Trans row nurse Sandie Peggie was viewed as misbehaving, lawyer claims
Dr Kate Searle, an A&E consultant, recalled being told about two occasions when Sandie Peggie left the women's changing facilities at Victoria Hospital, Kirkcaldy, when Dr Beth Upton entered, causing the doctor to feel 'uncomfortable'.
She said that Peggie could have been reported to her manager, but Upton, who is biologically male but identifies as female, deciding against pursuing the matter further.
Peggie confronted Upton on the third occasion on which they met in the female-only space, on Christmas Eve 2023, claiming the doctor had no right to be there.
This led to Peggie's suspension from work and an 18-month internal investigation, in which the nurse was cleared last week. Peggie had been warned that she could have been sacked, after a 30-year career, had the health board found against her.
The nurse is taking action against NHS Fife and Upton, claiming she faced harassment and discrimination as a result of the changing rooms policy.
Searle was Upton's line manager and, giving evidence on Tuesday, said that the doctor had informed her about the two occasions, in August and October 2023, in which Peggie had left the changing room when Upton entered, without saying anything.
Documentation showed that Upton had been given the option by Searle to 'take the matter further' in late October that year.
Searle said that, had Upton pursued this option, it could have meant an informal conversation 'between parties' or talking to Peggie's manager.
'At the time you discussed this with Dr Upton both you and he [Upton] considered Sandie's choice to remove herself from the changing room if he was there, to be misbehaving, didn't you?' Naomi Cunningham, Peggie's lawyer, said. 'She was behaving badly and making him [Upton] feel uncomfortable.'
Searle replied: 'Beth felt uncomfortable that Sandie appeared to not want to engage, she was the only one behaving like this and that was why Beth felt uncomfortable with someone behaving differently like that. I don't agree we would have classed it as misbehaviour.'
The tribunal has previously been told how Searle rallied behind Upton after the doctor raised a formal complaint about the changing room row. Upton later took sick leave due to the anxiety resulting from the confrontation.
The consultant said she had checked when introducing Upton to the department, in August 2023, that the doctor was comfortable using the female facilities.
Searle agreed with Cunningham that she had proceeded on the basis that it wasn't 'anyone else's business' whether Upton, who began transitioning to live as female in January 2022, was going to use the women's changing room or not.
'Beth identifying as a female has every right, under the Equality and Human Right Commission Act [sic] to use the facilities under the gender in which she identifies,' Searle said.
However, she went on to admit that many women may feel uncomfortable about taking their clothes of in the presence of a man.
Cunningham put it to Searle that her suggestion that she might have facilitated a conversation between the nurse and Upton 'about why she wasn't willing to take her clothes off in a room that he was present in' would have been 'a very long way from kind or compassionate' to Peggie.
The consultant had earlier said possible approaches to resolve the situation of Peggie leaving the changing rooms when Upton entered could have involved a discussion of 'views between people' or a speaking to Peggie's 'line manager.'
Searle added: 'That's not how I would have directly approached them nor how I did directly approach it. I was suggesting ways that you might manage a situation when two parties are uncomfortable.
'We would have discussed, if Dr Upton felt very uncomfortable and it was affecting them in coming to work, then it would have been appropriate to take it further, whether it's just a discussion between parties to say how can we work through this together, with compassion and kindness and to make sure everyone is safe.'
Cunningham put it to Searle that Peggie was clearly feeling uncomfortable with sharing facilities with Upton, after being told about the two occasions in which the nurse self-excluded from female changing rooms.
The lawyer asked: 'What steps did you take to offer her any compassion or kindness?'
Searle replied: 'I didn't make that approach.'
Meanwhile, Searle was also confronted with emails between witnesses involved in the investigation into Peggie's conduct. An email sent on January 5, 2024, stated that 'information must not be shared outside this group as risk of foot in mouth syndrome — it is quite a serious risk of foot in mouth syndrome'.'
Searle said 'in hindsight we should not have written these things' but denied deliberately attempting to 'conceal the wrongdoing of colleagues.' The email had not been provided initially in disclosures of evidence by NHS Fife.
The tribunal continues.
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