Thread by @tribunaltweets

Coverage of the first morning session of Peggie vs NHS Fife & Dr B Upton will be in this thread. Scheduled to resume at 10 am. There may be delays as it is the 1st hearing day with new remote access arrangements.

Our Substack on the case can be found at this link.
open.substack.com/pub/tribunaltw…

A reminder on the limitations of our reporting.

Admonition from Employment Judge Kemp to any potential witnesses to avoid Tribunal Tweets coverage.

Abbreviations

Offered without comment for information of our readers.
heraldscotland.com/news/25316918.…

We will return when the hearing commences, expected to be at 10 am.

It is now 10:35 am. The in person observers & press have not yet been admitted to the hearing rooms.

Observers are now being admitted to the in person hearing room.

Now 11:05, still waiting.

We begin. The J & Panel have arrived.
J - taking Isla Bumba (IB) through formalities.
JR - IB - full name please,
IB - Isla Marie Bumba
JR - how long at R1, what is your role
IB - my role is advisory, to advise on compliance with EA.

J - I take notes as well, can I ask you to go quite slowly.
J - it's quite warm in here, anyone who wants to can take their jackets off.
<a number of jackets coming off>
JR - can you direct your replies to the Panel
JR - what is your title
IB - Equality & Diversity Lead

JR - your background and qualifications please
IB - relays degrees, (did not get all details) bachelors in immunology, master degree in public health
<JR/J - discussing the bundle>
JR - the total bundle is 1600 plus pages,
J - I was told the second binder is the supplementary

bundle,
<J leaves to get another binder>
J - the page numbers I gave earlier were out by a large number
JR - we will recalculate and come back to you
<some moving of microphones for witness>

JR - page 1186, email not sent by you or to you, but mentions you, please read it. I will ask you about it.
JR - Doyle refers to a discussion, says he made contact with you on 29 Aug, and 2nd discussion you had with MC, can you recall the first discussion
IB - I don't recall

JR - do you recall MC discussion
IB - I don't recall a discussion that day
JR - regarding the email with advice he says you gave, do your have a view on the bullet points
IB - missed
JR - can you recall a discussion with Esther Davison (ED)

IB - yes briefly, from memory it was an unscheduled call, might have been teams or phone,
JR - who called whom
IB - I believe ED called me
JR - what was the discussion
IB - I was asked for very generic advice, they were about to have a trans member join their work force

and she was seeking advice, especially on CR (changing rooms)
JR - what did you say
IB - I said it might be discriminatory not to allow the person to use the CR that aligned with their GI but it might be worth having a convo with the person, were they open about trans status

JR - the EQ commission, code of practice, please read para 57
JR - explain to the ET how you arrived at your advice to ED
IB - i went on my understanding of that para, and what other health boards in Scotland were doing, we didn't have a policy at the time.

JR - guidelines for supporting trans staff and patients, version 2.0 Jan 2016. Approved on on 18 July 2018.
J - it says St Helens & Nosely (sp?) Teaching hospital, is that the same document
JR - back to 1124, is this a Fife doc or from another trust?
IB - I don't believe

this is Fife document, but I don't know where it came from, I have seen it before.
NC - < Brighton and Sussex>
J - is this in evidence
JR - I believe this is relatively uncontroversial
NC - agrees
<page numbers and sources set out for ET>

<a number of docs from other NHS trusts>
JR - are these the docs you used when giving your advice
IB - I definitely saw one, and I probably saw some of the others but I don't recall specifically
JR - go to Brighton docs, para 8, please read

JR - on use of single sex facilities.
<pause for reading>
JR - mentions GRC, and says they can use the toilets and facilities of acquired sex, did you use this for your advice
IB - I'm not sure that I used it for my advice, not sure when I saw it
JR - what about St Helen's doc

JR - please read and tell the ET if thats one of the things you had in mind.
IB - what was your question
JR - did you have this in mind
IB - not that particular para but that's what policies were saying at that time
JR - what about Lanarkshire one? that advice?

