Thread by @tribunaltweets

Day 5 of Peggie vs NHS Board Fife and Dr Upton is expected to begin at 10 am today. Naomi Cunningham will begin her cross examination of Dr Upton.

Previous reporting, background on the case and links to press coverage can be found here on our Substack.
open.substack.com/pub/tribunaltw…

Abbreviations:
C/SP - Claimant, Sandy Peggie
NC - Naomi Cunningham, C’s barrister
MG - Margaret Gribbons, C’s solicitor
R/Board - first respondent, Fife Health Board
R2/DU - second respondent, Dr B Upton
JR - Jane Russel, barrister for Rs
AW - Adam Watson, solicitor for Rs

J - Employment Judge Alexander Kemp
ET - Employment Tribunal
P1, P2 - additional panel members
CR - changing room
AE - Accident & emergency department
PCP - provision, criteria or practice
SM - Sex Matters
HR - Human Rights
TW - Transwoman
ED - Esther Davidson, SP's line manager

B&H - bullying and harassment
SocMe - social media
SM - Sex Matters
HR - Human Rights
KS - Kate Searle, A&E consultant
SF - Stuart Fraser, SP’s RCN Rep
AG - Angela Glancy, headed up in SP investigation

Witnesses for C, in case referred to
MF - Maya Forstater, CEO of Sex Matters
DP - Darren Peggie, Claimant's husband
NP - Nicole Peggie, Claimant's daughter
SB - Sheila Bell, Claimant's mother

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Adding the judge's instructions to witnesses.

We are waiting for the morning session to begin.

We continue waiting for the morning session to begin. Short delays to the first session have been common this week. We will update as soon as we have any information.

We are now 30 minutes past the expected start time of today's proceedings. This is longer than the previous delays arising from difficulties with remote access or waiting for witnesses to enter.
We will back when we have something to report.
Thank you.

Now 11 am. Nothing to report.

We are still in the waiting room. Apparently the hearing will be going ahead as soon as possible but we don't have any knowledge about timings.

We're in at 11.38 and awaiting the panel's entrance

[there are over 200 people waiting in the remote lobby]
[counsel are discussing between themselves which parts of the bundle they will be using next and which parts of the claim witnesses will be questioned about]

J Couple of matter. Plse speak into mics if possible
NC We haven't agreed on further ? to comply w J Timions 3rd Jan order. Draw attention to unwanted conduct, victimisation claim on p85, para 84, detriments by R2 in para 25b by making unfounded alleg of bullying, and 26.3

NC and same detriment against R2. So 18 Qs in list of issues to be determined. each relate to BUs complaint against SP, manner of IX, and decisions made eg whether suspension approp, how IX was made. Crucial to understand what allegs R1 thought investigating

NC And whether concerns were raised by DU. Most important is how issues of patient safety were raised. which is why want to see hate incident labelled docs. Have wanted to see covering emails for some time. Also the formal complaint doc covering email.

J Do u mean how issues sent to R1
NC Yes, how they were transmitted to R1. All emails to anyone as some may have been sent to diff ppl at diff times. Now know was an aboeted IX by ED and then a Glancy IX. Important distinction between hate incident and CX issue re resus unit &

NC missing patient incident.
J The 18th Dec missing pat issue?
NC Yes. We dont have a precise date for the resus issue. We have the covering email, received last night, a new doc you dont.. Sorry, we recieved this on Tues but we cldnt see the attachment & didnt know if hate

NC hate incident or not. At 9pm last night we learnt the document supplied to AG as part of her IX was the hate incident (HI) and not formal CX. [J reading docs now] So u can see it says see find attached, and we know what it is now. The chronology appearing is that ED was stil

NC the formal Investigator appointed, until at least Feb, and then Louise Curren (LC). Now know doc at 732 which had puzzled us, was supplied to ED on 14 Feb so she was still investigating then. It has been unclear

NC MG contacted the board [missed] on 14 Feb. That letter complains that suspension was ill judged, unlawful and R1 had mismanaged and to lift suspension and ensure F only CR return to F only use. At some point later, which may ot may not be connected, ED's IX was aborted and

NC new investigator was found. To expnad on earlier point, we dont think 3 Jan order properly complied with. Decision to start new AG IX, her briefing, Discussions, Her notification that ED now a witness and not IX..nothing is in the docs we have. Unconcievable that no paperwork

NC These should be given to us according to J Timions order.
J Which parts do you rely on?
NC 4, Its v broad as says all documentation. Info has been wrung out of R1 in dribs and drabs and not fully complied with yet. In 4b, re suspension and interactions w R2. The order make

NC Issues central to this claim. Looking for: why SP suspension necessary? Why need senior supervision on her return? Why did IX take so long to get going? What was R1 investigating? What changed what R1 thought was IX? When this changed happened and why?

