One of the most high-profile employment tribunal cases of this century finished hearing evidence this week. The case, brought by nurse Sandie Peggie against NHS Fife and Dr Beth Upton, brings into sharp focus the stakes of the ongoing debate about the relationship between sex and gender identity within our law.
The facts are complex and contested but start with the arrival of Beth Upton, a trans woman who is legally and biologically male, to work at the Emergency Department where Mrs Peggie had been employed for the past thirty years. By this point, Peggie had an unblemished record. Conversely, evidence presented this week indicated that Upton had caused trouble in a previous role by complaining about failures to use preferred pronouns by elderly patients, including those with dementia.
Peggie’s discomfort was met with the repeated assertion that Upton had a right to use the female-only changing room
NHS Fife’s EDI lead Isla Bumba had advised that, because Upton identified as female, there was a legal right to use the female-only changing facilities. Sandie Peggie along with most of the women using the female changing room, was not informed of this. Peggie, who had been the victim of sexual assault as a teenager, first encountered Upton in the female changing room when she walked in to see Upton changing. The second encounter involved the reverse, with Upton entering the female-only changing room when Peggie was standing in the changing room in her trousers and bra. On both occasions, Peggie left immediately and later raised her discomfort with her managers.
Peggie’s discomfort was met with the repeated assertion that Upton had a right to use the female-only changing room. This is not legally accurate. It has been clear since at least 2003 that self-identification is not a proper basis for access to single-sex facilities or services. There was some uncertainty about whether possession of a Gender Recognition Certificate made a difference for this, but that has been clarified by the Supreme Court this year in the case of For Women Scotland v The Scottish Ministers. Trans women are biologically and legally male for the purposes of anti-discrimination law. Upton therefore has no right to use lawfully provided female-only services or facilities.
Things came to a head on Christmas Eve 2023 when Peggie recounts having experienced a sudden and heavy menstrual flood. She needed to change her underwear and was worried that she had bled through her scrubs. She went to the female changing room where she encountered Upton. Here their versions of events diverge, but a disagreement ensued where Sandie Peggie said that, as a man, Upton should not be in the female changing room and made some reference to “the situation in the prisons” by which Peggie claims to have been referring to news reports she recalled about a trans woman being housed in the female prison estate. NHS Fife’s legal team argue that this was comparing Upton to the convicted male rapist Isla Bryson.
Upton quickly made a complaint against Peggie for bullying and harassment related to a protected characteristic and she was suspended pending investigation. Shortly before her suspension and before any investigation, Kate Searle, a senior consultant in the department sent an email to all ED consultants condemning Sandie Peggie and encouraging them to express solidarity and support for Upton. In December 2024, almost a year later, Peggie was informed that she would be subject to a misconduct hearing which in July 2025 dismissed all allegations of misconduct against her.
Meanwhile, in response to her suspension, Sandie Peggie had launched Employment Tribunal proceedings alleging that she had been unlawfully harassed by Upton’s use of the female changing room and subjected to further detriments in the form of the suspension and disciplinary process arising from her rejection of this harassment.
Peggie’s argument is that Upton had no right to be in the female-only changing room and that NHS Fife’s policy of allowing this resulted in her being subject to sexual harassment and harassment related to sex. These are subtly different claims. The first is that Upton’s presence in the female changing room, particularly in instances where Upton was in a state of undress or where Peggie was in a state of undress was sexual in nature and caused an unwanted harassing effect. The second is that Upton’s presence in the female changing room was conduct related to sex and which caused an unwanted harassing effect. A harassing effect is one which violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. Peggie’s legal team have also argued that Upton knew that she was uncomfortable, documented instances where she was uncomfortable, and continued anyway, reframing her discomfort as unusual prejudice or bigotry.
The case was scheduled to be heard in February 2025 and would have been completed then, with judgment delivered by now, had it not been for the extraordinary failure of NHS Fife and Upton to comply with a judicial order requiring the production of documents in advance of the February hearing. During this hearing, Upton admitted to never having seen the Judicial Order in question, a significant oversight on the part of the respondents’ legal team .
It was therefore only during the February hearing that it became clear to the Tribunal that Sandie Peggie had been subjected to two investigations. Initially, Ester Davidson, Peggie’s manager, had been the investigator, but she was removed from the role following a solicitor’s letter from Peggie. Davidson couldn’t be the investigator because was a witness; Peggie had complained to her several times about Upton using the female changing room. In open court Jane Russell KC was emphatic that Davidson was not an investigator and was no more than a “post-box” collecting documents. Davidson, unaware of this, casually admitted a few days later that she was indeed the initial investigator.
A change in investigator might not on its own be of much significance. However, in conjunction with further evidence produced following the February hearing, a different picture begins to emerge. In the second hearing, completed this week, Naomi Cunningham, counsel for Sandie Peggie, produced an email purporting to create a working group of senior members of the Emergency Department to coordinate the investigation. This group included Ester Davidson, now unequivocally confirmed to have been the initial investigator, and several witnesses who were to be interviewed during the investigation. Maggie Currer, the senior consultant who set up this group, warned members not to discuss the investigation outside of this group “to avoid foot-in-mouth syndrome”. No replies to this email were produced by NHS Fife and Cunningham has suggested that there may be further failures to comply with the judicial order from January.
Perhaps the most explosive development in this case came when expert evidence of Upton’s phone notes was presented. Upton has admitted to keeping a log of instances where Peggie was uncomfortable in the changing room and claimed to have kept contemporaneous notes of instances where she endangered patient safety by abandoning her duties when Upton was around. This latter claim has been significantly undermined by NHS Fife clearing Peggie of these allegations and by expert evidence showing that Upton’s phone notes were not contemporaneous as claimed but had been edited to insert the patient safety allegations at a later date.
Jane Russell KC, counsel for both NHS Fife and Upton stated in court that, on her interpretation, this report meant that Upton must have been lying about the phone notes being fully contemporaneous. She then suggested that the expert witness had been paid to produce a report showing that Upton had lied. This was immediately challenged by Charlotte Elves, counsel for Sandie Peggie, as an unprofessional and unfounded accusation that three lawyers and an expert witness had engaged in such unprofessional conduct. Russell withdrew her comment and apologised.
Sandie Peggie’s legal team have argued that Upton’s presence in the female changing room amounts to unlawful harassment and that Sandie Peggie, in rejecting this harassment, was subject to a protracted and thoroughly corrupt investigation which only exonerated her once the investigation moved out of the Emergency Department.
In response, the argument from Jane Russell KC appears to be that her first client’s investigation clearing Peggie of all allegations of misconduct was wrongly decided and that Sandie Peggie is bigoted. The legal significance of this argument can only be ascertained once it is coupled with the additional argument that only bigoted women would object to being required to undress in front of biological men or to having biological men undress in front of them. Combined in that way, Russell can argue that Peggie’s discomfort was not reasonable and that she therefore cannot succeed in her claim of harassment.
This is a bold claim following For Women Scotland v The Scottish Ministers, where the Supreme Court upheld a biological definition of sex in the Equality Act, partially because of the importance of biological sex for the operation of single-sex services, accommodation, and sanitary conveniences. During the hearing this month, Russell argued that the Supreme Court decision was “an abstract case” that had no relevance to this case. That claim, to put it mildly, is nonsense.
