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.'
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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