An NHS Fife boss suggested the A&E nurse at the centre of an employment tribunal could change in a toilet instead of sharing a changing room with a transgender doctor.
Esther Davidson, interim clinical nurse manager, mooted the possible solution after Sandie Peggie expressed concern about Dr Beth Upton, born male, using the female facilities.
Ms Peggie – whose lawyer revealed she was attacked by a male GP at the age of 17 – raised her discomfort about the situation in August 2023 with Ms Davidson.
The employment tribunal heard the health board manager was ill-prepared for the complaint.
Ms Davidson said: “She (Sandie) advised me that Beth had been using the female changing rooms.
“And to be honest, I hadn’t actually thought about that at all.
“Beth was new to our department and I did know she identified as a woman because she had come down from her previous role in psychiatry so I saw her on a fairly frequent basis.
“But I hadn’t really thought about the changing facilities at all.”
Ms Peggie, who worked at Kirkcaldy’s Victoria Hospital, is suing NHS Fife and Dr Upton after she was suspended following a row between the pair on Christmas Eve that same year.
‘She was clearly upset by this’
Ms Davidson told the health board’s barrister Jane Russell KC she sought advice from the equality and human rights lead officer, Isla Bumba, and deputy clinical lead Dr Maggie Currer.
She said: “Isla advised me that Beth had a right to use the female changing room as she was a transgender woman and identified as a woman.”
Dr Currer had received the same advice from Ms Bumba.
Ms Davidson then told Ms Peggie there was “nothing that would support her being able to exclude Beth from the changing rooms”.
She said: “She [Sandie] was upset. She was angered by that.
“And then I made some suggestions about alternative changing area within that.
“She told me she wouldn’t change in a toilet, because I had mentioned the cubicles.
“It was so long ago, it’s difficult to remember everything that was said but she was clearly upset by this.”
Communication breakdown at NHS Fife?
Concerns were also raised around the lack of official communication from NHS Fife regarding Dr Upton and the changing facilities.
Ms Davidson said: “Apart from the conversation I had with Isla and the policies I have here, there is nothing I could find directly regarding transgender females.”
The nurse manager also admitted she had not shared Dr Upton’s gender identity to her own staff.
She said: “Beth had been working within our department and we did know she identified as a female and I didn’t really think about it.
“Therefore I didn’t actually communicate to any of the staff about Beth’s sexual identification because I didn’t think there was any need.”
The lack of communication was raised in cross-examination by Ms Peggie’s barrister, Naomi Cunningham KC.
She said: “If you had been given prior warning that issue was likely to arise, it might have given you some sort of chance to manage it advance, rather than just waiting for a problem to arise.
“Is that fair?”
Ms Davidson said it would have allowed her to give Ms Peggie an answer at the time of her initial complaint rather than having to wait.
No progress made a month into suspension
After an incident on December 24, 2023, Ms Peggie was placed on special leave until January 3.
Ms Davidson said that due to the holidays there wasn’t anyone from HR to ask for advice.
It was also revealed that four weeks after Ms Peggie was suspended from NHS Fife, the formal investigation into the incidents hadn’t properly began.
“Nothing had changed,” said Ms Davidson.
Ms Peggie’s suspension was subsequently extended for another four weeks.
Ms Cunningham KC then brought up that Ms Davidson admitted to being sympathetic to Ms Peggie’s original situation.
She asked: “If she had been making a bigoted complaint, if she’d been saying for instance that she didn’t want to share a changing room with a black nurse, you wouldn’t be sympathetic would you?”
Ms Davidson responded: “No, I don’t think that would be appropriate to say.”
Emails condemning nurse Peggie
Before the hearing closed for the day, Ms Cunningham KC brought up emails from Dr Kate Searle that were sent in December.
Dr Searle, Dr Upton’s line manager, wrote: “I’ve had a long chat with Beth and assured her that she has our full support and we condemn Sandie’s actions.”
This email was sent before Ms Peggie, who described giving evidence at the tribunal as “gruelling”, was asked her version of events.
Ms Davidson agreed the nurse’s side of the story was crucial before deciding if any of her actions were unacceptable.
The tribunal continues on Friday.
