Thread by @tribunaltweets

We expect the afternoon session of day 10 of nurse Sandie Peggie v Fife Health Board and Dr Upton from 2pm or soon after.

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

Background on the case, press and previous coverage can all be found on our Substack here: open.substack.com/pub/tribunaltw…

The case will go 'part heard' at the end of today's final scheduled day. Proceedings are likely to be suspended until July.
Esther Davidson will potentially have questions from the judge and then possibly re-examination by Jane Russell for the Rs.

No further witnesses will be called today, the Judge is likely to be hearing applications from both parties after the conclusion of ED's evidence.
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The employment judge has given specific directions to witnesses called by the parties to not read our, or any other coverage before giving evidence:

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.

IX - investigation
CX or FC - (formal) complaint
DX - disciplinary
FtP - fitness to practice
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
D - Datix

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 are waiting for the Judge and Panel to return.

Judge and Panel return.
P2 - you mentioned support on return to work, can I understand more about that
ED - it's occupational health and its to assess if able to return to work, to make sure that they are fit to return to work to the same work.
P2 =- in this circumstance

I had understood its to make sure SP is fit to participate in IX.
ED - missed. They usually do 2 things, they have telephone convo, prior to Covid it was face to face and then it's a follow up.
P2- you mentioned grades, you thought is should be grade 7 or 8, can you explain

ED - all reg nurses are band 5, charge nurses are band 6, senior charge nurses are band 7, 8, I am band 8.
P2 - the two senior charge nurses are both band 7
ED - yes, band 7
P2 - do doctors fall into this system
ED - describes categories of doctors, too quick to catch details

P2 - so KS would be a consultant
ED - yes
P2 - after your phone call why did you go on to look at policies
ED - it's not that I doubted I just wanted more information
P2 - after DU started had convo with KS, checking okay to use F CR. were you aware of that

ED - no I was not aware, I was told by another consultant that was the case
P2 - DU had been in dept previously, what were the circumstances around that
ED - we are ED we have to refer patients to specialists, there's a lot of mental health issues at the moment and DU was in and

out of the dept as a visiting doctor
P2 - when you told C that DU could use f CR, SP said 'if I see Beth again I'll have to say something' what do remember
ED - my recollection is that the convo ended without that being said, I offered solutions
P2 - any memory of

'if I see Beth again I'll have to say something'
ED - no
P2 - is the CR officially in the basement but everyone uses the lockerroom
ED - confirms,
P2 - what facilities are in the basement
ED - I have not used them since the 90s, quite large though

P1 - can you explain floor coordinator to me
ED - a nurse takes responsibility for the coordination of the dept, responsible to help ensure decisions are made, communicating to the coord team, things that have to happen for the patient, and also the redeployment of staff

if an area was under pressure
P1 - is it managerial
ED - it's just a nurse in charge, there are several areas to the dept, resus, minors, majors, peds. It's quite a large department
P1 - advice from IB in August, you hadn't had a chance to speak to C until October had you

considered letting other charge nurses know? And asking them to tell SP.
ED - I did pass it on, they totally did know, I think SP knew but I wanted to speak to her myself
P1 - now discussing Michelle HR person who was off sick on 15 Jan, and replaced by Anne Hamilton.

ED - yes
J - page 58, please. Confirming dates that convo with IB was at the end of August.
ED - best of my recollection
J - what about Maggie Curran convo re SP being uncomfortable
ED - I think I spoke to MC immediately after speaking with IB who told me the same thing

J - did MC speak with DU
ED - I don't know
J - your evidence is that DU has a right to use the CRs as you heard from IB
ED - yes, that's what I understood. The understanding that I took from that is that transgender female is entitled to use the female CR.

J - when you spoke to SP, were you simply passing on a decision that had been made or were you part of the decisions
ED - I thought the decision had been made
J - and who do you think made that decision
ED - consultants and IB
J - what did you understand SP

to be doing; raising a grievance, a complaint or an informal enquiry
ED - I understood that SP was asking me to see if that could be changed
J - what was it
ED - it was raising an issue
J - how serious was the issue
ED - I didn't think there was a high possibility of that

happening given shift patterns. I felt that was SPs feelings and I respected that but I took advice from E&D and that was the policy.
J - did you take any notes of those discussion
ED - no
J - when you had the second chat with SP in late October, did you make a note

ED - no I did not
J - lawyers love bits of paper, how easy is it for you to take time to make a note
ED - my day is extremely busy, I'm responsible for all of the ED, I get lots of emails, I have lots of Teams meetings, I often don't open email until my tea break so not easy.

J - you found out SP was involved on 31st of Jan, was that from Louise?
ED - yes that's correct, there was an email from Kate, and a phone call from Louise
J - had you seen the Datix
ED - I can't say when I saw that
J - what advice did you get from Gillian Malone, and ?

ED - there were two aspects to the complaint, the changing room incident and patient safety angle, we were looking for solutions
J - what did GM say
ED - she said if it could compromise patient care, that would justify suspension
J - 2 factors to your decision, now notes of

meeting with AG. Are these notes reasonably accurate
ED - AG sent them, I read through them, I had thought they are fairly accurate
J - Q5, spoke to IB, looked at policy, discussed with consultant colleague - who -
ED - Kate Searle
J - had anyone else come to me, I would have

had to do something, why if another person had come forward would you need to do something
ED - I was thinking that many people might have come forward and been uncomfortable we would need to look for another solution
J - now the formal complaint

J - difficult q, do you remember when you saw for the first time
ED - honestly I can't
J - as of 3 Jan all you have seen is hate incident, can you give us a rough date
ED - I'm sorry I can't
J - page 778, do you remember when this was first prepared,