JR - describe for the ET, how your understanding fits with this advice
IB - my understanding was that this was NHS boards were doing at this time, it was the general consensus
JR - Durham document; use of gender specific facilities, would you read and then explain if you

considered it as part of the advice you gave ED?
IB - What was the question
JR - was this one of things that formed part of your research
IB - this is an English policy, I cant be certain I read this before giving advice, but it was consistent with what was being done at the time

JR - Highland policy, was this one you had a look at
IB - I believe so
JR - para 2, supporting transgender in the workplace, treating as self declared gender, please read that to yourself. How does that align with your understanding of that topic

IB - it aligns exactly with my understanding of the topic
JR - please read paras on harassment and explain to the ET how that aligns with your understanding
IB - what is the question
JR -repeats
IB - that was consistent with my understanding of the topic at the time, however it

seems a bit harsh, language does not acknowledge GC beliefs that they need to be taken into consideration
JR - now on to changing facilities and showers, please read and explain to the ET how that aligns to your understanding of the topic
IB <reading>

JR - how does align to your understanding of the topic
IB - generally it aligns to what all boards were doing at the time, it seems quite welcoming to all trans people at all stages of their journey, this one is from the onset of social transition, which is more than others.

JR - how was all this relevant to your work
IB - I was charged with writing this policy for NHS Fife, I was leaning on other equality leads, and seeking copies of their policies, I reached out directly to some colleagues for their policies.
JR - when you say colleagues

where were they working
IB - Every board has someone in my post, we come together as a network.
JR - who did you reach out to
IB - names?
JR - which boards
IB - Mentions several Scottish boards

JR - what is that group
IB - Network of Equality Leads
JR - how often does it meet
IB - I believe it was meeting bimonthly, frequency has changed over the years
JR - what sort of topics discussed
IB - could be literally any EA topic, trans was a hot topic, could have been

interpreting services, sometime we have guest speakers, if someone has developed a useful tool, they might come and talk about it
JR - back to stat code of practice, refers to excluding people if a proportionate means to legitimate aim, explain to the ET your understanding of how

many transpeople working at NHS Fife at this time
IB - I believe we had a small number of trans people who identified themselves, but there may have been others who had not declared their status
JR - what % of staff did monitoring form
IB - I believe all staff were asked to do it

but the questions are not mandatory and people don't need to say what's true
JR - how many is a small number
IB - less than 5,
JR - but more than 1
IB - yes
JR - were you aware of any complaints about trans people using CR of GI
IB - no
JR - another other complaints besides

Ms Peggie.
IB - no
JR - any risk assessments undertaken on this policy
IB - we didn't have a policy, so not way to do a risk assessment
JR - let's go to draft policy,

JR - you said no policy but we have a gender transitioning guide, what was it's status
IB - I don't know what doc this is, it has not date, I'm not sure if this is the draft policy, I'm not sure, might by Once for Scotland
JR - what does Once for Scotland mean

IB - all boards will tend to adopt a Once for Scotland policy once published.
JR - you mentioned you were working on a trans patient guide, is there a trans staff policy
IB - not at Fife,
<now discussing soft launch of OfS policy on trans in workplace.

JR - did you give feedback on this
IB - I don't recall that I gave feedback on this policy
JR - what kind of feedback did they get
IB - I would have to read it all over to be sure but I recall that most were reassured by it, it was what they were currently doing/expecting

JR - coming back to phone call - did you give any written advice
IB - no written advice
JR - how often did you give advice on trans policies in that period
IB - frequently, once a week
JR - any other queries on CRs
IB - no

JR - when did you next hear about these individuals?
IB - an email from KS on 8 Dec
JR - what did you make of her email
IB - I thought it was a reasonable email, she was looking on how to support someone she was supervising, we did not have a policy
JR - what are you telling her

in your email
IB - I'm ref the OfS policy, we were expecting it very soon, it might be helpful
JR - what's the geo scope of the OfS policy
IB - all Scottish NHS
JR when were you next contacted
IB - I was contacted when I was on annual leave for Christmas

JR - when did you go on leave
IB - I think it was 24 Dec
JR - when did you return from leave -
IB - 3 Jan
JR - you got a Datix and the email from KS when you got back from holiday, not while on holiday, was that the doc you rec'd.
IB - that's not what I received, I just get 2

lines and a link to click to read the datix.
JR - what did you think of it
IB - it seemed like an unpleasant incident
JR - email from KS; just after midnight on 30 December, in your inbox along with the Datix when you returned from leave

what did you make of it
IB - I'm not sure if I saw that email before I saw the Datix, but I thought it would be worth a chat to see if they needed any advice
JR - what did you suggest was the next step
IB - I wanted to have a chat with her about the next steps for moving forward

