Sandie Peggie was back in the witness box today for the first time since her epic tribunal against NHS Fife. Peggie is claiming discrimination against her for her gender critical beliefs, but this time the fight is against her union, the Royal College of Nursing.
Both cases originated from events which began in August 2023 when a trans-identifying junior doctor called Beth Upton was given permission by NHS Fife to use the female changing rooms at Victoria Hospital’s A&E department in Kirkcaldy, Fife, where Sandie Peggie worked as a senior (Grade 5) nurse. Peggie encountered Upton on three occasions, complained on the first two and had a confrontation with him on the third, just before Christmas. Upton complained about Peggie who was told, before she returned for her scheduled shift on 30 December, that she was being put on “special leave”. Around 30 Dec, Peggie called her union for advice. This set in motion a chain of events which led to us all sitting in court today.
Peggie claims she was not properly supported by the RCN, wasn’t advised that she might have a legal claim against her employer and that their refusal to back a secondary claim against NHS Fife were acts of discrimination.
The RCN’s case, which we heard in court for the first time today, is that they did write a letter advising Peggie she might have a legal claim (without ensuring it reached her), they were supportive and that they were perfectly within in their rights to refuse to financially and legally support her secondary claim against NHS Fife, rather than being motivated by a dislike of sex realist nurses.
Chit Chat
Peggie was first taken through her evidence in chief by her barrister Naomi Cunningham. Cunningham told the court that thanks to the co-operative attitude taken by the RCN counsel, David Hay KC, the evidence was not going to take as long to get through as she had expected. Nonetheless, Cunningham went back to the beginning – asking Peggie when Upton joined Victoria Hospital’s A&E department and whether anyone at the hospital asked the nurses if they minded a man using their changing rooms.
Peggie told Cunningham there was a lot of “chit-chat” among the nurses with a few who were “uncomfortable with him using the area”. Peggie also confirmed “there wasn’t any” consultation of the nurses by NHS Fife before the decision let Upton use the female changing rooms was made.
Peggie’s first crucial phone conversation with her union rep, Stuart Fraser, on either the 5 or 8 January (no one is sure) came in and out of focus throughout the day’s hearing. By this time Peggie had been suspended pending an investigation into what NHS Fife alleged was her “unwanted behaviour” towards Dr Upton. Fraser, we were told by David Hay, remembers the conversation as lasting 40 minutes. Peggie today said it was “possibly about 10 minutes long”. Peggie today again described Fraser during the call as “non committal” and told the nurse to treat her suspension as an “extended holiday”.
Today we saw, for the first time, the notes Fraser made of the conversation. They are, in full:
“called to member to discuss situation, member described that new doctor has started and they are a trans female and this has made members of staff uncomfortable as they are using the female changing area, member had discussed her discomfort with this, with her Line manager however nothing was done, member was in a level of discomfort due to bleeding and the DR was in the changing room, the member advised the DR that she did not think that she should be in there and said something along the lines of this is the same as when they put a man in a female prison, discussed with the member of the potential that this could be seen as discriminatory and is most likely what has caused the suspension. Discussed with member process of investigation and potential outcomes, et cetera advised will open case.”
It seems that the RCN did open a case as we have evidence they composed and probably sent a letter to Peggie via email advising her of just that. The problem is Peggie never received it. This is either because the letter was emailed to the wrong address (most likely), was not emailed at all (possible) or did not exist at the time it is suggested it was created (unthinkable). Either way, the letter itself clearly states that the RCN will support Peggie, it will indemnify her against any costs incurred at this stage and it will raise, or help her raise a legal case against her employer. It is a fairly standard letter and comes with the usual caveats, such as the warning that:
“if it becomes clear to the local RCN office that your claim has no reasonable prospect of success or you have been made an offer, we feel you should accept, but you wish to continue your claim, our agreement to indemnify you in respect of the above costs may be withdrawn. We may also withdraw our agreement if we feel you are making unreasonable demands on RCN services. These decisions rest with the local RCN office. If we believe that your case requires a claim to an employment tribunal, we will make a referral for you to RCN legal services to assess whether your case has reasonable prospects of success and meets our minimum value threshold.“
Had Peggie received this letter (assuming the RCN sent it) her case, and indeed career, might be on a very different trajectory. The mystery is why no one, including her rep, Stuart Fraser, checked she had received it and chased a response to the email.
Peggie’s case is that because of Fraser’s failure to suggest legal advice and therefore the RCN’s failure to pursue her case with her, she felt “unsupported” and went elsewhere. Elsewhere firstly being to her husband’s cousin, a lawyer, who told her it sounded like she had a potential legal claim, and then via an MP, Neale Hanvey, to the human rights charity Sex Matters, who also told her she had a potential legal claim.
Enter Hanvey
Neale Hanvey gave evidence after Sandie Peggie today. He first met Peggie and her mum Sheila Hall towards the end of January 2024 and describes seeing them both in some “emotional distress”. At that stage he took the view (caveated by saying that he had of course only heard one side of the story) that it was “reasonably clear to me she wasn’t getting the support I would have expected or hoped” from the RCN. He thought the union was “not responding in the right way to support a member who was experiencing a complex difficulty in the workplace” and “it didn’t seem to me that the issues were being taken seriously” especially around Peggie’s suspension.
Hanvey is well connected in gender critical circles and put Peggie in touch with the For Women Scotland team and Sex Matters before the end of January 2024. During Peggie’s cross-examination David Hay KC (who represents the RCN) was interested in a email sent by Margaret Gribbon who became, and still is, Sandie Peggie’s solicitor. On 5 February 2024 Gribbon wrote to the RCN, telling them she was under instruction in a case against NHS Fife, involving Peggie, which was funded by Sex Matters. Gribbon writes that the case is of “significant strategic importance”. Hay asked if the strategy under discussion here was Sex Matters’ rather than Sandie Peggie’s. Peggie agreed that was the case.