NC Want to remind you as is clear R1 defience of judges order must be deliberate. Chronology of productions: asked on Tues for original native file format versions incl metadata, the technical data about formation and editing. Material related to HI, undated doc Formal Complain

NC and LC undated document on 462. Also asked for any covering email chains assoc with these items. We told R1 that the orig IX was ED from clues in the bundle. Having deduced this as it hadn't been admitted and we werent told this. They did admit this and is common ground.

NC In light of this surmission, we asked for any docs re appointing new IX team (p419) If you turn to that briefly: on p5 of the 24 page IX report submitted 14 Dec. Recog that signif and regrettable delay, arising from staff absence incl sick leave. Workload demands, changing IX

NC team. So was one of clues. MSF and ED as IXs were substituted to team lead by LC. We looked for all info related to factfinding referred to by AG in her 20 Aug interview w SP. AG says a couple of Qs and DU and LCs statement I can't give the info as wasn't part of orginal

factfinding. We got admission that ED was the original manager of IX, the 14 Feb email attached to LCs statement to ED confirms ED was still in charge. Makes it clear beyond doubt that delib defiance of $a and 4b of the order. They knew full well orig IX and werent candid and

NC didnt disclosed this. Was an early Jan meeting with Currier and ED but nothing in docs to indicate existance of that mtg. Interviewing the complainant didnt seem to have happened until 9 May, after cluster of interviews on 28th April. So no notes from mtg or correspondence

NC about setting up. R1 says is no correspondence about the Cs suspension, but that cant be possible. It's an extraordinary thing to do w 30 yr old staff member. Decided to tear up and start again and inconceivable cld happen w/out signif documents. Esp when EDs support was MSF

NC and she's not called. When evidence of some support from MSF re Cs position. The HI doc was sent to ED on 23 Jan. We keep asking for covering emails about the formal CX. The C doesnt know how board got the FC document - it's shrouded in mystery how it happened.

NC HI doc went in on 23 Jan, and then patient concerns went in. Is a gaping hole in the Rs compliance with judge's order. Patient safety concerns are not in 25 Dec email to KS. On face of things and DU made no allegations at that time. Nothing in cadex. But

NC But, BU submits HI in Jan (23rd) that doesn't refer to patient safety. On 9 May AG says is IX about the HI and there were no prior incident's in DU's statement. [reading docs]
NC On page 444, there's a line where DU says "I think I put in my statement a cpl of other issues".

NC AG asks DU to know more. On p432, a letter from Lottie Miles to the C of 24 March 24, in explaining the arrangements she thinks necess for the C's return and oversight, and lifting suspension and allowing oversight of interactions w patients and staff. So a change here, so we

NC want to see all docs. Sseems Charlotte Miles is aware of these other issues re patient safety but AG doesnt seem to be aware. Considerable vaguesness re what R1 is investigating. So material is of immense importance to tribunal as stakes extraordinarily high for both

NC R2 has made potentially career ending Qs about the C, re her fitness to practice. If allegs are untrue the implications for R2 wld be serious, so these issues must be properly aired befor eht tribunal. We don't know what happened to DUs doc. Nearly a year between 1st draft by

NC DU and it arriving at board. Also defiance when we pressed for BMA docs, that prev days late compliance had alerted us to. Only then. Further material existing was made obvious only then. So numerous indications they've been careless or incompetence w compliance to order

NC Only yday was it said that delay to IX, was 1ry due to MSF sickness. Only came out in the cross yday. In Rs response table, this is partial and misleading information. So a slow and reluctant drip of information for compliance. Other material must exist.

NC What is C asking the tribunal to do about this? Futile to repeat the order, so we'd like specific directions about the searches to be conducted. Steps to do this properly. we want full docs re change of IX and of EDs documentations, to comply w 4a and 4b of JT's order.

NC We'd like all surrounding emails by which the formal CX was sent to anyone in the board, in any version. And we'd like a search of KS's email for any mention about the CX of BU against SP. Also bear in mind, we only received KSs email of 29 Dec at 720...from R2 supervisor to

NC whole dept giving a 1 sided account was only given this week. So indicates order not properly done, and lack of judgment on KSs account about who she shld take to. not the only time KS communicated inapprop which I'll take up w her.
J Both to and from her?
NC Yes both

NC We say is necess for justice given the gravity of claims, and also the disdvantage in prepping for this hearing w/out having all the docs. To put parties on an equal footing. we want u to make specific requests and will draft something for you to consider

JR I object. It is most important to comply w JT's order. Is about producing docs that are relevant to the case.
J I dont think order says docs restricted to the case
JR This isnt a roving public enquiry
J If u think it goes too far you can apply to change the order.

