NHS Fife’s decision to fight nurse Sandie Peggie at an employment tribunal over her suspension has left health chiefs facing tough questions.
The Kirkcaldy A&E worker was disciplined after she told transgender doctor Beth Upton, who was born male and identifies as female, she was uncomfortable sharing a changing room.
Ms Peggie claims she was subjected to unlawful harassment and says NHS Fife breached the Equality Act.
She is suing both her employer and Dr Upton.
NHS Fife could have attempted to settle the case, which has made global headlines and seen several of its staff members cross-examined about their roles in the saga.
Instead, the health board opted to defend its position at an employment tribunal in Dundee after failing to have it heard in private.
And the public proceedings, described as “gruelling” by Ms Peggie, have turned the spotlight on the local authority’s handling of the Victoria Hospital row.
Mid Scotland and Fife Tory MSP Murdo Fraser has criticised NHS Fife’s decision to defend the legal action.
Did NHS Fife offer a settlement?
It is understood NHS Fife has made no attempts to settle with Ms Peggie at any stage, perhaps underlining the confidence the organisation has in its position.
Settling before the tribunal began would have stopped the health board having to fight the explosive case in public.
It may have also have limited the reputational risk to NHS Fife.
There is nothing to suggest Ms Peggie would have been, or remains, willing to reach an agreement.
Both scenarios come at a cost to the taxpayer.
Out-of-court settlements are often accompanied by non-disclosure agreements (NDAs), meaning neither side will make public statements or admit liability.
The tribunal, due to return in July, remains active but there is nothing stopping the two parties reaching an agreement should they wish to.
Who decided against a settlement?
Mr Fraser has demanded answers over who made the call to defend the legal action.
Along with his colleagues, he has raised concerns about the case in Holyrood.
He said: “There are lots of questions about who in NHS Fife took the decision to defend the action in the way they did.
“Were these decisions signed off by the chief executive, and were they discussed by the board?”
NHS Fife’s chief executive is Carol Potter, who earns between £140-145k a year.
She was thrust into the spotlight when the Equality and Human Rights Commission (EHRC) made public a letter to her “reminding NHS Fife of their obligation to protect individuals from discrimination and harassment on the basis of protected characteristics, including sex, religion or belief and gender reassignment.”
The EHRC asked for sight of key policies and impact assessments on the provision of staff changing rooms.
This week Ms Peggie’s lawyer told The Herald the latter had not been carried out before Dr Upton was given the green light by manager Dr Kate Searle to use the female changing rooms at the Kirkcaldy hospital.
On Tuesday, NHS Fife declined to answer a series of questions submitted by The Courier relating to the case – including queries about decision making, impact assessments and current changing room guidelines.
It insisted support was being offered “to those directly and indirectly impacted by the ongoing employment tribunal”.
The health board said previously: “NHS Fife considers it inappropriate to comment during the employment tribunal.
“It is important to recognise that at the heart of this case are two employees, who should be treated with kindness and respect.
“As an organisation, NHS Fife remains committed to upholding its duty of care to all employees.”
‘Tens of thousands on legal costs’
North East Tory MSP Tess White claims NHS Fife may have failed to meet legal obligations to carry out proper checks regarding staff changing facilities.
SNP social justice chief Shirley Anne-Somerville says the Scottish Government is “considering” the EHRC’s letter.
When the tribunal resumes in July, several NHS Fife staff members are expected to give evidence, including Dr Searle and equality officer Isla Bumba.
Interim clinical nurse manager Esther Davidson has already been cross-examined at the tribunal about her handling of the situation while emails revealed an HR worker described the decision to suspend Ms Peggie as “ludicrous”.
Maya Forstater, who runs gender critical charity Sex Matters, claims this will be a landmark case across Britain.
Meanwhile, Mr Fraser remains concerned about the impact of the saga locally.
He added: “We have thousands of individuals in Fife who are stuck on waiting lists for treatment.
“Here we’ve got Fife blowing what must be tens of thousands of pounds on legal costs.”