ED - shortly after 3 Jan, I had been speaking with Michelle, and we started working on this so it must have been between 3 and 15 Jan
J - it says from 3 Jan, so was that prospective or retrospective
ED - it was retrospective.
J - now policy on responding to hate incidents

J - is that the right one
ED - yes
J - is that the one you were looking at in late August
ED - no, not at that point, I looked at it after the incident in the changing room
J - terms of reference, who gave those to you
ED - I don't understand

J - did anyone come to you and say 'this is what you are investigating'
ED - no, I was investigating the allegations
J - how were you told to stop the IX
ED - GM told me because I would be called as a witness
J - once AG was appointed, did you have a handover

ED - yes, she came down to my office, I gave her copies of the policies, and everything I had.
J - at that point you would have had 2 docs, from DU and KS
ED - missed the answer

J - no more qs.
JR - you mentioned one complaint from junior staff member can you describe that
ED - a junior staff, who thought that SP was nitpicking and finding errors, she felt she was pushed to it and called her something not very nice, I had to speak with the junior staff

JR - second encounter between DU and SP, did you have any info about their state of dress or undress
ED - no
JR - you mentioned 'fairness' in telling the staff about the permission to use the CRs, what did you mean
ED - that all staff could have the same information

JR - when you spoke with IB, were you specific about who it was or how did you describe them
ED - when I spoke with IB I said I had a TW doctor who was using the female CR, I didn't use names, I asked about the policy and said I had a nurse who was uncomfortable

JR - when did you see formal complaint? Reading out email that refers to attached, is that the same document
ED - yes, and it's dated 7 june
JR - does that assist you with when you saw this doc
ED - I have no recollection of that, it's not the same as the doc DU sent

JR - you say ED is flat, alleged you are afraid of certain consultants, what would you do if there was inappropriate behaviour
ED - I would see the appropriate person in the structure to complain
JR - how would you feel about having a difficult convo at work

ED - I have difficult convos at work all the time
JR - who really runs the A&E
ED - we work as a team, the consultants sometimes say I'm their boss, but that's not true
JR - what are the consequences on patient care when two people have difficulty working together

ED - communication is very important in caring for patients, we wouldn't want an outburst or confrontation when caring for patients
JR - length of suspension, how much leave did SP have in March
ED - 2 weeks
JR - how long does it take for rosters,
ED - 6 weeks
JR - when did

DU go to anaesthetics
ED - I would have to check with the consultants
(missed a q&a)
JR - did you have any concerns other than the roster in bringing SP back to work
ED - she had been off work for some time, I was concerned
JR - SP's reaction to dept move?

ED - she absolutely did not want to do that
JR - now in Datix, 'escalation of behaviour' it was put to you that this is a reference to patient safety issue
ED - I think it's referring to the child who left without being seen, and SP wouldn't speak to DU
JR - email from GM

'supported back to work on day shift' where did that come from
ED - it was felt she would be shielded from difficulty and supported by time on day shifts, and then return to her normal roster
JR - DU's account of CR incident, 'she asked me about my chromosomes'

Did you see that?
ED - yes
JR - it was put to you that DU only objected to SP's view that DU was not a women but also compared DU to that man in prison, what did you take from that
ED - comparing DU to the rapist.
JR - no more questions, releases ED

J - before applications, can we talk about dates
JR - I think we need 10 days given how long NC took with various witnesses
J - do we have a timetable
NC - we are expecting additional docs, quite a large volume,
J - can I get timetables from both sides

NC - I can't do that until I get full compliance with Judge Tinions 3 jan order, it's impossible to do. My cross exam of KS, who has emerged as a key player, will be considerably longer. She wasn't on the original witness list.
J - can I go back to the first q,

NC - takes instruction, we will not oppose 10 days,
JR - now discussing witness availability, proposing starting on 16 July.
<p2 leaves room for diary>
Panel consulting
J - That seems to work for everyone, we will start on 16th. So that means 28th last day of evidence and

2 days of evidence.
J - now discussing dates, agreeing 11 days.
J - at the moment I have one application, to vary Judge Tinnion's order of 3 Jan, do I have any other applications
NC - we applied to add Kate Searle,
JR - I haven't seen it
J - will need to take instruction

NC - Also, applied to vary Judge Tinnions order to make it more specific, and we have applied for a forensic examination of 2R's phone.
J - would be good if we could do this via video, I better go get my diary, (checking his diary) 24-26 March is available
<back and forth>

<more back and forth on dates>
J - back to the 14th of April.
NC - if we are granted our amendment, the R will be given 28 days, that's leaving it too late, in the circumstances can we deal with this in writing,

J - its difficult if we have questions but let's go ahead with in person.
NC - we need some time, 7 days please for reasoning
J - do you need to expand your reasons JR
JR - yes
J - each side has 7 days to expand and complete their reasons, then 14 days to respond, that takes us

into April, should we fix a date for oral submissions, how about 14 April, solicitor not available
15 April then.
J - now working back from 16th july, by 2nd July can the parties send an agreed timetable or their version of the timetable
J - anything else

NC - I would like you to direct the Rs to produce any materials they find as they find it,
JR - you haven't ruled on my order to vary
J - the order stands until its varied, I won't need to make any additional comment and if there isn't compliance that can be explored as we go

forward.
J - anything else
JR - the witnesses ordered not to look at anything on the case, they can't really help that, they know they shouldn't seek it out,
J - common sense needs to rule.
We will break now then.
Get 15 April in the diary. In the event that other issues

arise, we could get other meetings in the diary, the sooner it is raised, the easier it is to deal with.
NC - just to be clear we will be back in Dundee.
J - yes.
Court rises.
Hearing is 'part heard'

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