Sandie Peggie was not sexually harassed by trans doctor, top nurse claims

Top nurse Gillian Malone was questioned as part of the ongoing employment tribunal between Ms Peggie and Dr Upton, and said the disagreement over sharing a single-sex changing room should not have been a confrontation.

Ms Peggie, a nurse at Victoria Hospital’s A&E department in Kirkcaldy, 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.

It comes after she was suspended from her job over allegations of bullying and harassing Dr Upton after refusing to share the female changing room with the trans medic.

At the tribunal in Dundee on Thursday, Ms Malone said she did not agree with the claim Ms Peggie had been sexually harassed by Dr Upton’s presence in the changing room.

She did however allege that what had happened between the pair was “unprofessional behaviour” on Ms Peggie’s part, and that Ms Peggie’s assertion that Dr Upton is a man constituted “unacceptable” conduct.

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Ms Malone added she perceived the allegations about Ms Peggie confronting Dr Upton were “offensive”, “inappropriate” and that “derogatory terms” had been used.

She added: “I find it unacceptable that any colleague would confront another colleague in the manner described.”

The incident happened on Christmas Eve, 2023 and early in the new year, Ms Peggie was suspended after Dr Upton complained. At Thursday’s hearing, Ms Malone insisted the suspension was not an attempt to silence Ms Peggie’s gender critical beliefs, maintaining she was suspended because of the outcome of a risk assessment.

Earlier in the day Ms Malone admitted she could not recall seeing the risk assessment which led to Ms Peggie’s suspension.

She said Dr Upton had “raised a number of serious allegations that could constitute bullying and harassment” which required an investigation, which is why Ms Peggie was suspended.

Yesterday, it emerged Ms Peggie had been cleared of an internal disciplinary investigation which alleged she had misgendered Dr Upton and put patient safety at risk by refusing to work with the medic.

The hearing also heard the department “took guidance” when deciding to continue allowing Dr Upton to use the female changing room, despite a complaint from a nurse’s solicitor.

Ms Malone said this was the “right thing to do” as it followed the guidance at the time, but admitted it was her responsibility as head of nursing to “speak up” on issues like this.

After her suspension, Ms Peggie’s solicitor asked the health board if she “could be assured of a single-sex space to change in” when returning to work - the tribunal heard NHS Fife did not act on this.

Service manager Lottie Myles sent an email to Ms Malone on March 7, 2024 after a meeting with Ms Peggie, asking why Dr Upton could not be asked to change elsewhere.

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.”

That guidance had come from equality and human rights lead officer Isla Bumba, who was questioned by the tribunal on Wednesday. During her questioning Ms Bumba said she researched the policies of other health boards as there was no regional policy in place for trans employees in Fife.

Ms Bumba had advised “it could be discriminatory” to not allow a trans person access to the facilities that aligned with their acquired gender.

At Thursday’s hearing Naomi Cunningham, the barrister acting for Ms Peggie, said: “The result of refusing to give her that guarantee of no men in the 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 asserted: “We took advice and the guidance at the time was that Beth could use the female changing facility.”

Ms Cunningham also asked Ms Malone to imagine a scenario where a male doctor, who was born a man and presents as male, called Peter was in the female changing rooms, and asked if this was deliberately violating female members of staff. Ms Malone said this was unwanted behaviour, but did not constitute sexual harassment.

The tribunal then heard the confidentiality and integrity of the investigation into Ms Peggie had been “hopelessly” compromised after Dr Kate Searle, Dr Upton’s line manager, sent out an email to all emergency department consultants detailing Dr Upton’s version of events.

Dr Searle then sent out a second email detailing this a few weeks later, which was sent to Ms Peggie, Dr Upton and other potential witnesses.

Ms Malone agreed with Ms Cunningham that the email in question should not have been sent out to everyone.

This comes after Ms Peggie was given a reminder about confidentiality after press reports on the incident were published in July 2024.

Ms Cunningham suggested this reminder was to “silence her”. She then referred to emails sent in March 2024 which referred to Ms Peggie “misgendering” and the “risk” of Ms Peggie “using he/him which may cause unrest in the wider NHS team”.

Ms Cunningham added: “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 then said the remainder was primarily about “preventing her ability to organise with others who shared her concerns” and to “prevent her expressing gender-critical beliefs”. Ms Malone said she did not agree with this point.

The tribunal is due to sit for another nine days.