Thread by @tribunaltweets

We will to be live tweeting the Afternoon of Day 9 of nurse Sandie Peggie v Fife Health Board and Dr Upton from 1:50pm today or soon after. Peggie claims sexual harassment, harassment related to a protected belief, indirect discrimination and victimisation.

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:
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

IB - Isla Bumba, Equality and Diversity Lead NHS Fife
MC - Maggie Currer, consultant
AS - Angie Shepherd, department service manager
LC - Louise Curran, senior charge nurse
LH - Lauren Hart, senior charge nurse
GM - Gillian Malone, head of nursing

We begin.

Esther Davidson (ED) on the stand.
JR - ED has appts tomorrow am, cross exam est is 2.5 hours, will we meet it?
J - will see at 3:45
JR - someone back row, poss filming fyi.
J - filming is a crime on this premises.
NC - poss that my phone pinged, accidently screenshot

all laugh - it wasn't that noise, it was back row.

NC - good afternoon ED.
NC - couple of qu re SP. 30 years unblemished service
ED - since 1994
NC - worked with you at least 20 years
ED - since she started.
NC - now on opposite shifts, see eachother at handovers

NC - knew her better before she went part time?
ED - I was junior then, thought SP worked twilight shifts then.
NC - go back a long way
ED - yes
NC - all your time as charge nurse, no issues or complaints?
ED - one, a jr member of staff, could have been a clash, jr person

ED - felt driven to unprof behaviour.
NC - jr was unprofessional, no reason to think SP unprof?
ED - no
NC - SP said not happy about DU encounter?
ED - yes
NC - she found it intimidating and embarrassing?
ED - that's what she said.
NC - reason to doubt?
ED- no
NC - did you?
EDno

NC - refs page - 1/3 way down your interview with AG, she gives your account of conv. says you said, not aware of that will contact Eq and Div. that you'll check policy and get back. SP says you were sympathetic and you'd get it sorted?
ED - don't want anyone upset, was sympath

NC - get it sorted?
ED - not my recollection.
NC - were sympathetic?
ED - yes
NC - your reputation is you will stick up for nurses
ED - yes
NC - you wouldn't have beens ympath to someone no wanting to share with a black nurse.
ED - no, not appropriate.

NC - you said you would have liked to have been informed about trans use of CR by others?
ED- yes
NC - if you'd had prior warning, you could have been prepped
ED - Could have said to SP rather than her having to wait.
NC - prior warning of TW using CR would have been good as

NC - new and potential issue.
ED - yes
NC - not a surprise it's a problem for some
ED - only person who has said is SP
NC - not surprised it arose?
ED - hadn't thought about it.
NC - nice to have had comms before it happened, as even if required by law for TW in F CR, you could

NC - have informed nurses and had time to discuss any issues
ED - if they had told me I could have made a judgement
NC - would have been fair to warn nurses rather than surprised half undressed?
ED - don't know how it could have been misconstrued, could have been looking at TW

ED - as different. Not given that opportunity.
NC - said it would have been nice to know in advance, and then your answer as recorded by AG is a bit different. No comms sent to say DU was using F CR, don't have right to make her feel unwelcome.
ED - yes I said that

NC - that is the approved answer, what you are meant to say. It is rude to DU to tell nurses he'll be using the CR?
ED - a judgement call.
NC - you said, didn't think need. Expected to respect others cultural beliefs, but the right answer was you would have liked to be warned.

