Nurse's behaviour 'doesn't deserve' Equality Act protection

Sandie Peggie was suspended by NHS Fife following a row with Dr Beth Upton

The "aggressive and confrontational" way a nurse spoke to a trans doctor in a dispute over access to changing rooms was behaviour not deserving of Equality Act protection, an employment tribunal has heard.

Jane Russell KC said Sandie Peggie's decision to confront Dr Beth Upton in a changing room on Christmas Eve 2023 was made out of "anger, not fear", and that the nurse had extremist views.

The comments came on the second day of closing submissions at the tribunal, which began in February.

Ms Peggie was suspended from her job at a Kirkcaldy hospital by NHS Fife following the Christmas Eve encounter. She then took the health board and Dr Upton - a transgender woman - to a tribunal.

The nurse claimed sharing changing rooms with Dr Upton at the Victoria Hospital amounted to unlawful harassment under the Equality Act 2010.

However Ms Russell, in her closing submission, said some of the comments made by Ms Peggie "went far beyond being unreasonable or inaccurate" and therefore should not be given protection under the Equality Act.

The KC stated remarks referencing the trans rapist Isla Bryson - the content of which has been disputed by both parties - were particularly offensive.

She said: "The claimants behaviour in confronting the young doctor in a professional setting in such a way and so unpleasantly is behaviour that ought not to be served protection of the Equality Act.

"We need to recognise that people come in all shapes and sizes and meet those differences with kindness and understanding, rather than as the claimant unfortunately did with judgement and hostility."

Timeline of the Sandie Peggie tribunal

Ms Russell argued that Ms Peggie's view on minorities and trans people had "bled over" into her working life.

This was in reference to earlier discussion during the tribunal of racist jokes made by the nurse to friends in a WhatsApp chat, and remarks calling Dr Upton "weird" and "it".

Ms Russell said the comments showed "intolerable views" towards minorities, and a "strong dislike, mockery and disgust" towards Dr Upton.

Ms Peggie's legal team had dismissed the accusations of racism on Monday, saying the comments were an isolated example of bad taste jokes from several years worth of messages.

Naomi Cunningham KC also stated that the nurse had been subject to a "full-blown witch-hunt" and a "shockingly spiteful character assassination" as a result of her encounter with Dr Upton.

Ms Cunningham argued NHS Fife was in "the grip of delusion" regarding gender self-identification and had carried out "morally repugnant" behaviour regarding the nurse.

Both Dr Upton and Sandie Peggie worked at the Victoria Hospital in Kirkcaldy

In her submission on Tuesday, Ms Russell praised Dr Upton, citing witnesses throughout the tribunal referring to the medic as an "extremely kind, compassionate person".

She also said the doctor showed "quiet dignity" during cross examination earlier in the tribunal, where Dr Upton "was compared to a torturer, repeatedly and deliberately misgendered and her lived experience as trans person dismissed as mere cosplay."

Call for amendment

Both legal teams also clashed over whether to allow an amendment application from Ms Russell.

This would allow NHS Fife and Dr Upton's legal team to use as a defence that Ms Peggie is entitled to her views but not in the changing room or in the manner in which she expressed them.

Ms Cunningham said were this to be allowed the tribunal would need to meet again in October and potentially call witnesses - including Ms Peggie - again.

Judge Sandy Kemp ruled that the panel would need to research the matter but could not provide a timeframe for a final decision.

He later said a decision on the overall case would not be made until November at the earliest.