Sandie Peggie v Fife Health Board

 

The NHS Fife case has ended in a muddle but with an appeal likely, further clarity awaits.

What happened?

In the case of Sandie Peggie v Fife Health Board. Beth Upton, a biologically male doctor but  a person who identified as a transgender woman, was using the female changing room at work.

Sandie Peggie, a nurse and woman, complained as she had a heavy period and needed to change her underwear in privacy and did not appreciate Dr Upton invading her privacy.

Ms Peggie was then accused of bullying and harassment and suspended.

She brought claims of harassment, victimisation and discrimination.

The tribunal found that NHS Fife had harassed Ms Peggie but the claims of discrimination and victimisation did not succeed. Many legal commentators see the judgment as appealable, particularly the dismissal of the victimisation and discrimination claims.

It was held that when Ms Peggie complained about Dr Upton, permission to use the female changing rooms should have been revoked on an interim basis. In any event, permission arguably should never have been granted as a single sex changing room space, it should have been reserved for biological women.

This revocation would be until different work rotas took effect, at which point they would no longer be working together.

It was also held that the time taken to investigate Ms Peggie was unreasonable.

In particular, reference made by NHS Fife to unproven claims that Ms Peggie had put patients at risk were deemed to amount to harassment.

The case is ripe for appeal as various relevant factors were not taken into account in our view, including relevant health and safety law regarding the provision of single sex spaces in workplaces.

Why does this matter now?

‘The For Women Scotland’ case, did clear up a lot of confusion by clarifying that sex meant biological sex and that single sex meant single biological sex.

The statutory guidance is awaited but the law has been clarified by the Supreme Court.

What can HR do to prepare for this?

• Employees are entitled to raise concerns with management, ensure that employee concerns are listened to, documented, and acted on if necessary.

• Keep investigations at a reasonable length.

• Keep bullying and harassment policies updated!

• Ensure single sex spaces are provided.