Sandie Peggie: NHS Fife nurse accused of 'judgement and hostility' that 'do not deserve' Equality Act defence

In the second day of the final submissions of the ground-breaking employment tribunal, lawyer Jane Russell said Ms Peggie holds “intolerant views” towards “people from ethnic minorities, gay people and trans people”.

The KC said this position, and not the fear of sharing a changing room with a trans woman, was what had prompted her to complain about Dr Beth Upton.

The employment tribunal between Ms Peggie, NHS Fife and Dr Upton in Dundee heard from Naomi Cunningham, for the Kirkcaldy nurse, and Jane Russell KC, for the respondents.

However, a verdict in the long-running case will still be months away, with employment judge Sandy Kemp saying a judgment date was “very difficult” to specify, “but not before November and certainly not in November”.

The case centres on an altercation on Christmas Eve 2023 when Ms Peggie and Dr Upton, who was born male, but identifies as a woman, were both in a woman’s changing room in the Victoria Hospital.

Accounts of the dispute differ, but Ms Peggie was placed on administrative leave before being suspended and put through a disciplinary process before all allegations against her were dropped by NHS Fife.

Meanwhile, she began employment tribunal proceedings for harassment and discrimination.

On Monday, Ms Cunningham accused NHS Fife of being in the “grip of a delusion” that prompted a “witch hunt” and a “heresy hunt” against Ms Peggie. Also in submissions on Monday, Ms Russell had considered the allegations of harassment against Dr Upton.

“Dr Upton neither said nor did anything to the claimant that was objectively harassing, still less conduct of a sexual nature,” Ms Russell said.

The lawyer said the harassment and victimisation case against the health board should not stand because Ms Peggie “simply complains about everything that happened after she realised that she had not got away with bullying and harassing Dr Upton in the female changing room on Christmas Eve”.

Finishing her submissions on Tuesday, Ms Russell said Ms Peggie’s conduct on Christmas Eve was “objectively objectionable” and her “decision to confront Dr Upton was born out of anger, not fear”.

Ms Russell said: “It is surprising that the claimant argues that Dr Upton intended to harass the claimant. That was not the tenor of Dr Upton's evidence at all. The claimant relies on Dr Upton being taller, a doctor and middle class. Again, that is absurd.

“Kate Searle [Dr Upton's line manager] is all those things and in fact taller than Dr Upton. And the idea that Kate Searle's entry into the female changing room would or could be harassment related to sex or sexual harassment is ridiculous.

“If being middle class is a signifier of an intention to harass, then most of the people in this room are in trouble.”

Ms Peggie is a band five A&E nurse who has worked at her hospital for more than 30 years. Ms Russell described Ms Peggie’s position as “extremism” and said there was “no evidence” women “even have a problem with sharing such spaces with trans people as a matter of generality”.

She went on to say Dr Upton and Ms Peggie have “contrasting characters” and this is “one of the inconvenient truths that hinders the claimant’s case”.

Ms Russell added: “We invite the tribunal to accept that the claimant held strong and intolerant views towards people from ethnic minorities, gay people and trans people and her initial denial that this was the case was incorrect, because it was clearly inconsistent with the evidence.”

She described Ms Peggie’s view of Dr Upton as that of “strong dislike, disgust and mockery”, adding the nurse’s stance towards Dr Upton was one that “goes beyond mere intolerance” with “no trace of ordinary kindness”.

Ms Russell raised earlier evidence that Ms Peggie had used racial slurs to describe Pakistani people and had made jokes about the 2022 Pakistan flood victims.

She said: “In relation to her views on ethnic minorities and trans people, she was not able to keep those views at home. They bled into the workplace.”

The lawyer added: “It is clear that Dr Upton was universally praised and described as a ‘very gentle caring practitioner’. There is certainly no trace in the evidence to justify the comment made by, presumably on instruction, Ms Cunningham yesterday, that Dr Upton was smug.

“I ask you to observe how with quiet dignity, Dr Upton endured a cross examination in which she was compared with a torturer, repeatedly and deliberately misgendered and her lived experience as a trans person was dismissed as cosplay.”

In her closing remarks, Ms Russell said “kindness, thoughtfulness and respect are values that are central to the National Health Service” and these should be expected from all nurses, “particularly experienced ones”.

“The confrontational way in which the claimant approached and treated Dr Upton has no place in dealing with the sensitive matter of somebody going through a transition process,” the KC said. “The claimant's behaviour in confronting the young doctor in a professional setting in such a way that ought not to deserve protection of the Equality Act.

“We need to recognise that people come in all shapes and sizes, and meet those differences with kindness and understanding, rather than as the claimant unfortunately did with judgement and hostility.”

Mr Kemp used part of the afternoon session of the tribunal to ask final questions of both Ms Cunningham and Ms Russell. He asked Ms Russell directly how she would define biological sex, following the For Women Scotland Supreme Court judgment that found “sex” in law to refer to biological sex.

Mr Kemp also asked Ms Russell to say what she thought Dr Upton’s sex is. “It’s difficult for me as a lawyer to say what biological sex means practically,” she said. “For Women Scotland has said what it says about biological sex and Dr Upton was not talking as a lawyer.”

The tribunal spent time discussing whether new evidence submitted at the 11th hour by the respondents in the case should be accepted.

Ms Cunningham asked the tribunal to consider the issue immediately and avoid further delay to the tribunal. She said Ms Peggie, who was watching the proceedings remotely as she was on holiday, was “in tears” at the distress caused by delays.

Ms Cunningham said “experienced counsel” such as Ms Russell should not have added more evidence at this late stage and suggested NHS Fife could take legal action against their lawyer.

Mr Kemp said he would take some time to consider the issues involved and so declined to take a decision on Tuesday.

Mr Kemp previously said the tribunal had set aside October 14 to 17 to consider its deliberations due to “diary commitments” meantime. However, new dates will require to be set given the new matter for the tribunal to consider.