EMPLOYMENT tribunals rarely create waves. But the case of Mrs S Peggie v NHS Fife and Dr Upton is holding both political parties and public bodies to account while forcing a reality check on the trade union movement. 

Sandie Peggie’s claim against NHS Fife is for sexual harassment, belief discrimination and victimisation. A nurse with 30 years’ service, she objected to sharing a female changing room at the Victoria Hospital in Kirkcaldy with a male doctor who identifies as a woman. Her employer’s policy meant her single-sex changing room was now mixed sex. 

She raised her concerns with her line manager before an incident one night when she expressed her discomfort directly to Dr Upton. He complained, resulting in her investigation for misconduct and suspension. The class power dynamic of the situation is difficult to overlook. 

The tribunal, widely covered in the Scottish media, began on February 3 and is currently adjourned until July, but the timing meant both Unison’s UK Women’s Conference in Edinburgh, and the Scottish Labour Party Conference were held in the glare of its publicity.  

Both featured motions on gender issues and took decisions rejecting sex-based rights. In Labour’s case this was a vote against the leadership position. On the eve of conference, Scottish Labour leader Anas Sarwar had publicly backed the complainant, Sandie Peggie, recanted his party’s support for the Gender Recognition Reform (GRR) Act (rewriting history along the way), and affirmed Labour’s support for single sex spaces based on biological sex. 

Like the “Isla Bryson” case, in which a convicted rapist was sent to a women’s prison, the Peggie tribunal lays bare the problems caused for women by policies allowing self-ID of sex. Then it was Nicola Sturgeon, now it is John Swinney’s turn to stumble for words to defend his government’s position. 

Peggie’s case exposes how the policies of the NHS and other public bodies now exceed the law, thanks to the misinformed advice of Stonewall and other government funded “expert” groups. The Equality and Human Rights Commission has now intervened, writing on February 21 to remind NHS Fife of its legal obligations and responsibilities under the Equality Act 2010. It has has also written to the Scottish Health Secretary with a similar reminder about his government’s guidance.

This is a case that should never have happened and responsibility lies with the Scottish government, the NHS and the trade unions. 

Their collective disregard for women’s rights has been made public. Inaccurate guidance issued by all of these organisations advises that individuals can choose which single-sex facilities they wish to use according to their gender identity. This mistaken position is set out in model trans equality policies produced by trade unions.

In point of fact, the Workplace (Health, Safety & Welfare) Regulation 1992 requires employers to provide separate changing rooms and toilets for male and female staff. 

NHS Fife has failed to do so. Its workplace policy is not compliant, and it did not conduct an Equality Impact Assessment. The tribunal also heard that Upton began transitioning only 18 months ago, meaning he is ineligible for a gender recognition certificate. Legally he is male and as such must be treated like any other male employee.  

Furthermore, under the Public Sector Equality Duty, NHS Fife has a duty to foster good relations between groups of staff with different protected characteristics. Neither Upton nor Peggie should ever have been put in this position. It is the employer’s failing and NHS Fife has failed both. 

The NHS trade unions surely have questions to answer. They sign off employment policies at national and at local NHS board level. They are experts in employment and equalities law, employ legal officers and have access to specialist legal advice. Their role is to scrutinise employment policies and hold employers to account for their responsibilities. So, what happened here? Are their full-time and lay officers misinformed about the law? Or is this indicative of institutional capture?

The main health unions, Royal College of Nursing (RCN), Unison and Unite, claim to support the Equality Act including the protected characteristic of sex, while also having policies supporting self-ID of sex and the belief that “transwomen are women.” They deny that there is any conflict with women’s rights. Indeed, against the backdrop of the Peggie case, Unison’s women’s conference endorsed a motion stating exactly that. 

Peggie’s trade union, the RCN refused to represent her. The Peggie case has placed trade unions in a highly unflattering spotlight before their majority female memberships. And this is not going away. A similar tribunal case involving a group of nurses in Darlington begins soon. It would be surprising if unions were not doing a pretty quick reassessment of their positions, as Labour has done — although more likely it might be a long wait. Both the Scottish TUC and Unite issued public statements condemning the Scottish Labour leadership for its about turn on the GRR (Scotland) Act.

The UK government blocked that Act, preventing self-ID becoming law in Scotland. The Peggie case illustrates what enforcement of the GRR Act would mean for women. For the political parties that voted the Act through at Holyrood in December 2023 and the trade unions that support it, the chickens are coming home to roost. 

Because the reality of biological sex is central to the case, the tribunal agreed that Dr Upton could be referred to as male, rather than his preferred pronouns of she/her. For the same reason of clarity that is adhered to in this article.