What next for the Sandie Peggie employment tribunal?

BBC News

2 days ago

For the past seven months a nondescript office building somewhere in Dundee has been the unlikely setting for one of the most high-profile legal cases in Britain.A clash between a trans doctor and a nurse in the changing room of a hospital in Fife has been played out and examined in great detail during an employment tribunal which has taken evidence across 20 days.More than 15 witnesses have been called, and hundreds of thousands of pounds spent on the legal case.For the people involved, the tribunal was always going to be important, but levels of interest across the country and even around the world have been unprecedented.Now, all the evidence is completed. What next?
When will there be a verdict in the Sandie Peggie tribunal?
The tribunal will resume on 1 September, for two days of oral submissions summarising both sides of the case.The three person panel will then take time to consider a written ruling - a process that could take some time.Graham Mitchell, a partner with the employment, pensions and immigration team of law firm Clyde & Co, told BBC Scotland News a decision would likely take months to reach. He said: "Eight weeks used to be the guideline for a decision, but there is no way a decision will be made within weeks – this will take months. "Whatever happens next, the findings of facts will be set in stone. Any appeal afterwards, which could in theory go all the way up to the Supreme Court, will involve poring over not just the facts, but also the way they have been expressed and if the law has been applied to the facts. "Any judge will want to get the decision spot-on."
How is the employment tribunal decision reached?
The panel's verdict will be reached via a plain majority, and judge Sandy Kemp has no extra privileges for his vote in the matter. Any ruling could either be fully or partly in favour of one side in the case, with a number of possible legal remedies for the losing party, from paying compensation to covering witness expenses. Should Ms Peggie win, the main remedy sought would likely be for injury to feelings - a specific remedy with guidelines known as the Vento Bands used to determine compensation amounts.Payments start at £1,200 for less serious cases and rise to £60,700 for the most serious - but even those can be exceeded for "exceptional cases." Potentially both Dr Upton and NHS Fife could pay compensation if the ruling is in favour of Ms Peggie, though employment lawyer Mr Mitchell believed it would be more likely just the health board paying.He also said it was "relatively rare" for expenses to be awarded against the losing party and only if certain tests are met - relating to whether a party "acted vexatiously, abusively, disruptively or otherwise unreasonably" during proceedings.Another test applied would be if any claim had "no reasonable prospect of success". He said other cases - such as the Supreme Court ruling on gender - should not be expected to impact the tribunal ruling."The Supreme Court is another case, in another scenario entirely. People are thinking this decision will affect everyone, but what is found to have happened in these alleged incidents – they are only relevant to this case. "The judge has to rule on the balance of probabilities about what happened."
What is the case about?
The employment tribunal case was brought by Sandie Peggie, a nurse who has worked for the NHS for 30 years.She was suspended after she complained about a trans woman using the female changing rooms in a Kirkcaldy hospital's A&E department. She claimed Dr Beth Upton, who is biologically male but now identifies as a woman, started to undress in front of her when they were alone in the room on Christmas Eve 2023.The duo exchanged words, the content of which was disputed throughout the tribunal.During her evidence, Ms Peggie confirmed she called Dr Upton a man and said she believed the medic was a biological male.She acknowledged that this would be considered harassment under NHS Fife's diversity and equality guidance.Following the incident Dr Upton made an allegation of bullying and harassment against the nurse, and Ms Peggie was suspended, pending an investigation, in January 2024. Ms Peggie claimed her experiences after the incident amounted to harassment and took legal action against the health board and Dr Upton, citing the Equality Act 2010.
Dr Upton claimed to have previously witnessed other examples of Ms Peggie's behaviour before the Christmas Eve incident, including leaving a patient in a cubicle due to Dr Upton's presence - something vehemently denied by the nurse.Dr Upton's legal team suggested these alleged other incidents pointed to bullying behaviour by Ms Peggie, who denied she had waged a "vindictive campaign" against the doctor.The tribunal also heard hours of evidence about how NHS Fife carried out its investigation, with Ms Peggie's legal team attempting to show it was mishandled.A number of other medics gave evidence regarding whether confidentiality was broken by emails sent among staff discussing the case - including to possible witnesses to the internal investigation.Look back at the evidence which come before the tribunalThe incidents alleged by Dr Upton happened before the UK Supreme Court unanimously ruled that a woman is defined by biological sex under equalities law.Whether the Supreme Court ruling affects the tribunal's findings is uncertain, as NHS guidance at the time of the complaint was that trans men and women were allowed to use the changing rooms that aligned with their gender identity.Groups on both sides of the transgender debate - a heated issue that dominates social media platforms - have been drawn to the tribunal, including women's rights campaigners Sex Matters and the charity Scottish Trans.
What happened with NHS Fife's disciplinary proceedings?
Ms Peggie was cleared of gross misconduct following disciplinary proceedings by NHS Fife - a decision announced on 16 July, the same day the tribunal resumed after a five month pause in proceedings.The nurse had faced allegations of misconduct, failures of patient care and misgendering Dr Upton.NHS Fife said an internal hearing found there was "insufficient evidence to support a finding of misconduct".NHS Fife confirmed no formal sanction had been imposed on the nurse and that the review panel decided a "facilitated reflective practice discussion" would be appropriate.
Timeline of the Sandie Peggie tribunal
How much has the tribunal cost?
It was revealed earlier this year NHS Fife had spent nearly £220,500 defending itself - a number that will have escalated following the second round of evidence in July.NHS Fife is only liable for the first £25,000 of the litigation costs, with the remaining money paid by a scheme set up to protect health boards.Under the Clinical Negligence and Other Risks Indemnity Scheme, the Scottish government's health and social care directorate is initially responsible for costs above the £25,000 threshold.This money is then recouped from member bodies in their annual contributions to the scheme which aims to ensure frontline clinical services are not affected.It is not known who is financially supporting Ms Peggie's case.A question by NHS Fife's legal team asking who is backing her was withdrawn, as it breached privilege laws.