Wings Over Scotland

Something very odd happened when the Sandie Peggie employment tribunal delivered its judgment – and it wasn’t just the made-up quotes and mangled law.

Call it institutional bias, ideological capture, or just the law doing its job, but what Employment Judge Sandy Kemp’s tribunal delivered was the most one-sided outcome since Butch and Sundance decided to come out shooting.

Every single member of the NHS Fife side was accepted as a credible witness. But Peggie and her team were cut down in a hail of negative conclusions. It seems worth spending a little time with the judgment to understand how this happened.

Peggie, a senior nurse, had been suspended for objecting to what the tribunal ruled was a male doctor, “Beth” Upton (who identifies as a woman) being in a changing room reserved for female staff.

Peggie won her claim of harassment against NHS Fife because, among other failings, they didn’t provide her with a single-sex changing room and because they made such a mess of trying to hang her out to dry for standing up for her rights.

On pretty much every other point the tribunal found against her. At the heart of it all was a simple question: who, out of a middle-class doctor and a working-class nurse, was most credible? It was definitely the doctor, the thoroughly middle-class tribunal decided.

Peggie had tried complaining to managers about Upton’s use of the women’s changing rooms at the Victoria Hospital in Fife but they just fobbed her off and told her to change in the toilets if she didn’t like it.

Matters came to a head on Christmas Eve 2023 when Peggie found Upton once again in the female changing rooms. She told him it was inappropriate. He stood his ground.

At this point, recollections vary. Peggie says she made her point in an encounter that lasted a couple of minutes. Upton says it was more like five or 10 minutes and she was very rude to him. The tribunal heard she reduced him to tears.

Many people would understand that Peggie was livid. She’d experienced heavy menstrual bleeding and gone to change only to find the man she’d complained about once again in the changing rooms.

The tribunal saw it differently. They thought she wanted a confrontation, a showdown. His evidence was so much better presented than hers. Upton was one of their own. Sure, he’d said some things that weren’t exactly true, but he was upset and it was ages ago.

He’d been terribly upset by the chippy little nurse. But he’d bravely managed to write everything down – which they liked – and when he talked to them, he did so in a way they approved of. They preferred his “demeanour”. So they believed what he said.

Peggie hadn’t made notes. Why would she? It was months before she got to present her version of events. Naturally there were inconsistencies. She missed some things out. The panel seized on this as a sign she was wrong.

Rarely in the judgment does she get the benefit of the doubt – though they do eventually acknowledge that she’d managed 30 years service without a sniff of trouble.

To understand the mountain they built for Peggie to climb the panel even criticised her barrister, Naomi Cunningham, for misgendering Upton so often that elsewhere it would have amounted to harassment.

And as for Maya Forstater – whose tribunal judgment they misquoted and whose victory ensured gender critical laws enshrined gender critical beliefs are now protected under the Equality Act 2010 – they dismissed her evidence as unreliable.

But what of the saintly NHS Fife staff? It should be enough to know that they considered the bumbling Isla Bumba a credible witness despite her telling them she didn’t know if she was a woman.

But of course there was much worse. Part of Upton’s account relied on “contemporaneous” notes he’d taken. Except, as en expert witness called by Peggie’s team demonstrated, he’d not written them when he said he did. They were altered.

This, the tribunal had to concede, was awkward. It raised questions. But the solution was simple. Brand the expert unreliable. He’d told them Upton was trying to mislead the tribunal so he was obviously not impartial.

As for Upton, he hadn’t perjured himself. He wasn’t lying. Yes, he’d not been accurate. But he’d been inaccurate honestly. He’d probably just forgotten. It was ages ago. This sort of forgetfulness was obviously different to Peggie’s. For some reason or other.

And then there was Upton’s friend Dr Kate Searle. She’d failed to maintain the confidentiality of the investigation, not least by emailing colleagues describing what happened as a hate incident. She’d called Peggie’s actions “completely unacceptable”.

The tribunal had to admit she probably wasn’t impartial, what with supporting him and representing him. But never mind. Unlike the expert witness, hers was the good sort of not impartial. They believed her.

And on and on it went. A doctor in a secretive “need to know” group told colleagues Peggie had been reported to the Nursing & Midwifery Council and admitted knowing that was untrue. She couldn’t explain why she’d said it. Yet the tribunal still considered her credible.

The tribunal doubtless believes that it acted fairly and was correct in its findings of fact, just as it doubtless believes it was right in law, despite the criticism it has faced from legal experts and those who question the accuracy of the quotations it cites.

And of course it is entirely possible that the panel weighed up every single bit of evidence and decided that the NHS Fife side were simply good and decent people who could not tell a lie and that Peggie was a wrong‘un. Only they know.

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Gethin Chamberlain is a photographer and journalist specialising in human rights and labour rights, published in The Observer, Sunday Telegraph, Guardian, Scotsman and more. You can follow him on Twitter or on his website and Substack, where the original longer version of this piece can be found.