Tribunal slams NHS Fife lawyers for ‘negligence’ in gender-critical case

The case, already running for two months at a cost of at least £220,500, was thrown into further wrangling earlier this month when the board’s lawyer sought to amend pleadings at the closing stages of the hearing.

Barrister Jane Russell KC, representing NHS Fife and Dr Beth Upton, contacted the tribunal to argue that she should be allowed to alter pleadings to introduce a new line of defence based on “objectionable manifestation” of belief.

This approach draws on a previous ruling which held that while people are free to hold protected beliefs, employers can act if those beliefs are expressed in ways that are inappropriate, offensive or disproportionate in the workplace.

Ms Peggie, an A&E nurse at Victoria Hospital in Kirkcaldy, is suing the board and Dr Upton after being suspended over an incident that took place in a female changing room on Christmas Eve 2023.

She told the tribunal she went into the room while experiencing a heavy period that had soaked through her scrubs. Dr Upton, a transgender woman who had joined the department as a junior doctor in August 2023, was already inside.

What was said between them is disputed.

Ms Peggie said to the tribunal that she told Dr Upton he was a man and should not be in the female changing room. She explained she was “trying to give [Dr Upton] an example of how I and other women feel”.

According to Dr Upton’s testimony, Ms Peggie said: “This was the women’s changing room and she told me that it was inappropriate for me to be in there.”

Dr Upton told the tribunal the exchange left them feeling “really, really upset”. She said: “She repeated that I cannot be in this room and that I am not a woman, that it is not safe. She asked me what my chromosomes were and said it was like the situation in prisons.”

She thought this was a comparison to transgender rapist Isla Bryson.

Ms Russell argued the amendment was needed to reflect the “true nature” of the case, saying Ms Peggie’s conduct went “too far” when she misgendered Dr Upton, questioned her chromosomes and made reference to the Bryson case.

On September 2, during closing stages of the hearing, Ms Peggie’s barrister Naomi Cunningham said allowing the change could unfairly prejudice her client, force witnesses to be recalled, and delay the case into 2026.

Employment Judge Sandy Kemp said the issue could not be decided immediately.

The tribunal later issued a written note refusing the amendment to pleadings, finding it unnecessary because the objectionable manifestation argument had already been raised implicitly in the board’s existing documents.

However, the panel granted a narrower amendment to the list of issues.

The panel said: “No explanation as to why an application to amend it so late in the day to add reference to the issues which are loosely described as being of causation was given to us.

“That is surprising, and does not reflect at all well on those acting for the respondents. They argue in effect that they have not abandoned the causation or separability issues, but the Tribunal has the ability to hold that they did so simply from the terms of the List of Issues they stated specifically had been agreed.

“It seems to us given the terms of the respondents’ pleading and initial or opening skeleton argument that had been ordered and provided, and the other factors we refer to in this decision, that the omission must have been by what we can only describe as negligence.”