Sandie Peggie v Fife Health Board: what the judgment says

The decision of the Employment Tribunal in Scotland has been widely reported – but with competing claims made about what was decided. 

On Monday, the Employment Tribunal in Scotland gave its unanimous decision on the case of Sandie Peggie v Fife Health Board. The result was widely reported. 

‘Victory for nurse who objected to changing near trans doctor,’ said the front page of yesterday’s Daily Express. ‘Partial victory for nurse in NHS trans changing room row,’ said the BBC. ‘Sandie Peggie’s claims against trans doctor dismissed,’ reported Pink News, ‘but NHS Fife did harass her, tribunal rules.’ 

So what exactly happened? 

Ms Peggie brought claims against her employer, Fife Health Board, and her colleague Dr Beth Upton, accusing them of discrimination, harassment and victimisation as defined in the Equality Act 2010. 

The claims largely stemmed from Fife Health Board having given permission to Dr Upton, a trans woman, to use the female staff changing room at the Emergency Department of Victoria Hospital in Kirkaldy over the period between September 16, 2023 and April 14, 2024. 

But much of the cases centred on two particular incidents: on October 25, 2023, when Dr Upton entered the changing room while Ms Peggie was there; and around midnight on December 24-25 of the same year, when Ms Peggie entered the changing room to find Dr Upton there. A key issue in the case was the way in which the health board responded to a complaint from Dr Upton about Ms Peggie following this last encounter. 

Ms Peggie’s case was based on the following definitions laid out in the Equality Act: 

• Direct discrimination because of (a) sex or (b) belief, as under Section 13 

• Indirect discrimination in relation to the protected characteristics of sex or belief, under Section 19 

• Harassment related to sex or belief, under Section 26(1) 

• Sexual harassment, under Section 26(2) 

• Harassment by rejection of harassment, under Section 26(3) 

• Victimisation, under Section 27 

The tribunal concluded that yes, Fife Health Board harassed Ms Peggie, contrary to the law as set out in the act, by failing to revoke Dr Upton’s permission to use the changing room over the period in question.  

It also found that the health board had harassed Ms Peggie by taking an unreasonable amount of time investigates Dr Upton’s own allegations against Ms Peggie, saying is should not have taken more than six months. The health board making reference to allegations against Ms Peggie about patient care on March 28, 2024, and instructing her on July 5, 2024 not to discuss the case were also found to be harassment. 

All other claims, including those made against Dr Upton, did not succeed and were dismissed. 

Of course, at stake in much of this has been weighing the legal rights of transgender people against those with so-called ‘gender critical’ beliefs, and the roles and responsibilities of employers when such matters come into conflict. A lot of the media interest in the case has been about the precedent it might set for other cases and employers. 

Notably, in reaching this judgment, the tribunal considered the effect of the Supreme Court’s recent decision in the case of For Women Scotland v Scottish Ministers. It concluded that that decision did not result in it being inherently unlawful for a trans female, who is defined as biologically male under the Equality Act, to be given permission to use a female changing room at work. At the same time, it concluded that the Supreme Court decision does not mean that having the protected characteristic of gender reassignment under the Act did not mean that permission to use the changing room was necessarily lawful, either. 

So, the judgement of the Employment Tribunal is definitive on this particular case, but the precedent it sets for anyone else is less clear.  

You can read the full, 312-page judgment published by the Employment Tribunal.