JR Re DUs covering email at 533. I told NC about my instuctions and only ppl who got the doc were the BMA and her solicitor. U had the BMAs doc yday. My opponent thinks this isnt enough and sees something that isnt there. It was the solic beside me who sent the doc to the baord

which is why it's an Appx to the report. Mr Watson emailed it to the baord and we can provide it to you. Ordinarily this wld be covered by confidentiality.
J Advice can be redacted
JR Of course.
J If y're happy to, we can address that later
JR Of course. So it shldnt stop

JR today x exam. It wasn't sent to anyone else. On p277, Jacqueline Hurst sent this doc, available to the C since 20.12.2024 to Ann Hampton. You'll see them discussing the checklist and ED will be in touch re the team. So this cannot be a mystery about the IXs and ED ws involved

J Heading od suspension and HR advice, and not a Q re the IX.
JR The IX ran together. You wldnt IX a suspension
J It's about establishing in the future as says "will be in touch". So want an IX then..correct? On face of it, we dont have a team yet?

JR Is suggestion that ED was involved in an earlier IX
J It says ED will set up an IX
JR It may be that. I'm instructed thT EDs only action was to take DUs statement. That was her only activity.
J Please don't interupt NC. Was there an IX by or involving ED?

JR The limit was collecting the WS of DU
J Answer the Q
JR I wldnt call it being involved in an IX. I will take instruction on this. They say there's a mystery as mention of ED and the IXs were different ppl. The person who decided ED shld not IX was Anne Hamilton. Had a

JR verbal discussion only. She was involved as C had approached her w her concerns previously. When AH realised that she told ED she cldnt be involved in the IX. Rs talk to each other in a bust dept, eg an IX planning Teams meeting

J Were ther notes of Teams mtg?
JR I dont think so. Mr Watson is clearing that up
J How long will this take?
JR Break it down. Closure of complaint cld be over lunch. 2nd category might be confirming re Teams invite had no notes
J We're going back to terms of the order

JR Re EDs role in only collecting a statement.
J So just a postbox? What did the postman receive and do?
JR That leaves KSs emails. My instructions are there arent any more but another search is ongoing as I've said is important. It will be done before her evidence

J The C team would like earlier so please explore timing over lunchtime
JR So proportianate and fair admin of justice in doing these 4 things. There has not been deliberate defiance. That's unnecc and hyperbolic statements

NC firstly, her position of instructions that only Adam Watson's email.. I want to press for an order for specific searches for 2 reasons. One that Rs appraoch to compliance has been if not deliberately defiant has been incompetent. The board isnt a single mind, so whoever

NC Mr W has been emailing isnt clear. Also KSs email to all was only recently disclosed
J Are you asking for a search of all R1s staff?
NC As IT to go through a list of custodians.
J May be 1000s of replies that aren't relevant to this case?
NC yes, need search terms clear

NC And will need a manual review, so need careful search terms
J Can u find out if R1 IT can do this?
JR We'd need to postpone the case if this is done
J That's to be determined?
NC Miss Russell says isnt a mystery that ED involved, re setting up team. The email is perhaps a

3rd crumb, if we'd spotted it. It isnt a candid explan of a prior IX. And want to respond to JR saying EDs only involvement before being stood down was collection of BUs statement. but we know isnt the case as ? statement also sent to her on 4 Jan 2024. And have indic that more

NC indication about the original factfinding. See what AG says.
JR I don't think...
NC Sorry, let me finish. I'm reminded that an email to MG solicitor we had the answer yday from AW that ED was changed as may be a witness
JR Not inconsistent with what I said

J We need to deliberate about this, and when to return. Should this be this pm or not?
NC I say to defer. If you don't give another order, plse ask them to look harder
J It may not exist in writing, but u think it' s v high likelihood it exists?
NC Yes I do
J What do u think

JR I think we shld defer cross examining too
J We will return at 2pm to discuss these issues but you wont be giving evidence. I need to remind you that you cannot discuss the case DU, but you may need to discuss any new paperwork with JR and I leave it to JRs judgement that you

J remain within the proper boundaries of what you discuss with her. But you won't be giving evidence today. You may remain in court DU to listen to 2pm discussion, counsel please say if this needs extending, or otherwise return on Monday.

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Day 5 PM thread