Partial victory for nurse in NHS trans changing room row

A nurse who objected to sharing a female changing room with a transgender doctor has won a claim for harassment against NHS Fife but other allegations of discrimination and victimisation were dismissed.

Sandie Peggie was suspended from her job in a hospital’s A&E department after she complained about Dr Beth Upton – a biological male who identifies as a woman – using a female changing room.

An employment tribunal judgement outlined four ways in which NHS Fife harassed Ms Peggie but dismissed the other allegations against the health board and all claims against Dr Upton.

Ms Peggie welcomed the decision and said the past two years had been “agonising”, while NHS Fife said it would take time to work through the details.

The employment tribunal, which took place earlier this year, was high profile and controversial.

It was brought by Ms Peggie, a nurse who has worked for the NHS for 30 years.

She refused to share a women’s changing room with a transgender colleague at Victoria Hospital, in Kirkcaldy, and was suspended from work at the beginning of 2024.

Ms Peggie claimed her experiences amounted to harassment and took legal action against the health board and Dr Upton, citing the Equality Act 2010.

In a written judgement on Monday, the tribunal found that NHS Fife had harassed Ms Peggie in a number of ways.

It said that when she complained to her employers about Dr Upton using the women’s changing rooms, permission should have been revoked on an interim basis.

It said the NHS should have stopped allowing Dr Upton to use the changing area until different work rotas took effect – at which point they wouldn’t be working together.

The tribunal also ruled that the health board had taken an unreasonable time to investigate the claims against her and that officials were wrong to tell her not to discuss the case.

The health board’s reference to unproven claims that Ms Peggie had put patients at risk was also deemed to amount to harassment.

However, Ms Peggie’s claims of discrimination and victimisation by NHS Fife did not succeed and were dismissed, as was her claim against Dr Upton.

A separate hearing will take place at a later date to decide on the “remedy” for Ms Peggie, which could result in her being awarded compensation.

Following the judgement, Ms Peggie said: “I am beyond relieved and delighted that the tribunal has found that my employer Fife Health Board harassed me after I complained about having to share a female-only changing room with a male colleague.

“The last two years have been agonising for me and my family. I will have much more to say in the coming days once I’ve been able to properly consider the lengthy judgement and discuss it with my legal team.

“For now, I am looking forward to spending a quiet few days with my family.”

In a media statement on Monday evening, Ms Peggie’s legal representatives said that “due to the length of the judgement and the fact it was only received at 10am” they were not going to make a “substantive comment”.

However, they added that their “preliminary thoughts” were that aspects of the judgement were “hugely problematic”.

A spokesperson for NHS Fife said: “NHS Fife recognises that this has been a complex and lengthy process and acknowledges the careful consideration of Judge Kemp and the tribunal panel.

“The employment tribunal unanimously dismissed all of the claimant’s allegations against Dr Upton and all of the allegations against the board, apart from four specific aspects of the harassment complaint.

“We will now take time to work through the detail of the judgement alongside our legal team to understand fully what it means for the organisation.”

Scotland’s first minister John Swinney said the tribunal ruling in “this complex case” was important and that his government would look at the “general issues to be learned”.

Mr Swinney told BBC News: “It is important to take time to consider the judgment, that is the role of NHS Fife to do so, and of course the Scottish government will consider any issues that arise out of the judgement for the taking forward of public policy in this area.”

Asked whether he thought Ms Peggie was right to raise the case, Swinney said that “individuals with concerns about their employment practice are free within the law to raise any concerns that they have”.

The campaign group Sex Matters, which backed Sandie Peggie in the case, said it was very disappointed in the approach taken by the tribunal.

Maya Forstater, the organisation’s CEO, said it should have provided employers with clarity regarding single-sex spaces and that should have meant giving them the confidence to refuse to let trans women use those spaces.

She added: “It is a travesty that a woman can be judged as having expressed herself in the wrong way when she objects to finding a man in the women’s changing room.”

Ms Forstater said there was an “urgent” need for the Health and Safety Executive to provide clear guidance to employers regarding workplace toilets and changing rooms.

However, discrimination lawyer Robin Moira White – who works with Translucent, a trans-led advocacy and human rights organisation – said the ruling was a “very sensible, balanced judgement”.

She said the tribunal had found that Sandie Peggie had harassed Dr Upton, not the other way around.

Ms White added: “It recognised that both trans people and gender critical people have rights in the workplace and employers have to balance those.

“This is showing trans people need to be accommodated appropriately in workplaces, be it toilets or be it changing rooms, and that can only be to the good.”