ED - only SP
NC - needed to warn all nurses not just SP
ED - doesn't seem to bother others
NC - did you know SP had been assaulted by a male GP when 17
ED - didn't have that info
NC - not surprising a woman with a hist of sexual trauma is partic upset by sharing CR with a male

ED - not unreasonable she would be upset. But there are other changing facilities, I wouldn't have put myself in that situation
NC - no reason yo shoudl have known about the assault. WOuldn't expect to know this about any of your nurses.
ED - no
NC - may be other nurses with

NC - history of sexual trauma
ED - I wouldn't know
NC - people don't declare it to employers?
ED - no, I wouldn't know
NC - may be any no. of nurses with trauma who feel upset etc on encountering DU in changing?
ED - couldn't comment
NC - others put at this risk

NC - meeting DU undressed in CR
ED - can only assume they are at risk of being exposed to that in CR
NC - other reasons too why nurses may be upset meeting TW in CR, religious beliefs, strong cultural taboos re proximity to men. All exacerbate?
ED - there are others who

ED - change in cubicles away from women
NC - wide range of feelings
ED - and choices they make
NC - wide range of feelings, personal histories, religion and taboos you may not know about - you are right it would have been nice for you to know DU going in there B4 it happened?

ED - yes it would
NC - so you could tell them in advance to be fair to the nurses
ED - yes
NC - you said, meant to be respectful of cultural beliefs, in that context you meant DU belief he's a woman?
ED - don't understand. Lots of cultural beliefs.

NC - I'll be clear. You said you didn't need to tell team because that would make DU uncomfortable/singled out and you are meant to be respectful of cultural beliefs - you are refering to DU belief
ED - DU believes is a woman, there are all kinds of beliefs.

NC - you were sympathetic to SP, when you wouldn't have been if she didn't want to share with a black nurse, so it is different. Because wearing makeup, growing hair etc doesn't make you a woman
ED - I have no expertise and am not a TW so can't answer.
NC - it's a fact, I know

NC - it's uncomfortable, it's hard to say, but because a man wears clothes, grows hair etc it doesn't make him a woman. It's a fact
JR - object, false premise it's a fact. it's her belief.
J - qu of case is facts and law. Might be a necessary fact, what is sex of R2

JR - we need a skilled expert to deal with sex qu
J - so put that later. C's case is that R2 is male. It is a disputed qu, it's a mix of fact and law. That is being put against you, we are dealing with EQA.
JR - how can this witness answer this?
J - it is a permissible qu, it

J - may help
NC - qu again. Asking you to agree, it is uncomfortable becuase it has been made difficult to say. Stages Growing hair doesn't make him a woman?
ED - some men have long hair
NC - if that man there grew his hair would it make him a woman?
ED - no
NC - if he shaved?

ED - no
NC - wore make up?
ED - no
NC - womens clothes?
ED - unless he identified as a TW, no. I just have to be respectful of others beliefs as in code of conduct.
NC - at clothes you changed your answer. Do clothes make you a woman

ED - if he identifies as a woman
NC - if he's done none of those things, but says he's a woman, is he?
ED - not my job to say. I'm not an expert, I have to respect what they are telling me. Doesn't influence me being able to treat patient.

NC - it's right a GI doesn't impact treating them?
ED - no
NC - no impact on blood tests, whether they might be pregnant etc? GI is in their head
ED - indiv thoughts and feelings.
NC - what sex someone is matters for blood tests, normal ranges vary by sex.
ED - which ones

NC - troponin levels, diff range for men/women to do with heart attack?
ED - it's the same for men and women, ascending or descending levels. Only test I can think of is pregnancy - beta hcg.
NC - normal range of red blood cells differs by sex?
ED - not my expertise

NC - even weight, healthy ranges are based on sex?
ED - we don't weigh a lot
NC - BMI?
ED - height and weight
NC - and sex
ED - no just height and weight
NC - are you saying pregnancy is the only thing that would differ between men and women?

ED - only one I can think of
NC - not blood cell count?
ED - no
J- says it's the only one she knows
NC - whether M or F is written in every cell of the body
ED - don't understand.
NC - if in doubt, rarely, but if in doubt you can do a simple cheek swab
ED - DNA swab?
NC - yes,

NC - it will tell you sex
ED - yes
NC - a cheek swab will tell you if body is m or F
ED - will give you DNA, individual to everyone
NC - will tell if M or F
ED - yes it's your unique identity
NC - those tests won't be changed by hair, make up, clothes
ED - I don't know, a nurse

J - she says she doesn't know you can ask Dr Searle,
NC - I will
J - she is a senior Dr. It's difficult for this witness to answer these qu, she's not got a Dr degree, not to downplay nurses quals but it's different.

