Thread by @tribunaltweets

We hope to be live tweeting day 9 of nurse Sandie Peggie v Fife Health Board and Dr Upton from 10am today or soon after.

Peggie claims sexual harassment, harassment related to a protected belief, indirect discrimination and victimisation.

A reminder that the Judge removed remote access for all but press and Tribunal Tweets because of earlier problems with the CVP.
Discussions yesterday indicate that the case will go 'part heard' at the end of the day Friday. Proceedings are likely to be suspended until July.

The employment judge has given specific directions to witnesses called by the parties to not read our, or any other coverage before giving evidence:

More background information on the case, our earlier coverage and press articles can be found at …
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We endeavour to catch as much of what we hear in court as possible but our live tweeting is not a verbatim transcript. We make every effort to report accurately and will correct relevant inadvertent factual errors. We may use c1s or cs to avoid tweets being suppressed.

Abbrevs used:
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 Russell, KC, 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
B&H - Bullying and harassment
SS - Single sex
HR - Human Rights
TW - Transwoman
HI - Hate incident

PCP - provision, criteria or practice is a rule/policy/ practice that can put ppl at a disadvantage based on certain characteristics. The term is used in employment law to assess whether an employer’s actions create different outcomes for employees based on their characteristics.

KS - Kate Searle, DU's supervisor and A&E consultant
ED - Esther Davidson, SP’s line manager
SF - Stuart Fraser, SP’s RCN Rep
AG - Angela Glancy, headed up SP's investigation
IX - investigation
CX or FC - (formal) complaint
DX - disciplinary
FtP - fitness to practice

We are waiting to be admitted to the hearing.

The first witness this morning is expected to be Esther Davison, Senior Charge Nurse, SPs supervisor.

The Panel has arrived.
J - any new matters
J - swearing the witness,
JR - full name
ED - Esther Davidson
P2 - please speak up
JR - work address
ED - ED at Victoria Hospital.
JR - how long have you worked there
ED - started training in 1986 then have worked there since

then
<some discussiona about how many years - 30+ years>
JR - what is your title now and at the time of complaint
ED - Internal Senior Clinical Nurse Manager
JR - what does that mean,
ED - some management responsibilities, and still do clinical work
JR - what is clinical

ED - work with patients
JR - what are your management resp
ED - staffing, complaints, any Datix, I also think about the future of the department, I am assisted by 2 senior charge nurses
JR - who are the charge nurses:
ED - Louise Curran, Loren Hart (sp?)

JR - who is SP's line manager
ED - both of them
JR - how long have you known SP
ED - since she joined in 1994
JR - what is your working relationship with SP
ED - Sandie works mainly at night, I would see her at handover etc, my work is mainly day shift,
JR - you mentioned

handovers, how many per day and what time
ED - 2 per day 7:30 am and 7:30 pm,
JR - how long is handover
ED - 20 minutes
JR - 2 per day
ED - yes but I wouldn't see Sandie at every handover, only if she was shift coordinator

JR - now going to EDs evidence of August convo with SP. Do you want to read and refresh your memory of I/X evidence. When did that convo happen.
ED - I can't give you an exact date because it was so long ago, but I think it was towards the end of August, I'm basing that on

when Dr U started and began working on the floor.
JR - was anyone else present at that meeting
ED - no, it was just us.
J - could you speak up and speak to us?
ED <apologises>
JR - what was said in that meeting
ED - Sandie said that Beth was using the female CR I hadn't

thought about the CR, I had seen Beth a fair amount in a prev role in psychiatry but I hadn't thought about it. SP told me that she was uncomfortable. I didn't know what the Trust's policy was and I would follow up. ..
JR - before we get there what did you say to SP

ED - I said I would look into it, I don't want anyone feeling uncomfortable, I felt empathetic to her
JR - you said that you did something that day, you contacted the ED manager, who was that
ED - Isla Bumber (sp), IB,
JR - when did you contact her
ED - after she was in the

office, not everyone starts at 7:30.
JR - what time did you talk with SP
ED - 7:40 or so, then got in touch with IB as soon as I could
JR - what did you say to IB
ED - I explained that there was a TW dr in ED, what was the trust policy on tw in women's CR.

