The NHS Fife trans row employment tribunal faces further delays after a second dispute erupted over key documents.
Lawyers representing Kirkcaldy nurse Sandie Peggie say it will take time to pore over another 30 pages of files released by the health board, her former employer, following a judge’s order.
Last week NHS Fife was accused of being “negligent” for failing to disclose correspondence relating to an “aborted” probe into Ms Peggie.
The A&E nurse, who worked at Victoria Hospital, was suspended after a row with transgender doctor Beth Upton in a female changing room on Christmas Eve in 2023.
She claims she felt intimidated and embarrassed at being alone with Dr Upton, born male.
‘No smoking gun’
Dr Upton was cross-examined on Tuesday by Naomi Cunningham, representing Ms Peggie, over the confrontation.
The Dundee hearing descended into chaos in the morning due to interruptions from online observers, with remote viewing suspended for two hours.
But further disruption followed in the afternoon after the live stream was reinstated.
Ms Cunningham said she has “no reason to be confident” NHS Fife has shared all documents relevant to the case.
She warned there will be “stop-start progress” if it becomes clear more files are being concealed.
The lawyer then asked for the hearing to be adjourned for the day.
But Jane Russell, representing NHS Fife and Dr Upton, challenged this.
She claimed Ms Cunningham was searching for non-existent “smoking gun”.
Ms Russell told the judge: “It would seem disproportionate to adjourn a hearing, pursuing what seems to be the impossible.
“If what my learned friend is looking for is a smoking gun, she hasn’t found it.
“She’s not likely to, because it’s not there. The pursuit of that which doesn’t exist is not going to help her.”
Sandy Kemp, the judge, brought the hearing to a close for the day.
But he admitted there is “really no prospect” of all evidence to the tribunal being finished by the end of this week as planned, meaning the hearing may have to convene again at a later date.
Ms Peggie has finished giving evidence, while Ms Cunningham’s cross-examination of Dr Upton remains ongoing.
The tribunal is still to hear from NHS Fife staff.
Ms Cunningham told the judge she is “confident” her questions for Dr Upton, who identifies as female, will conclude on Wednesday.
On Tuesday morning, the lawyer accused the trans doctor of engaging in an “immersive role play” by wanting to use a women’s changing room.
She claimed Ms Peggie had “opted out” of this.
Dr Upton replied: “There is no role play for her to opt out of.”
‘Bigoted outburst’
The medic was asked about continuing to use the female changing room after the Christmas Eve confrontation.
Last week the tribunal heard that Ms Peggie compared her colleague being there to rapist Isla Bryson being placed in a women’s jail.
Dr Upton told the tribunal: “I had a think about it.
“I determined I wasn’t willing to let somebody’s bigoted outburst and unpleasantness towards me stop me being who I was.”
In one exchange with Ms Cunningham, Dr Upton said: “I don’t need your validation. I’d like your respect.”
The tribunal heard Dr Upton sent a message to line manager Dr Kate Searle in the early hours of Christmas Day saying: “I don’t feel safe using the changing rooms when she [Ms Peggie] is there.”
An email sent by Dr Upton to the British Medical Association (BMA) on Boxing Day read: “I feel utterly alone in this situation as my superiors have yet to respond.”
The medic used the female changing rooms two days later when Ms Peggie was present.
Ms Cunningham said: “On Christmas Eve you stood your ground and said you were entitled to be in the changing rooms.
“A few hours later you feel certain you don’t feel safe when she’s there but on December 28, decide to use changing room anyway.”
Dr Upton said: “In the early hours of Christmas morning I was freaking out and trying to think of ways I could keep myself safe from further hostility.
“I thought I would put my big girl pants on and be brave.
“Unfortunately I wasn’t as brave as I thought I was and went to the plaster room in my socks.”