NC - agreed a swab will tell us indiv sex
JR - she said unique identity, given by witness she explained.
NC - and next qu was including sex
J - checks notes - there was a yes to it tells you if M or F
NC - yes, do you agree sex is a real thing?
ED - yes
NC - it's about bodies?

ED - yes
NC - when it matters whether M or F.....maybe not a qu for you. IS recognising sex is real and sometimes matters is gender critical beliefs?
ED - I don't know what GC beliefs are?
NC - do you recognise sex is real and sometimes matters?
ED - appearance?
NC - no, DNA sex

NC - and it has real world consequences IRL?
ED - I suppose
NC - do you agree a lot of people think that?
ED - no idea
NC - it's reasonable, people come in M or F and sometimes it matters?
ED - depends on context
NC - for those who think that and don't think sex is changed

NC - by clothes, make up etc, it's not surprising they are upset by men in F CR;s
ED - your feelings are your feelings
NC - SP approached you a second time and told you of second time she saw DU, when SP was in trousers and bra?
ED - she came in august, then I spoke to her in oct

ED - there was nothing I could use to exclude DU, I don't think there was any other conv
NC - you gave her feedback on your conv with IB?
ED - yes, no other conv
NC - yes that's the conv I mean, in october. You had contacted IB, found nothing to support you excluding DU

ED - was told by IB that DU identified as a woman and had to be allowed to use F CR
NC - you say nothing to support exclusion, SP says you said you hadn't got anywhere. Were you aligned on this with SP
ED - I said effectively I couldn't help.
NC - you were hoping to stand up

NC - for your nurse
ED - I wanted a solution
NC - you wanted IB to say there was a way of excluding DU?
ED - I wanted to know what the policy was to make a decision
NC - SP says you said you'd get it sorted, then
JR - objects, witness did not say she'd get it sorted. causes

JR - confusion.
R's solicitor audible comments and proceedings stall.
R's sol apologises
NC - You said you hadn't been able to get it sorted.
ED - SP approached I looked into it. Could find no policy to support excluding DU from F CR.
NC - investigation you began.

NC - you were new to your role?
ED - yes 3 weeks in
NC - not a great start, had you ever done one before?
ED - no
NC - any training?
ED - no
NC - how come it fell to you?
ED - I was clinical nurse manager for dept.
NC - refs pages

NC - that's the exchange from this am, between EP and you on boxing day. You said first heard about it from this email
ED -y
NC - you said you didn't know who was involved, only DU
ED - yes no name
NC - looking at EP email, *reads fast* it's obvious so far EP has only heard DU

NC - side of story?
ED - yes
NC - you said it's unacceptable, what was
ED - no staff member should be distressed
NC - you only know DU's pov, other staff may also be upset
ED - the senior charge nurse on shift saw no upset and knew nothing of it

NC - senior charge nurse saw no upset in whole dept?
ED - none
NC - if DU had to go in extreme distress to the office, describe the route
ED - along exterior corridor and up, not through dept, through observation ward.
NC - if DU had gone round whole dept before

NC - heading to EPs office lots of people would have seen?
ED - not sure what route that would be?
NC DU said he wen't around
JR - not sure we can discuss others evidence
J - yes we can
NC - you would have expected it to be noticed if he'd gone round the dept looking distressed?

ED - I would have thought she would have been made aware.
NC - 26th Dec Tuesday, you're in?
ED - on duty, lists other dates she was on duty
NC - on 26th your content to pick up incident 31st or some later time
ED - would need more info
NC - not in on the 3rd?
ED - no

NC - spoke to Jackie Hurkis on the 3rd?
ED - yes
NC - came in to speak to her?
ED - think i was working an extra day

J - take a 5 min break as we are heading to new document.

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