An NHS trust was “extraordinarily negligent” for failing to disclose documents relating to an alleged “aborted” investigation into a nurse who objected to a transgender doctor using female changing rooms, an employment tribunal has heard.
Nurse Sandie Peggie, who has worked at the Victoria Hospital in Kirkcaldy, Fife, for 30 years, took the Fife health board and Dr Beth Upton to tribunal after being suspended following an incident on Christmas Eve 2023.
She lodged a complaint of sexual harassment or harassment related to a protected belief under s26 of Equality Act 2010 regarding three incidents when they shared a changing room – indirect harassment, victimisation, and whistleblowing – after being suspended over an allegation of bullying and harassment.
Dr Upton, who began working with Ms Peggie in the A&E department in August 2023, was named as the second respondent, with Fife Health Board the first respondent. The health board and Dr Upton are both represented by Jane Russell KC.
Evidence on Friday was postponed because Ms Peggie’s legal team requested documents relating to what they described as “career-ending allegations” made by Dr Upton about two incidents of failings of patient care, and suggested these were “unfounded”.
Barrister Naomi Cunningham said the health board had not complied with a judicial order made in January, and she suggested an investigation had been “aborted” and restarted, alleging efforts were made to “conceal” an initial investigation by Ms Peggie’s line manager.
Ms Cunningham called for further documents to be submitted for “equality of arms” and due to “extraordinarily high stakes” for both parties.
Counsel for NHS Fife said Ms Peggie’s manager had not been an “investigator”, but agreed to submit further documentation, the tribunal in Dundee was told.
Ms Cunningham said a complaint titled “Hate Incident” was submitted by Dr Upton on January 23 2024 “which makes no reference to patient safety”, adding the doctor was interviewed on May 9 but “did not refer to prior incidents in his statements”, but mentioned “a couple of incidents with Sandie earlier”.
She said requested documents were about “detriments from the second respondent by making an unfounded complaint against bullying” and alleged that Ms Peggie’s line manager began an investigation but the NHS “made a decision to tear it up and start again”, and that an “inappropriate email to all ED (emergency department) consultants had been produced only this week”, the tribunal heard.
Ms Cunningham said it was “inconceivable that aborting one process and starting again would not produce a considerable quantity of paperwork”, adding it was “extraordinarily negligent or incompetent”.
She said Ms Peggie’s legal team had been “anxious to see the covering emails for documents entitled Hate Incident and Formal Complaint.”
Ms Cunningham told the tribunal: “Each one of those relates to the complaint Beth Upton made against Ms Peggie, the manner in which those complaints were investigated and the decisions made, such as whether suspension was proportionate, whether it should be continued and how to conduct the investigation.
“To understand those, it is crucial to understand what the Fife health board thought had to be investigated, and when those concerns were raised by Dr Upton, specifically when the allegations relating to patient safety were raised.”
She said the Hate Incident document related to the changing room “dispute”, while Formal Complaint included allegations of “the resuscitation unit incident and what we’re going to call the ‘missing patient incident’, the patient who was triaged and left the hospital without being seen”, the tribunal heard.
Ms Cunningham said: “Stakes for both claimant and second respondent (Dr Upton) are extraordinarily high. The second respondent has made potentially career ending allegations against the claimant, of a nature which would raise, if true, clear fitness to practice questions.
“If those allegations are untrue then obviously the potential consequences for second respondent would be serious. For the sake of all parties we would say its necessary for all parties that this documentation is aired.”
She added: “The respondent knew full well they had started then aborted this investigation. They did their best to conceal that investigation and certainly did not admit to it and produce the documents.”
Ms Cunningham said there were “puzzling” issues about the investigation documents.
She added: “Beth Upton’s interview with an investigating manager doesn’t seem to have happened until May 9, after a cluster of interviews on April 26. There’s still outstanding documentation about setting up that meeting.”
Ms Russell denied that Ms Peggie’s line manager had been appointed to be an investigator.
The barrister for both the trust and Dr Upton said: “The first respondent’s position is she wasn’t an investigator and nor did she complete any sort of investigatory work. What she did do was receive Beth Upton’s grievance and a document from Louise Curran.”
A spokesperson for health board said: “NHS Fife considers it inappropriate to comment during the employment tribunal.
“It is important to recognise that at the heart of this case are two employees who should be treated with kindness and respect.
“As an organisation, NHS Fife remains committed to upholding its duty of care to all employees.”
The tribunal continues.
