Dr Upton did not sexually harass Sandie Peggie says official

The Herald Scotland

6 days ago

The senior official at the health board suggested Ms Peggie should have gone to her line manager instead.
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Ms Peggie, an A&E nurse at Victoria Hospital in Kirkcaldy, is suing her employer after being suspended following a confrontation with the transgender medic on Christmas Eve 2023.
When she entered the changing room and saw Dr Beth Upton, she said, in her view, the medic was a man and should not be in the room.
Dr Upton made a formal complaint shortly afterwards.
Following their complaint, Ms Peggie was placed on 'special leave' in late December 2023 and suspended in January 2024, pending an investigation into 'alleged unwanted behaviours towards another member of NHS Fife staff'.
During the subsequent investigation, Dr Upton made further allegations about Ms Peggie, including a claim she left a patient 'unseen'.
All four gross misconduct allegations were dismissed by NHS Fife on Tuesday following an investigation.
Ms Malone told the tribunal that Ms Peggie had raised concerns in August 2023 by email.
NHS Fife had taken advice at the time, she said, and determined that Dr Upton was entitled to use the female changing room.
Ms Malone told the tribunal: 'I find it unacceptable that any colleague would confront another colleague in the manner described.
'I think that was already raised back in August. I wouldn't have expected that to be face-to-face on Christmas Eve.'
She added: 'The female changing room was not the right space to raise concerns.'
Asked by Ms Peggie's counsel, Naomi Cunningham, whether there was any way for Ms Peggie to express her views about sharing facilities with a trans colleague without facing discipline, Ms Malone said: 'I believe there were other options. She should have taken it to her line manager.'
Later, during further questioning, Ms Cunningham asked: 'So it was discriminatory to raise the issue at all?'
Ms Malone replied: 'Yes.'
The tribunal also heard evidence about the decision to suspend Ms Peggie. Ms Malone said this had followed a risk assessment conducted by the nurse's line manager, Esther Davidson.
When asked whether she had seen the risk assessment herself, she said: 'I can't recall.'
A document from NHS Fife HR discussed the matter, stating: '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 suggested this showed Ms Malone was 'essentially behind the decision to suspend.'Ms Malone insisted: 'It was Esther who completed the risk assessment.'
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The hearing also raised questions about how the internal investigation was handled, particularly regarding confidentiality.
The tribunal heard that on December 29, 2023 — four days before Ms Peggie was suspended — Dr Kate Searle, Dr Upton's line manager, emailed more than 20 NHS consultants with Dr Upton's version of events.
Ms Malone said she disagreed with that decision.
'It should not have been handled in that way,' she said.
Ms Malone agreed it was inappropriate, though she did not directly respond to a question about whether the 'integrity and confidentiality' of the investigation had been 'hopelessly lost'.
Ms Cunningham contrasted this with the treatment of Ms Peggie, suggesting there had been an effort to prevent her from discussing the case or speaking to colleagues who may have shared her concerns.
The tribunal was shown an email referencing a July 2024 media inquiry, which although not naming either party, discussed the case in detail. Ms Peggie was later reminded of her duty to maintain confidentiality.
Ms Malone rejected that suggestion, saying she did not believe Ms Peggie's gender-critical views were being 'intentionally suppressed'.
The tribunal also heard Ms Malone agree that there are two biological sexes and that sex is a 'medically salient fact'.
Ms Cunningham asked Ms Malone about a hypothetical male NHS worker called Peter, who walked in on a female colleague changing. She asked the manager if that violated boundaries and if she thought it was an example of sexual harassment.
Ms Malone said it was unwanted behaviour and harassment.
Ms Cunningham then asked if a male member of staff had installed a webcam in the female changing room, whether that would count as sexual harassment.
She said it would and she agreed he would be suspended.
Ms Cunningham then asked what would happen if Peter said he was a woman — would the investigator say he was obviously a man and not trying to change?
Ms Malone agreed.
During re-examination by counsel for NHS Fife, Jane Russell KC, Ms Malone was 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.