Fife NHS head of nursing 'can't recall' risk assessment behind Sandie Peggie's suspension
The head of nursing at NHS Fife has told an employment tribunal she cannot recall seeing a risk assessment which led to the suspension of nurse Sandie Peggie.
Gillian Malone said she perceived that allegations about Ms Peggie confronting transgender medic Dr Beth Upton were "unacceptable".
Ms Peggie was suspended after she complained about having to share a changing room with Dr Upton at the Victoria Hospital in Kirkcaldy, Fife - where they both worked - on Christmas Eve 2023.
She was placed on special leave and then suspended after Dr Upton made an allegation of bullying and harassment and cited concerns about "patient care".
Ms Peggie has lodged a claim against Fife health board and Dr Upton, citing the Equality Act 2010, including sexual harassment; harassment related to a protected belief; indirect discrimination and victimisation.
On Thursday, Ms Malone, told the tribunal she perceived a Datix report from January 3, 2024 regarding a conflict on Christmas Eve to be "a discriminatory allegation".
She said she had no role in the investigation, that she had never met Ms Peggie, and had no awareness of "tension" between either the nurse or Dr Upton. But she said she was aware of the nurse's concerns due to an email from August 2023.
Ms Malone told the tribunal the decision to suspend Ms Peggie was made following a risk assessment carried out by Esther Davidson, the nurse's line manager, however when asked if she had seen the risk assessment, she said: "I can't recall."
Giving evidence, she said: "When I read content of Datix I thought the comments were concerning.
"At this time they were allegations, I did believe there was behaviour in there which could constitute bullying and harassment which were of concern and could require investigation."
She added: "Within original Datix there is a comment that there has been other work-related incidents."
During cross-examination by Ms Peggie's barrister, Naomi Cunningham, Ms Malone - the most senior staff member to appear at the tribunal - said she agrees there are two biological sexes and that sex is a "medically salient fact".
Ms Cunningham read from an email sent by an HR worker, which said: "We discussed suspension being last resort and options to mitigate risk...
"Esther felt it would be almost impossible to keep them apart so spoke to Gillian Malone... she believes there is a patient safety issue due to seriousness of the allegation and therefore wishes to suspend."
Ms Cunningham said: "It looks as though you were essentially behind the decision to suspend." Ms Malone said: "It was Esther who completed the risk assessment."
She was also asked about an email titled "Formal Complaint" sent by Dr Upton on June 11. Ms Cunningham then suggested the reason Ms Peggie was suspended was "because she had told Dr Upton she wasn't happy about him using the women's changing room".
Ms Cunningham said: "That is the first documentary trace shown to the tribunal of the document 'Formal Complaint' which contains earlier incidents, being passed on to anyone from hospital management at all. Do you say that document was already in the hands of somebody, either as a printed out statement or sent as an email, before June 11?"
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Ms Malone said: "I'm not aware of that." Ms Cunningham said: "Do you agree that if the tribunal finds that the reason for suspension was about the incident on Christmas Eve and wasn't about the prior allegations relating to patient care, that wasn't sufficient justification for suspension?"
Ms Malone said: "The justification for suspension was based on a risk assessment which wasn't undertaken by me."
Asked to identify what she perceived to be most unacceptable in the allegations made by Dr Upton, Ms Malone replied: "I find it unacceptable that any colleague would confront another colleague in the manner described."
She added that Ms Peggie should have raised concerns through her line manager rather than "face-to-face on Christmas Eve".
Ms Cunningham said: "If the tribunal finds that the claimant didn't ask about his genes, would you say otherwise that was a point she was entitled to make, that he shouldn't be there? If she said to Dr Upton 'I don't think you should be here because you're a man', even if she didn't say anything about chromosomes?"
Ms Malone said: "I think that was already raised back in August, I wouldn't have expected that to be face-to-face on Christmas Eve."
Ms Cunningham added: "I'm suggesting that by challenging Dr Upton's presence in the changing room she was complaining he was harassing her; it was her rejection of that harassment which gave rise also to the disciplinary and suspension, it was her refusal to tolerate what he was doing."
Ms Malone said: "It was the manner in which she raised it." The tribunal continues.
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Emails between witnesses discussing an investigation into a gender critical nurse who was suspended following a dispute with a transgender doctor 'should not have been written', a consultant told a tribunal. Sandie Peggie was suspended after she complained about having to share a changing room with transgender medic Dr Beth Upton at Victoria Hospital, Kirkcaldy, Fife, on Christmas Eve 2023. She was placed on special leave after Dr Upton made an allegation of bullying and harassment and cited concerns about 'patient care'. Ms Peggie has lodged a claim against NHS Fife and Dr Upton, citing the Equality Act 2010, including sexual harassment; harassment related to a protected belief; indirect discrimination; and victimisation. The tribunal resumed in Dundee on July 16 after an initial set of hearings in February. On Tuesday, Dr Kate Searle, an emergency medicine consultant, gave evidence and denied 'deliberately concealing' an email sent on January 5, 2024, by fellow consultant Maggie Currer, which included six potential witnesses plus Dr Upton. A judicial order was made in January by the tribunal, however documentation emerged during the hearings in February and an IT trawl was commissioned which Dr Searle said all clinicians involved complied with. Barrister Naomi Cunningham, representing Ms Peggie, said: 'I want to suggest you deliberately concealed it to conceal wrongdoing of colleagues.' Dr Searle said: 'It would be dishonest to do that and I'm a doctor who acts as honestly as I can at all times.' In her evidence, Dr Searle said that she had no concerns about Dr Upton's allegations as the General Medical Council requires 'honesty and integrity'. However, she said she was 'never informed' that a referral to the Nursing and Midwifery Council had been made, the tribunal heard. She said that she emailed Dr Upton with others included later in January to give an 'update' on the investigation. But during cross-examination, Dr Searle admitted 'that we should not have written these things in a group email to witnesses'. Ms Cunningham said the email on January 5, 2024, was 'seriously embarrassing to the respondents' and said it 'appears to be an intention to set up and co-ordinate a group who should not be talking about this as they're witnesses'. She added: 'It says 'information must not be shared outside this group as risk of foot in mouth syndrome – it is quite a serious risk of foot in mouth syndrome'.' Dr Searle said: 'I can appreciate that in hindsight we should not have written these things in a group email to witnesses.' Ms Cunningham quoted from Dr Upton's evidence, including that using female changing rooms was 'a thing I have been instructed to be the most appropriate', and describing biological sex as a 'nebulous dog whistle'. 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I was suggesting ways that you might manage a situation when two parties are uncomfortable. 'We would have discussed, if Dr Upton felt very uncomfortable and it was affecting them in coming to work, then it would have been appropriate to take it further, whether it's just a discussion between parties to say how can we work through this together, with compassion and kindness and to make sure everyone is safe.' Cunningham put it to Searle that Peggie was clearly feeling uncomfortable with sharing facilities with Upton, after being told about the two occasions in which the nurse self-excluded from female changing rooms. The lawyer asked: 'What steps did you take to offer her any compassion or kindness?' Searle replied: 'I didn't make that approach.' Meanwhile, Searle was also confronted with emails between witnesses involved in the investigation into Peggie's conduct. An email sent on January 5, 2024, stated that 'information must not be shared outside this group as risk of foot in mouth syndrome — it is quite a serious risk of foot in mouth syndrome'.' Searle said 'in hindsight we should not have written these things' but denied deliberately attempting to 'conceal the wrongdoing of colleagues.' The email had not been provided initially in disclosures of evidence by NHS Fife. The tribunal continues.
