NHS Fife harassed nurse in trans doctor row in four specific respects, all other aspects of claim refused

Sandie Peggie, in her claim against Fife Health Board Dr Beth Upton, argued that she had been directly discriminated against because of her sex and gender-critical beliefs, contrary to the Equality Act 2010, and subjected to sexual harassment and victimisation. Other bases of harassment argued for included the first respondent making reference to patient care allegations against her on 28 March 2024 and instructing her on 5 July 2024 not to discuss the case until a further message 17 days later clarified that this only applied to the investigation.

The case was heard by Employment Judge A Kemp and Tribunal members L Brown and C Russell. The claimant was represented by N Cunningham and C Elves, barristers, instructed by M Gribbon, solicitor. J Russell KC and A Watson, solicitor, represented both respondents.

No written policy

The claimant and second respondent were both employed within Victoria Hospital in Kirkcaldy, for which the first respondent was responsible. The claimant, who had been employed in the hospital since December 1994, typically worked night shifts and took her work uniform with her to change on site. The second respondent was employed as a junior clinical fellow in August 2023 and had been fully open about reassigning gender to female. Prior to August 2023, the second respondent had used female changing rooms and toilet facilities without issue or complaint.

On 26 August 2023, the claimant entered the female changing room and saw the second respondent. She then left and waited for the second respondent to leave before changing. She spoke to her line manager and explained that the incident had left her feeling uncomfortable but was later advised that there was no written policy and that a trans woman had a right to use the female changing room. After a second encounter in October 2023, matters came to a head on 24 December when the claimant told the second respondent that she did not feel it was appropriate for the second respondent to use the changing room. The claimant was placed on special leave on 30 December 2023 and subsequently was suspended until 14 April 2024.

It was argued by the claimant that the second respondent was male by sex in light of the Supreme Court’s decision in For Women Scotland v Scottish Ministers (2025) and the 24 December incident was a permissible manifestation of the claimant’s beliefs. She argued that the first respondent had been involved in a conspiracy to punish the claimant for expressing her beliefs which were contrary to the position of the first respondent on matters related to trans members of staff, and that that had been effected by an unjustified disciplinary process starting with the suspension and continuing to the end of that process.

For the respondents it was submitted that the claimant had not been discriminated against, harassed, or victimised as described. Founding on the first respondent’s Code of Practice, it was lawful to permit the second respondent use of the female changing room. The claimant had not been reasonable in her perception of harassment.

Balance test

In its decision, the Tribunal said of the effect of the FWS decision: “The Supreme Court’s decision has the conclusion that a trans woman is not a woman for the purposes of sex under section 11 [of the Equality Act]. For a question of which changing room to use that is not in our view determinative. The protected characteristic of gender reassignment is not to be wholly disregarded as it is of equal status to sex (as are the respective beliefs of the claimant and second respondent).”

It added: “It may be lawful to grant permission to a trans person to use the changing room that aligns with the sex and gender they identify as having, dependent on the circumstances. Whether or not it was in relation to the second respondent, and how that is to be determined, are separate points of case law both under the Act and in relation to the human rights provisions we have referred to above.”

On the first respondent’s conduct, the Tribunal noted: “The first respondent had not met the measure test that there was not a less intrusive measure than the grant of permission, for the period from when a decision should have been made after the claimant’s first complaint until a solution that involved rotas not crossing over was found. The permission granted for that period did not meet the balance test in relation to the rights and interests of the claimant and second respondent. Before and after that period, the test was met in each case.”

It went on to say: “In respect of the length of time for the disciplinary investigation we did consider that the conduct had the effect required by the Act, in particular it created a hostile environment, and her perception of that is in our view reasonable in all the circumstances for the period given above. The reference to patient care did also cause a hostile environment and the claimant’s perception of that was reasonable.”

Not responsible for permission

Considering the second respondent’s role in the case, the Tribunal said: “The second respondent is not responsible for the permission being in part contrary to the Act, a matter addressed in more detail below. The second respondent’s acts were wholly unrelated to the claimant doing any protected act, in our view. We do not consider that any reasonable employee would consider what the second respondent did during the Christmas Eve incident to be a detriment.”

In respect of the case against the second respondent, it concluded: “In the claim before us there was a case pursued against the second respondent as an individual, but the basis in law for that was not specifically addressed either in the pleadings or in submission. We considered that pleading and argument on this matter is normally required from the claimant, and there has been none put before us. No reason for that has been provided, and this is not one of the obvious cases where liability can be said not to require explanation. It does, and has not been given. It appeared to us that in light of that the claim against the second respondent must fail.”

Having made its determination on liability, the tribunal ordered a separate hearing to assess the remedy due to the claimant in respect of its failure to revoke the second respondent’s permission to use the female changing room until the claimant’s return to work in April 2024, along with three other matters.