JR - next email from KS to you, suggests a chat, did you have a chat that day
IB - I feel like I maybe spoke to her on the desk phone, to agree if I would pop down to ED, but something came up and I never managed to get down there
JR - your email says you didn't pop down,

chaotic Monday, you suggest Teams call, but she was off the next day she says
IB - yes
JR - you reply, no worries, refer her to the draft trans policy
IB - it was the patient policy
JR - did you speak to her around this time
IB - I don't think I spoke to her around this time

I sent her the consultation around the patient policy, it would be helpful for her in ED
JR - what the process for a Datix, how were you copied
IB - it's an automated system, depends on what people tick on the form who it's directed to, protected characteristics and interpreters

would come to me.
JR - what happened next
IB - it's not standard for me to get involved just because I'm copied on a Datix, but did speak with Maggie and ED.
JR - what did you say to ED
IB - that from what I read it seemed like an unpleasant incident and I suggested they get

advice from HR. I don't recall what else was said to me. They may have already done that, my advice was reiterating what they had already thought was the right thing.
JR - what did you say it might discriminatory
IB - from the Datix, it sounded like comments about trans status

and it was flagged by the person who wrote it as a hate incident, suggests discriminatory
JR - we have a copy of the Datix, you've mentioned there were comments about persons trans status, what do you read there
IB - says on Nurse A's comments about Drs trans status, chromosomes

ref to convicted rapist.
JR - and what about the following para
IB - suggests Dr tried to end convo, seek mediation, but Nurse would not accept that
JR - what about escalation of behaviours mentioned
IB - it says an escalation of prior behaviours

reported so that it could be investigated.
JR - you spoke to ED & Maggie, what did you say
IB - hard for me to recall exactly what was said but in general a troubling incident
<missed a q & a>
JR - referring to coverage on GB News, elsewhere, what was that

IB - said that a nurse had complained about a trans doctor
JR - what was your involvement
IB - there was a request for comment, I was not in, but when I came in I could see that there were a number of articles
JR - you mentioned a meeting, who attended

IB - I can't recall specifically (mentions a number of names)
JR - what happened at that meeting
IB - I was called in half way through the meeting, I was asked about what support we had offered to the dr concerned
JR - what about the 2nd meeting?

IB - it was few days later
JR - same people invited?
IB - but not everyone could attend because of short notice
JR - did you make any contribution to the 2nd meeting?
IB - I mentioned that GC beliefs needed to be respected , but that NHS staff need to act with care and

compassion
JR - what happened next after these 2 meetings
IB - the only other involvement I had was in a short lived working group to consider if we should develop our own policy or wait for OfS policy
JR - an email, action list, progressing a policy is that what you ref'd to

IB - that's not the working group
JR - what's that about
IB - it's about the patient policy
JR - what are you saying in email
IB - that it was about patient policy, I had input from Janet, and would circulate for wider comment, mentioned that we were waiting for OfS policy

JR - any further involvement in these matters
IB - only working group
JR - who were in working group
IB - <a number of names, not all complete>
JR - what did the group do
IB - it was about scoping, could we have a single policy on trans issues, I'd been looking at the patient

policy.
JR - what happened next
IB - they were going to search for other policies, I believe that's when these other policies were obtained
JR - and what happened
IB - we decided that it was a rapidly evolving area and climate, and the OfS policy was coming soon

JR - was that policy ever soft launched
IB - it was used informally, we did not adopt because we were navigating the balance of rights in our circumstances
JR - was it confirmed
IB - it was confirmed only for purposes of soft launch.
JR - subsequently confirmed?

IB - it was subsequently not confirmed because of this tribunal, it has been withdrawn for now.
JR - no more questions
J - NC, do you want to take lunch now or start your x-exam?
NC - stenographers have been going for more than an hour, they are do a break, lets take lunch.

J - that's fine, back at 1:20.
Court rises, end of morning session.

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