Lawyers for nurse Sandie Peggie condemn 'irresponsible' statement from NHS Fife

The health board published the four-page document online while evidence was being heard in an employment tribunal brought by nurse Sandie Peggie.

Ms Peggie was suspended after she complained about having to share a changing room with Dr Beth Upton at Victoria Hospital in Kirkcaldy on Christmas Eve 2023.

The employment tribunal triggered "a threat of physical harm and sexual violence" against NHS staff, according to the health board’s statement.

After the statement was raised, Judge Alexander Kemp said he would assess it before making any public comment and the tribunal was adjourned for the weekend.

A Police Scotland spokesperson said: "We have received information and it is being assessed."

Meanwhile, Scotland’s Information Commissioner David Hamilton condemned the "petulant tone" of the statement and said he would investigate whether it amounted to contempt of court.

Mr Hamilton said: “The petulant tone of NHS Fife’s latest statement is quite remarkable but it is the contents that concern me most.

“They have now cast doubt upon the assurances they gave me regarding compliance with my Decision Notice.

“I will investigate further and if the Authority has not indeed fully complied with my Decision then I may report the matter to the Court of Session as a contempt of court.”

In the statement, NHS Fife said police had to be called after staff faced threats of “physical harm and sexual violence”, as the health board sought to defend its actions.

The update from NHS Fife also revealed that legal costs have increased by £38,000 in just one month.

NHS Fife said it was “having to defend” itself and wanted to answer questions posed by the press and politicians, addressing “misinformation” online.

It urged for respect for “the privacy of all those giving evidence”, following “significant and very polarised debate” on social media.

The statement said: “In some cases, however, what began as debate has evolved into much more worrying behaviour, including a threat of physical harm and sexual violence, which has required the involvement of Police Scotland.

It added that staff should be able to work “without being subjected to unacceptable personal attacks and trolling on social media”, and criticised Sex Matters, the charity which is funding Ms Peggie’s legal team, for allegedly “steering public opinion”.

It said: “The claimant’s case is being supported by Sex Matters, whose chief executive officer and co-founder was called as a witness by the claimant in the earlier hearing.

“The claimant’s barrister is also chair of Sex Matters.

“Other members of the organisation’s ‘advisory group’ have provided commentary to the media on a number of occasions where no reference is made to their direct involvement.”

NHS Fife later edited the statement, adding: "To be clear NHS Fife is not seeking to suggest that anyone involved with Sex Matters have contributed to the behaviour or issues mentioned above."

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The health board insisted that its actions in investigating Ms Peggie “were not punitive”, and reiterated that an investigation was launched due to allegations concerning patient care, which were not upheld following a disciplinary hearing on June 25.

The health board said: “While the claimant raised concerns about a trans woman’s use of a locker room, this was not the reason that NHS Fife’s internal investigation was initiated.

“As made clear during tribunal proceedings, the disciplinary process was initiated due to concerns raised about interactions with a colleague and patient care.”

It said that the 18-month investigation was “not of itself punitive” and said that the probe was believed to be “fair and impartial”.

The health board said that as of June 30, legal costs had increased to £258,831.31, an increase of almost £40,000 from May 31, when costs were£220,465.93, with the majority covered by Central Legal Office (CLO) and National Services Scotland (NSS) who administer the CNORIS Indemnity scheme.

It said: “NHS Fife is liable for the first £25,000 of costs associated with defending the case.”

The statement said: “The Health Board appreciates that there are deeply entrenched views on both sides of the debate around single-sex spaces and has never sought to stifle fair and reasoned debate on the topic, asking only that any media coverage is respectful, fair, balanced, accurate, and distinguishes fact from opinion.”

It added: “NHS Fife acknowledges the Supreme Court’s ruling and other developments in this area.

“Work is under way across the entirety of the health board’s estate (including toilets, changing and locker rooms) to identify areas where any adaptions may be required and schedule any work that may be necessary to improve facilities.”

Maya Forstater, chief executive of Sex Matters, said: “This is an extraordinary intervention from NHS Fife, even by the board’s standards.

“NHS Fife has dug itself into a reputational black hole.

“If the only way forward the board can see is to lash out, including by criticising Sex Matters, which has at all times acted with propriety and in pursuit of its charitable objects, that suggests desperation.”

When the statement was mentioned at the employment tribunal on Friday, Ms Peggie’s junior counsel Charlotte Elves said it caused “some concern”.

She said: "It is a matter of some concern that a party of proceedings seems to link a witness in these proceedings with the conduct of members of the public, including threats of physical violence."

She said this seemed "improper" action from NHS Fife, adding: "This is quite unusual conduct of a party in proceedings and we are concerned that it is irresponsible and unsafe in the context of what we already know and it is for that reason that we bring it to the attention of the tribunal."

Jane Russell KC, representing NHS Fife, said: “Unfortunately because this hearing has taken place in public, Fife’s witnesses have been exposed to a very unsafe environment and I’m afraid threats have been made to them as have threats been made to me.”

Judge Alexander Kemp said: “No participant whether witness, representative or participant should be intimidated and if that has happened its a matter for the criminal courts and Police Scotland.

“Obviously matters of defamation are not within our jurisdiction.”