Phone notes made by trans doctor after nurse dispute were edited, tribunal told
An employment tribunal was told on Friday that NHS Fife did not commission a forensic or in-person examination of Dr Beth Upton's phone in May 2025.
The health board's security analyst 'did not have a technical answer' for discrepancies on dates on Google Notes made by Dr Upton, the tribunal heard.
Sandie Peggie was suspended after she complained about having to share a changing room with Dr Upton at Victoria Hospital in Kirkcaldy, Fife, on Christmas Eve 2023.
The nurse 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 heard entries on Google Notes had 'discrepancies' between the date of editing and date of creation.
Independent IT expert Jim Borwick, director of KJB Computer Forensics Consultancy, was commissioned by Ms Peggie's representatives and agreed he was suggesting the doctor 'was trying to mislead' the tribunal.
In a report, Mr Borwick wrote 'Dr Upton is silent on fact that Notes can be rearranged with relative ease', and that he was 'perplexed' and 'at a loss' as to how the discrepancies had occurred, and was told 'notes did not include patient care allegations Dr Upton made about Ms Peggie', the tribunal heard.
One note from December 18, 2023 logged 'working nights, won't make eye contact, won't acknowledge my presence, haven't had direct conversation but can feel the dismissal/hostility', which was edited on December 26 at 1.21am, the tribunal heard.
Mr Borwick said: 'In addition to text on that date, this had been added so it is not contemporaneous.'
He confirmed he was 'suggesting that Dr Upton is trying to mislead the tribunal', when asked by Jane Russell KC, representing NHS Fife and Dr Upton.
Ms Russell said: 'When you said Dr Upton is silent on fact that notes can be rearranged, you're suggesting that Dr Upton is trying to mislead the tribunal?'
The IT expert said: 'I suppose that's my comment, yes.'
Ms Russell asked if he had been instructed 'to come up with explanation that there were lies on the part of Dr Upton' and to 'undermine Dr Upton's account of patient care allegations'?
The witness said: 'I don't think we were trying to undermine anything, it was just a case of trying to look at these notes.'
He added: 'I was told to recover notes about patient care allegations; no reason was given, just to recover those notes.'
He suggested a Teams meeting should have been recorded, and that screenshots could have been 'superimposed' on notes.
Ms Russell said in one screenshot 'the conundrum is that the edited date predates the created date', and asked if 'the only explanation for discrepancy is that Dr Upton is lying about creation dates'.
The witness said: 'I can't recreate this, Mr Donaldson [Peter Donaldson, information security manager for NHS Fife] can't; this can't happen. It just can't happen that way.'
However, Ms Peggie's junior counsel, Charlotte Elves, said she was 'astonished' at a suggestion that anyone 'would have instructed an expert to lie, or that an expert would accept such instructions'.
The tribunal heard a note titled 'weird incident 26.08.23' was timestamped showing it was created on October 26, 2023, according to Google.
The tribunal also heard evidence that Dr Upton was remotely supervised at one point during a Teams call by Mr Donaldson.
Giving evidence, Mr Donaldson said: 'I don't believe Dr Upton was trying to mislead us in any way.
'I completely agree this is how Google presents; on the face of it the October date is the earliest date. I don't dispute that. The notes supplementary to that are the same.'
Ms Elves said: 'This quandary that we've got about creation on October 26, as I understand it, there's no understandable technical explanation?'
Mr Donaldson said: 'Not that I'm aware of.'
Ms Elves said: 'You say you don't believe Dr Upton was trying to mislead the tribunal but presumably accept that is one explanation for this inexplicable phenomenon?'
The witness said: 'It is a possibility but I don't believe that's the case.'
Ms Elves said: 'Going back to apparent difficulty with the screenshots, I think you told the tribunal that you can't fathom any technological explanation; do you accept that one explanation for images that purport to show the inexplicable is they have been manipulated?'
Mr Donaldson said: 'I can't say it's impossible.'
The tribunal continues.
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