Head of nursing ‘can't recall' risk assessment behind Sandie Peggie's suspension
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.'
Sandie Peggie and Dr Beth Upton both worked at Victoria Hospital in Kirkcaldy, Fife, at the time (PA)
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?'
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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Asked why she told colleagues before Christmas Eve that she would speak to Dr Upton directly, Ms Peggie said: "No one appeared willing to speak to Beth on behalf of myself or my colleagues. "I hope that by speaking to him personally, he might be able to realise he was making us feel uncomfortable by changing in a female changing area, and the reason why, in the hope he would understand and change elsewhere." She said she entered the changing room to change her trousers, which were soiled due to menstruation, and that the situation made her feel "embarrassed." Asked whether her feelings contributed to the interaction, she said: "Yes." Asked if she had discussed the incident with a supervisor, she replied: "I wasn't upset I was menstruating. "I was upset because my dignity as a woman was being violated because I was being forced to deal with the situation with a male being present in the female changing room at a time when I felt vulnerable and in dire need of privacy and a single-sex space. "I didn't feel comfortable speaking to the staff I was working with, especially as it was a personal and embarrassing matter. I was keen to go home, especially as it's Christmas Day, and discuss my upset with my husband and my family." She said the incident lasted just two minutes and that she hoped the conversation might help Dr Upton understand. Asked why she didn't report the matter, Ms Peggie said: "I was hopeful that Beth would accept my concerns and the reasons why I felt uncomfortable. "I tried to give him an example so he could appreciate the severity of the situation. I told them I had a difficult history with men." "I didn't think it was necessary to speak to anyone, because I was hoping, on reflection, Beth would understand." She said she was "upset that the interaction did not seem to have had any influence on the way Beth felt, and I realised from his reaction that he did not seem to care about the stress he was causing me." "I was left shaken following his response. It was on my mind throughout the shift, but I did not want it to impact my work." Sandie Peggie (r) with solicitor Margaret Gribbon (Image: Jeff J Mitchell/Getty) Ms Peggie denied ever referring to chromosomes. "I am a nurse and don't need to ask a person what their chromosomes are, because I already know. I deny referring to chromosomes during my interaction with Dr Upton." Asked about the reference to the Scottish prison story, she said: "It was in the media at the time. I was trying to give [Dr Upton] an example of how I and other women feel." Asked whether she treated Dr Upton with dignity and respect, Ms Peggie replied: "Yes, because Dr Upton's presence there and the board's decision to permit him to use a female-only changing room was unlawful. "I felt upset, humiliated and harassed to find him there, particularly when I had a menstrual flood to deal with. I remained as calm as I could, but I felt strongly that he should not be there. "His insistence that he was entitled to be there meant I felt I had no option but to try different explanations of why his presence made me and many of my colleagues uncomfortable. "I should not have been put in this position, and I handled it as well and as calmly as I could, given the difficult circumstances in which management had put me." NHS Fife's findings In a statement released on Wednesday, NHS Fife said: "The panel found that there was insufficient evidence to support a finding of misconduct." Ms Peggie's solicitor, Ms Gribbon, said her client was "relieved and delighted that this 18-month long internal process has concluded and cleared her of all allegations." The tribunal continues.
