After two years of being subject to relentless criticism which saw her attacked on the front pages of leading newspapers and talked about incessantly on social media, Dr. Beth Upton has been cleared on all counts. Together with NHS Fife Health Board, the junior doctor, not long out of medical school, had been the target of a claim based on the Equality Act (2010) and alleging sexual harassment, harassment related to a protected belief, indirect discrimination, and victimisation.
“She has been dragged through this horrendous, invasive process for no good reason,” Scottish Greens co-leader Ross Greer told the BBC.
The case stemmed from an incident on Christmas Eve 2023 when Dr. Upton was using a changing room cubicle in the A&E department of Victoria Hospital in Kirkcaldy, Fife, where she was working. Upon emerging, she was confronted by Sandy Peggie, a nurse at the hospital, who vocally challenged her about her right to use the facility, based on the fact that she is transgender. She reported the incident to her line manager, saying later that it had made her feel unsafe.
The tribunal that Peggie went on to initiate released its verdict today. It found that Peggie questioned Upton in a manner that clearly invaded her privacy, and that she intentionally compared her to a rapist.
NHS Fife guilty of harassment towards Peggie
Parts of the judgement went in Peggie’s favour. Judge Sandy Kemp held that NHS Fife had behaved in a manner that amounted to harassment in its dealings with her, suspending her too hastily when other concerns about her behaviour emerged, dismissing claims that she had endangered patient safety, and ruling that it took an unreasonable amount of time to investigate the situation. It also found that NHS Fife had incorrectly told her that she was not allowed to discuss the case, not explaining until two weeks later that she was in fact only forbidden to discuss the investigation.
Peggie’s claims that she had been victimised and discriminated against were not upheld. Nevertheless, she welcomed the ruling. Although she recently initiated a further claim against the Health Board, specifically targeting chief executive Carol Potter and director of people and culture David Miller in relation to their handling of the disciplinary process against her, she said that “the last two years have been agonising for me and my family.”
A damaging experience for Peggie
Press coverage during this period was largely sympathetic to Peggie, but the emergence of multiple claims that she had a habit of making racist remarks put her in an uncomfortable position. When her posts mocking flood victims in Pakistan came to light, some of her more vocal supporters decided to focus their attentions elsewhere, and it seems probable that the revelations will have a negative effect on her future employability.
Although Peggie is now awaiting the outcome of a further hearing to determine the compensation she might receive, it is not clear that either woman really benefited from the process or from the intense public scrutiny of the case. Needless to say, employment tribunals do not normally make headlines. Matters of this sort are usually handled quietly, internally, and are relatively simple to resolve.
‘Balance of rights’ is required – common sense
In this case, a change in rotas meant that Upton and Peggie would soon cease to be in the building at the same time, so there would be no further issue with them meeting in the changing rooms, something that only happened twice. Peggie’s lawyer argued that the recent Supreme Court ruling on the Equality Act should have meant that Upton was not allowed to use the changing rooms at all, but as the tribunal made clear, this is a misinterpretation. What is required is sometimes described as a ‘balancing of rights’, and more often described as common sense. For instance, each woman could have been asked to do something simple like leaving a post-it note on the door of the changing room when she was using it, and removing it when she left, so that the other could wait if necessary, in order to avoid upset.
The tribunal ruling dismissed claims that trans women are dangerous to other users of spaces like this, stating that “having read all of the documents, there is very far from sufficient reliable evidence to establish as a fact that [they are] a greater risk to any person assigned female at birth within a changing room environment at a workplace than another woman assigned female at birth”.
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