NHS Fife’s equality and diversity department advised it was a trans 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 for 30 years, took the 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 after sharing a changing room with the trans doctor: indirect harassment, victimisation, and whistleblowing.
The nurse was suspended on January 3, of last year, after Dr Upton made an allegation of bullying and harassment, initially for four weeks, but 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 today, Thursday, February 13, 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 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 code may have been breached.
On January 3 she told Ms Peggie she was temporarily suspended, and described her as “shaking” and “tense”, recalling how the nurse 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 probe could progress, giving a deadline of January 24, however after Ms Peggie had been suspended for four weeks, the investigation had still 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.”
The tribunal continues.