Much of the rest of Hay’s remaining cross-examination was taken up exploring two strands. They were:
– Peggie’s legal team’s role in identifying and strategising over a potential secondary case the nurse might have against NHS Fife (this arose when it transpired her employer had, very late in the day, added the charge of “misgendering” Dr Upton to her disciplinary rap sheet).
– the amount of support and help Gillian Tait, the RCN’s senior legal officer, gave Peggie whilst trying (and often failing) to get assurances out of NHS Fife over the course of 2025 before Peggie could contemplate returning to work.
The former issue was important because it might be legitimate for a union to refuse to financially back or pursue a case against an employer on behalf of a member if another legal firm has previously been engaged on the same case. Peggie and her legal team say they wanted the RCN to pick up her secondary “misgendering” claim against NHS Fife for mishandling her disciplinary process and that this was completely separate from her initial claim for being wrongfully suspended and disciplined in the first place.
With regards to Gillian Tait, David Hay picked up on a couple of exchanges Peggie had with Naomi Cunningham during her evidence in chief. Peggie had said that Tait had only checked in with her a couple of times and hadn’t really supported her “at all”.
Hay went through the nature of Tait’s contact with Peggie in some detail – pointing out she had emailed her on eleven separate occasions to suggest a meeting in 2025, all of which Peggie had declined. Furthermore, she had taken Peggie’s concerns to NHS Fife whilst providing feedback on the responses she was getting.
Hay asked Peggie to look a letter she had written to Tait in August last year in which she asked Tait to go to NHS Fife asking it to make a clear statement that:
1) it understands and accepts that its staff have the right to discuss matters of common concern and organise to address them and that this includes the use of female only spaces by male staff and that there will be no disciplinary consequences for anyone who does so.
2) it understands and accepts that sex realist, or gender critical views are protected under the Equality Act 2010 and that it must treat discrimination on this ground in the same way it would treat discrimination against any other protected characteristic.
3) it acknowledges in the light of the Supreme Court’s judgment in For Women Scotland where it purports to provide single sex facilities for women, it is not entitled to permit those facilities to be used by men, and that men for these purposes includes men who identify as women, irrespective of whether or not they hold the GRC.
At the end of the letter Peggie asked that “the union send a copy of this letter to me and all union members who are employed by the Board [Fife Health Board – NHS Fife] so that we know that you are now taking steps to defend our rights.”
Hay took the court to a letter in which all three demands made by Peggie were set out in a letter by Tait to NHS Fife. The only thing Tait didn’t do was, as requested by Peggie, send a copy of that letter to all the RCN members employed by NHS Fife.
Hay then took Peggie to emails from Tait in which Tait had shown her correspondence from NHS Fife which singularly failed to answer a lot of Peggie’s questions. Tait call NHS Fife’s answers “unhelpful” and “entirely unsatisfactory” – evidence Hay suggested that Tait was doing what Peggie asked her to do whilst providing feedback on the responses they were getting from NHS Fife. Hay noted that Peggie did not complain to Tait about the letters she was writing, nor her failure to circulate the “three questions” letter to all RCN members employed by NHS Fife. Peggie agreed she did not.
Hay said he appreciated that Peggie was not a lawyer, but wanted to know if the entirety of her specific complaint against Gillian Tate simply that she had failed to circulate a letter. “Is that really what it comes to?” he asked.
“Yes”, said Peggie.
Day 2 of the tribunal starts at 10am tomorrow.
Scottish Employment Tribunal Law is Wild
In case you’re interested, today was something of a ride in terms of getting to grips with the substance of Sandie Peggie’s case against the Royal College of Nursing and the RCN’s defence to that claim. In the Scottish tribunal system there are no witness statements submitted to court. The statement of claim, skeleton arguments (although they’re not called that) and every piece of evidence referred to in court can only be viewed by journalists and observers in a room under supervision by one person at a time. This large, several-hundred page, lever-arch file of evidence is known as The Bundle.
You are not allowed to photograph any part of The Bundle nor remove it from its designated room and you can only view it whilst the courthouse is open. Given most of the time the courthouse is open the tribunal is sitting, unless you can be in two places at once, this job starts to get difficult.
There was a potential route through this obvious sub-optimal situation. Paragraph 57 of the Presidential Guidance On Open Justice In Employment Tribunal Proceedings In Scotland states:
“The Tribunal will not send electronic copies of documents to non-parties for inspection. However, it may agree to send the document to a different hearing venue in Scotland to be inspected there either during or after the hearing. This would not prevent a party, with the consent of all other parties and the Tribunal, providing copies of documents electronically to an observer.” [my emphasis]
The final sentence in that paragraph makes it perfectly clear that if the Tribunal and the parties consent to handing over copies of documents mentioned in court, or indeed the whole Bundle, then that can be done.
I made an application to the tribunal judge asking either that the parties release documents as the are introduced, referred to or relied on in court or they just hand over the whole redacted Bundle and trust us, as professional journalists to refer to and quote from the relevant documents as appropriate.
I was told by the judge that when she put this to the parties, one refused. When I asked in open court at the beginning of the proceedings this morning if we could find out why one party had refused to allow the release of electronic versions of the documents and perhaps test their reasoning against some open justice principles, the judge refused.
I was later told it was RCN who had refused to allow the document release. I have emailed their press office to find out why.
Thanks to everyone who has contributed to help fund my reporting of this court case. I will live tweet each of the seven days live and publish reports after each day’s proceedings. Subscribers will get a special gossipy subscriber-only newsletter after each day’s hearing (once I’ve got a report up on the website).
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