had expressed discomfort with Dr Upton using the women’s changing rooms.
The nurse said she was “shocked” when she found that a serious complaint of bullying had been made against her following the exchange on Christmas Eve.
Ms Peggie said she had not been asked for her side of the story when she was suspended, and criticised how long the investigation into the bullying allegations had taken.
The next day, the tribunal heard how Ms Peggie had compared the medic’s decision to use the women’s changing room to controversy around “men being in women’s prison”.
It was determined that this was referring to the case of rapist Isla Bryson, a transgender woman who was initially remanded in a women’s prison.
Victoria Hospital, Kirkcaldy, part of NHS Fife
Dr Upton’s lawyers suggested that the comment fed into a narrative that trans women were predators.
Ms Peggie claimed that she did not compare Dr Upton to being a rapist.
The nurse did however confirm that she had called Dr Upton a man, as she believed the medic was biologically male, and acknowledged that this would be considered harassment under NHS Fife’s diversity and equality guidance.
Later in the tribunal, Dr Upton said she felt “distressed” and “afraid” after the confrontation with the nurse in the changing room.
The medic claimed that Ms Peggie had asked what chromosomes she had and had told Dr Upton that other colleagues were uncomfortable with the doctor using the female changing room.
The tribunal heard how Dr Upton reported being bullied for being transgender, which was logged on the NHS’s Datix system – used by staff to report concerns.
The medic claimed that the incidents with the nurse had escalated to a stage where it had the potential to impact care of patients.
Dr Upton denied claims by Ms Peggie’s legal team that she had asked the nurse to “submit” and believe she was a woman.
Instead, the medic said she was just asking for “basic respect”.
A few days later in the tribunal, Dr Upton denied seeking to “punish” Ms Peggie, after lawyers accused the doctor of doing her very best to end the nurse’s career by telling a “pack of lies”.
The alleged lies relate to an allegation made by the medic that Ms Peggie did not help treat a patient in a resuscitation room due to Dr Upton being present.
Ms Peggie’s legal team criticised the fact that Dr Upton did not report the incident immediately, and that it only emerged after the Christmas Eve row.
On the final two days of the first part of the tribunal, clinical nurse manager Esther Davidson was brought in to give evidence.
She told the tribunal that Dr Upton had the right to use the female changing room under NHS Fife’s equality and diversity policy.
Ms Davidson further told the tribunal that it was “the best decision at the time” to suspend Ms Peggie, pending an investigation.
On 14 February, the tribunal was adjourned until July due to the questioning of witnesses taking longer than anticipated and the judge and lawyers’ availability.
NHS Fife disciplinary hearing
Earlier this week, it was revealed by the BBC that NHS Fife had scheduled a disciplinary hearing to examine allegations against Ms Peggie of misconduct, failures of patient care and misgendering Dr Upton.
The BBC reported that, in response, Ms Peggie’s legal team were planning further action in the form of another tribunal claim.
Margaret Gribbon, one of Ms Peggie’s lawyers, confirmed to Nursing Times that her client had been invited to a disciplinary hearing.
According to the BBC, the hearing was initially due to take place this week but has been rescheduled.
When asked to comment, an NHS Fife spokesperson said: “We are unable to comment in detail on matters relating to individual members of staff, however, despite some reports, we can confirm there is no conduct hearing scheduled to take place imminently in this case.”
What MSPs have said about the tribunal
The Scottish Conservatives criticised the Scottish National Party (SNP) this week after the party refused to publish a statement on the provision of single-sex spaces in Scotland.
The Tories had called for the SNP-led Scottish Government to provide clarity on the issue amid the ongoing employment tribunal.
Russell Findlay speaking at first minister’s questions
Parliamentary business minister Jamie Hepburn cited a lack of time, short notice and the live legal proceedings as the reasons why the government would not provide a statement to parliament.
Today, during first minister’s questions, Scottish Conservatives leader Russell Findlay raised the issue of the NHS Fife tribunal.
“Despite sustained efforts by my party, Scotland’s parliament does not want to talk about a case that everyone across Scotland is talking about, so we’re going to talk about that right now,” he told Scottish Parliament.
He asked first minister John Swinney if he agreed that every woman in Scotland should be entitled to women’s spaces, and to be able to say this, without losing their job.
In response, Mr Swinney said he would not comment on the NHS Fife tribunal specifically, warning that he would “be in danger of breaking the law”.
John Swinney speaking at first minister’s questions
On a general level, he confirmed that the Equality Act 2010 does allow provision to exclude a trans person from single-sex facilities, but that these decisions must be made “on a case-by-case basis”.
Meanwhile, Scotland’s health secretary Neil Gray was also questioned this week on whether he had concerns about Ms Peggie’s treatment, during a visit to Queen Margaret Hospital in Dunfermline.
In response, he said: “I think that’s a process for NHS Fife to deal with. I am not here to comment on that.
“That is not fair or right to do so when a process is underway in a tribunal and any disciplinary is live.”
When asked if he had confidence in the management of NHS Fife, Mr Gray said: “Of course I do.”
NHS Fife’s position
NHS Fife’s most recent statement on the tribunal is as follows: “NHS Fife considers it inappropriate to comment during the employment tribunal.
“It is important to recognise that at the heart of this case are two employees, who should be treated with kindness and respect.
“As an organisation, NHS Fife remains committed to upholding its duty of care to all employees.”
