A health board’s equality and diversity department advised that it was a transgender doctor’s “right” to use a female changing room, 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 in the female changing room.
Ms Peggie, known as the claimant, lodged a complaint of sexual harassment or harassment related to a protected belief under Section 26 of the Equality Act 2010 regarding three incidents when they shared a changing room: indirect harassment, victimisation, and whistleblowing.
She was suspended on January 3, 2024 after Dr Upton made an allegation of bullying and harassment, initially for four weeks, however this was later extended for another four weeks due to delays starting the investigation, the tribunal heard.
Ms Peggie’s line manager, Esther Davidson, gave evidence on Thursday to the tribunal in Dundee.
She said she was initially appointed to an investigation into what happened but was removed from it around the end of February, about two months later, when it was recognised that she would be a witness. It was then restarted.
She said Ms Peggie raised concerns with her in late August 2023 about sharing a female changing room with Dr Upton but NHS Fife’s equality and diversity department told her it was “Beth’s right as she identified as a woman”, the tribunal heard.
Ms Davidson said she felt “empathetic” to Ms Peggie’s concerns and acted within hours, and added: “To be honest I hadn’t actually thought about that at all. Beth was new to department and I did know she identified as a woman. But I hadn’t actually thought about changing facilities at all.”
She said on Boxing Day she read a summary email from a medic who Dr Upton confided in, sent in the early hours of Christmas Day, which did not name the other member of staff, the tribunal heard.
Ms Davidson said she had no idea at that point who the “perpetrator” was, and felt it was “totally unacceptable people are upset about work”.
She said it was “clearly a distressing situation for both Sandie and Beth”, and she put Ms Peggie on “special leave” – meaning she was paid to stay at home – to avoid her “getting into a situation that could cause her problems” as HR was unavailable due to the festive season, and amid concerns the Nursing and Midwifery Council (NMC) code may have been breached.
On January 3 she told Ms Peggie she was temporarily suspended, and described the veteran nurse as “shaking” and “tense”, recalling she declined to leave by a side exit, saying “I’ve got nothing to hide”, the tribunal heard.
Ms Davidson said: “We only had heard Beth’s account of what had happened. There was to be a formal investigation. To be fair in my 30 years I have never had to be involved in a formal investigation or lead a formal investigation.”
She said she contacted Dr Upton asking for a written submission so the investigation could progress, giving a deadline of January 24, however after Ms Peggie had been suspended for four weeks, the probe had not started, and scheduled meetings were cancelled when a decision was made to restart it, the tribunal heard.
Ms Davidson said a decision was made to extend suspension to enable managers to find a way to avoid Ms Peggie and Dr Upton working together.
She said of the initial suspension: “I reached that decision, looked at what the issues were, was there anything I could do to prevent a recurrence and for patient safety. I made the decision to suspend Sandie on a temp basis with the hope that investigation could happen quite quickly.
“The allegations that were made could have been perceived to be harassment and bullying and to interfere with patient care and patient safety. I didn’t want Sandie to be put in a situation with another incident.”
Ms Davidson said she “needed to hear both versions”, and added: “Beth was saying if she moved into clinical area Sandie would move out. It was just an allegation. That’s why it says alleged.”
She said: “I was the designated lead on investigation. I wanted Beth to put into writing what her complaint allegation was.
“The decision was later changed because I was going to become part of that investigation. Probably near the end of February.”
Giving evidence later about the incident on Christmas Eve 2023, Ms Davidson said a senior charge nurse working that day “had no knowledge of this at all and saw no upset”.
Cross-examining, Ms Peggie’s barrister Naomi Cunningham put to Ms Davidson Dr Upton’s previous evidence about seeking support on Christmas Eve by going through the Emergency Department to an office.
Ms Davidson described it as a “straight route”, and said: “The changing rooms are on exterior corridor. You wouldn’t go through the department, you would go through the observation ward.”
She added: “I’d expect the senior charge nurse to be made aware there had been an incident but she didn’t know.”
Ms Davidson said she became aware of patient safety allegations on December 31, regarding a claim Ms Peggie left a resuscitation unit when Dr Upton entered, and told the investigator she “would have been dealing with it” if she had known, the tribunal heard.
Giving evidence, she said: “It made it more urgent.”
Ms Cunningham said: “To assume the investigation had been done promptly and had found the reason Sandie left was because she hated Beth because Beth is trans. If you did the investigation and that was the conclusion, that would be the end of Sandie’s career wouldn’t it – it would go to disciplinary and fitness to practice?”
Ms Davidson said: “I think it would be NMC.”
Ms Cunningham said: “At the end of those processes, Sandie would be looking at dismissal for gross misconduct at the end of a 30-year career and getting struck off.”
Ms Davidson said: “I’m not the NMC so that wouldn’t be my judgment but that is a possibility.”
A spokesperson for NHS Fife 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.