JR - what did IB tell you
ED - that Beth was a TW and had the right to use the women's CR, then I went and looked at the Blink system
JR - what policy did you look at
ED - not certain
JR - can I take you to the Equality Diversity and Human Rights Policy, is that the policy that

you looked at that day?
ED - yes
JR - read the 4th bullet point, do you remember reading it that day
ED - I read the whole policy that day
JR - spoke to IB around 9 am, then you looked at this policy after you spoke to IB, when was that
ED - It was so long ago, I don't remember

but I was on non-clinical time that morning so it would have been that morning.
JR - what else were you doing
ED - I was looking to see if there was anything directly relating to transgender, to see if there was anything written locally that would help me come to a decision

JR - you've mentioned NMC code of conduct, no, its the NHS Scotland Staff Code of Conduct, did you look at that
ED - I may have but it's so long ago
JR - the NHS Code of Values, may you have looked at that
ED - I may have. The search I put in was 'equality and diversity'

and so those are the policies I get back.
JR - what else did you do
ED - I spoke to the deputy head consultant, Maggie Currer (sp) she had been advised that Beth was within rights to use female CR
JR - face to face
ED - yes we share an office corridor and I spoke with her

directly.
JR - you've already explained what was said.
ED - yes
JR - looked at docs, spoke to MC, when did you next speak to the C?
ED - I had some holiday, and I think it was the beginning of October when I next saw Sandies
JR - when did that happen

ED - it was in the morning, Sandie was in resus, I was coming on shift,
JR - face to face? at the beginning of October? what time?
ED - It was about 7:40, we arrive on shift at 7:30 then have safety brief so about 7:40
JR - it was in resus
ED - yes

JR - anyone else around
ED - yes, but it was just a convo between us
JR - what did you say
ED - I told her that Beth had the right to use the female CR
JR - what did she say
ED - she was upset and angry, I talked about alternative provision for changing, it's custom and practice

that we use that room as changing facility, the designated CR with showers is in the basement, we have staff members that use the store cupboard to change, or only change in the cubicles, if they are less comfortable with changing in front of others
JR - you said that SP

was angry about what you told. her, how did you know
ED - I don't know if it was anger or frustration
JR - how did you assess her mood
ED - well SP always appears quite stern, so there's that, but she seemed very tense and when I mentioned the cubicles, she said she wouldn't

change in the toilets.
JR - was there any official communication from Fife about the policy for trans people
ED - no there wasn't
JR - why was there nothing from Fife management
ED - I don't know, it would have been nice if MC had had that communication that we would have been

told about it.
JR - now about IX interview; 'she's a gentle caring person' anything else you'd like to tell the tribunal at this point about your thought process
ED - Beth had been working in the dept, we knew Beth, I didn't communicate to anyone on the staff, I didn't think

that there was any need to do any further communication about sexual orientation or identity. The staff had accepted Beth as a woman, no need to say anything further
JR - and why was that
ED - I didn't think there was any need and I didn't want Beth to feel unwelcome in the

department.
JR - what was your awareness of what C believed
ED - I was aware that C was uncomfortable
JR - were you aware of her GC beliefs
NC - I'm sorry, I've let a number of leading questions go....
J - it was a leading question
JR - I will simply ask

it again
JR - what did you know about Sandies' belief
ED - she has strong beliefs, she is a fan of Donald Trumps and his policies, she lets you know
JR - how did you know
ED - just through convo, she was on holiday and told us she stayed in the Trump Hotel.

JR - moving on to Christmas Eve, what were you doing that day
ED - I finished my shift at 19:30, fortunate enough not to work Christmas Day, I handed over to another senior charge nurse, Lauren
JR - what time did you leave
ED - after 8 pm, I think,

JR - when did you hear about the incident
ED - I was working on Boxing Day, I saw email that was sent in the early hours of Christmas Day, saw it about 5 pm, it was a generic type email
JR - I'll take you to that email, sent on 25 Dec, at 00:48, to KS, and ?, and you titled

catch up. When did you see that
ED - I saw that at about 5 pm,
JR - says that Beth had an upsetting encounter with another member of staff, who did you think that was
ED - I had no idea, it didn't say
JR - email from ED to Elspeth Pitt, EP,
ED - it's a short email about dates

and I said that it was not acceptable to have a long delay, no one comes to work to be upset and Beth had had a very distressing encounter
JR - now another email, when did you read this one
ED - when I was back on shift on 31st,
JR - when in day
ED - I think it was midday

JR - read and tell the tribunal what you made of it
ED - when i read that it was KS making us aware of having a chat with DU and telling us about next steps, and not have both Beth and Sandie on the same shift.
JR - when was the first time that you understood that Sandie was

perpetrator of the incident.
ED - I think it was morning of 31st. From LS.
JR - how did she tell you
ED - we either have a face to face catch up or we exchange email or via phone,
JR - what did LS say
ED - she told me that there had been an incident in the CR at around

midnight, which is not normally when the nursing staff are in the CR. And it sounded like there had been a bit of a confrontation between them and that SP had asked Beth about her chromosomes and compared her to a TW in prison.

