Head of nursing ‘can't recall' risk assessment behind Sandie Peggie's suspension
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?'
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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