Hospital was advised trans doctor could use female facilities, tribunal told
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.
At the tribunal on Thursday, Ms Malone said it was her responsibility to 'speak up' on issues around female nurses sharing a changing room with a transgender doctor, and said the 'department took guidance' when refusing to meet a request made by Ms Peggie's solicitor.
Service manager Lottie Myles sent an email to Ms Malone on March 7, 2024 following a meeting with Ms Peggie where she asked why Dr Upton could not be moved or asked to change elsewhere.
Despite Ms Peggie asking through her solicitor that when she returned to work she 'could be assured of a single-sex space to change in', the board did not act, the tribunal heard.
Ms Malone said: 'The department took guidance from the equality and human rights lead, and that wouldn't be what we would do.
'We took guidance that Beth could continue using the female changing facility.'
Cross-examining, barrister Naomi Cunningham said: 'The result of refusing to give her that guarantee of no men in female changing room would be that Sandie couldn't return to work safe in the knowledge that when she got dressed in the women's changing room, there would be no men there.'
Ms Malone said: 'We took advice and the guidance at the time was that Beth could use the female changing facility.'
The tribunal heard that on March 8, Ms Malone sent an email to HR worker Melanie Jorgensen and others that a 'further risk assessment is supported for returning SP to the workplace'.
Ms Cunningham said: 'It had already been established at end of December that there was no shift overlap between the claimant and Dr Upton in January so there was no need to keep them apart. That had already been established by January 3 when the suspension was put in place.'
Ms Malone said: 'I can't recall.'
Sandie Peggie and Dr Beth Upton worked at Victoria Hospital in Kirkcaldy, Fife, at the time (Jane Barlow/PA)
Ms Cunningham said: 'What seems to have happened is that the risk assessment has been done after a decision to continue suspension.'
She said confidentiality had been 'hopelessly lost' on December 29, 2023 when Dr Kate Searle sent an email to all consultants in the emergency department with Dr Upton's version of events, and again on January 12, 2024 when Dr Searle emailed about the incident – including Ms Peggie, Dr Upton and potential witnesses.
Ms Malone said: 'I don't think she [Kate Searle] should have done that.'
However on July 3, after press reports, Ms Peggie was given a reminder about confidentiality – which Ms Cunningham said was to 'silence her', and referred to emails exchanged on March 7 between Ms Malone and Ms Myles, which referred to 'misgendering' and the 'risk' of Ms Peggie 'using he/him which may cause unrest in the wider NHS team', the tribunal heard.
Ms Cunningham said: 'That tends to underline that the damage limitation is about preventing unrest in the workplace due to Sandie Peggie's use of correct sex pronouns for Dr Upton.'
She said 'prohibiting the subject matter' was primarily about 'preventing her ability to organise with others who shared her concerns', and to 'prevent her expressing gender-critical belief'.
Ms Malone said: 'I don't agree.'
During re-examination by counsel for NHS Fife Jane Russell KC, Ms Malone was asked if she believed commenting on chromosomes was 'gender-critical belief'.
She said: 'No I do not. I think it's an unwanted comment.'
Ms Russell asked if based on her knowledge of the allegations on Christmas Eve, she believed Dr Upton had sexually harassed Ms Peggie.
The witness said: 'No I don't believe Dr Upton sexually harassed Ms Peggie. I believe it was unacceptable behaviours, unprofessional behaviours which warranted investigation.'
The tribunal continues.
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Ms Peggie's legal team sought an order for Dr Upton's phone to be inspected by forensic expert Jim Borwick. However, this was rejected by the tribunal. They wanted to discover the date and time the notes were created and when they were edited. Mr Borwick is due to give evidence on Tuesday. The nurse's response The panel also sent supplementary questions to Ms Peggie. None were about patient safety. The first four were about her general use of pronouns. In a formal reply, Ms Peggie's solicitor, Margaret Gribbon, said a disciplinary hearing should 'proceed on the basis of concrete allegations of clearly specified allegations of misconduct, normally on a specified date. An invitation to an employee to make a general confession is neither usual nor fair." Asked how she refers to Dr Upton, Ms Peggie said: "Beth." She added: "Pronouns are not used to address people, so I do not use pronouns, either preferred pronouns, or correct sex pronouns, to address anybody, patients or colleagues." 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.