JR - email from KS to DU, 30 Dec refers to speaking with Lauren, and with ED says you will be meeting with SP. Did you have a meeting with SP around that date.
ED - I had a telephone convo with Sandie on the 1st.
JR - what time
ED - I don't recall
JR - what did you say

ED - LS had been made aware of the convo SP/DU taken advice, and told to put SP on special leave. The holiday period meant that we didn't have the same people to take advice from, you have someone on call but you don't have your HR manager or your service manager.

JR - so LS had taken advice, how did you know that
ED - she told me on the telephone
JR - when you had convo with SP, who called who
ED - I called her, phoned her to discuss next actions, and I had no access to advice to tell me what to do, I felt the safest thing for SP

was to leave her on special leave. And I would get back to as soon as I had been able to get HR advice. Special leave has no financial consequences, you get paid but don't come to work. SP sounded annoyed and it was okay to get paid not to come to work

JR - who made the decision to put her on special leave
ED - LS
JR - you extended SP's special leave why was that
ED - I had no access to HR advice and I didn't want to upset SP or expose her to any further incidents
JR - why was that
ED - clearly it was an upsetting situation

for both SP and Beth. Our code of conduct says 'don't impose views on others' and I wanted to shield her.
JR - what happened next
ED - I made a Teams call on 3 Jan, to get HR support and got access to a senior HR officer, I couldn't get to our designated HR officer, I spoke with

Jackie Hurtly (JH). I was looking for a next step, how to manage the situation, I was told there was to be an IX we had only heard Beth's version, not SPs. In my career, I've never had to be involved in any HR I/X so that's why I sought advice.
JR - who told you there needed

to be an IX
ED - Gillian Malone, I was advised that there needed to be a formal IX. My service manager, Angie Shepherd was also involved in that.
JR - how was she involved
ED - it was going to impact our staffing
JR - I meant by what method, what form

ED - I had a face to face meeting with GM and AS on 3rd Jan.
JR - who's decision was it that there needed to be a formal IX
ED - it was GS,
JR - what happened after that,
ED - I had sought advice on how IX would take place, how to prevent further interaction btwn

Beth and Sandy. Was advised we should try and find a solution, but that seemed unlikely. I had also been advised that there might be some patient safety concerns, that SP had left a cubicle during an incident.
J - please slow down
ED - Because of all these facts I had to

make a decision about who was to remain at work, and about staffing.
JR - taking ED to policy, who made decision to suspend C
ED - ultimately it became my decision, I looked at what the issues were, could I prevent a recurrence, was she unsafe and that led to my decision to

suspend SP on a temporary basis, with the hope that the IX could proceed swiftly and protect both SP and Beth.
JR - why did you think suspension was appropriate
ED - we needed to complete IX into what had happened, just allegations but they could be perceived to be harassment

and bullying and to interfere with patient care and patient safety. Also I didn't want to put SP into the position where there would be a further incident.
JR - in what way might SP have been breaching her code
ED - code says we can't put our beliefs on other people, and

can't harass.
JR - you mention patient safety
ED - at that point I had been told that there was an occasion on which SP had exited a cubicle and not taken obs, I was told by LS, I had seen nothing in writing
JR - how did you tell SP
ED - I phoned her, she said she was close by

and she would come in.
JR - what did you say
ED - said I wanted to have a convo about the incident
JR - what did you say exactly
ED - I don't remember exactly its so long ago
JR - when did you meet
ED - it was fast, within an hour
JR - where

ED - in my office, AS was there also
JR - what did you say
ED - mostly it was chat with AS, about the suspension, and the IX process, we also checked that SP was happy for the meeting to go forward and for her to be unrepresented. The decision for everyone's safety was to

suspend SP.
JR - who communicated that
ED - AS did most of the talking but I was also present
JR - when was first time she was told she was being suspended
ED - at that meeting, 3 Jan
JR - what support did you offer
ED - at that meeting SP was visibly upset, she was shaking

and angry. I was going to make a referral to Occupation Health Service (OHS), I also sent a letter reiterating that about when she could get help.
JR - you said she was angry how did you know
ED - she was flushed, shaking and quite tense. I offered her an opportunity to exit

without walking through the dept, she said I have nothing to hide, she was angry and upset.
JR - suspension letter; is this the letter you sent
ED (reading) yes, it was,
JR - you describe events of 3rd Jan, including convo you had with J Hurks, email from JH to staff....missed

JR - I've finished that topic, this might be a good time for a break.
J - shall we have a break, gives standard instruction to witness.
Court rises.
End of morning session part one.

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