The documents outline NHS Fife’s account of events surrounding the employment tribunal and seek to reassure ministers that the board acted appropriately throughout.
In them, the board suggest Ms Peggie’s “personal circumstances” may have “contributed to the incident” and that the nurse should have had the “skills and knowledge to de-escalate or remove herself from this situation”.
They also insist the space at the centre of the row was a “locker room and not a designated changing room”.
Despite clearing her of misconduct, they raise the prospect of involving the Nursing and Midwifery Council (NMC), Ms Peggie’s professional regulator.
Ms Peggie, an A&E nurse, is suing her employer and Dr Beth Upton after she was suspended for objecting to the transgender medic’s use of the room at Victoria Hospital in Kirkcaldy on Christmas Eve 2023.
The words exchanged in the incident are disputed. In her evidence to the tribunal, Ms Peggie said she told Dr Upton that he was a man and should not be in the female changing room. She said she was “trying to give [Dr Upton] an example of how I and other women feel”.
According to Dr Upton’s testimony, Ms Peggie said: “This was the women’s changing room and she told me that it was inappropriate for me to be in there.”
Dr Upton told the tribunal the exchange left them feeling “really, really upset”.
Ms Peggie claims she faced discrimination and harassment as a result of having to share female changing facilities with a male colleague.
NHS Fife argues that while Ms Peggie is entitled to her belief that Dr Upton is male, the way in which she confronted her colleague was unreasonable in a workplace setting, and that it was therefore reasonable she was suspended and investigated.
The briefings released to The Herald date from June and July, before and after the publication of the panel report that cleared Ms Peggie.
One document states the panel investigating the complaint felt “more could have been done to resolve the initial concerns that [Ms Peggie] raised in August 2023 and that there was a missed opportunity to explore resolution prior to the incident on 24/25 December 2023”.
It also says the panel “took cognisance of the personal circumstances [Ms Peggie] was experiencing and which caused her distress on 24/25 December and believe that this may have contributed to the incident”.
null (Image: PA)
Ministers were told that while the panel “found that there is no conclusive evidence to support the allegations, they were satisfied that this interaction between [Ms Peggie] and Dr Upton caused Dr Upton visible distress and impacted on her wellbeing”.
They also said Ms Peggie should have had the “skills and knowledge to de-escalate or remove herself from this situation”.
“Thus, the panel will arrange for [Ms Peggie] to undertake a facilitated reflective practice discussion to consider her decision making in relation to this incident. This will be supported by a professional nurse adviser and should be recorded for submission as part of her next NMC revalidation.”
Revalidation is a mandatory three-year process required by the NMC to maintain a nurse’s licence to practise. Linking the incident with Dr Upton to her revalidation documentation could potentially influence how future employers or regulators view her conduct.
The briefing adds that Ms Peggie was asked to “reflect on other ways that her concerns could have been escalated and resolved, such as via HR policies and procedures and line management or professional escalation”.
That is despite Ms Peggie raising concerns about Dr Upton’s use of the female changing room with her line managers on multiple occasions before the confrontation on Christmas Eve.
The board also told ministers that although the disciplinary panel “did not issue a formal disciplinary sanction”, it did “acknowledge wrongdoing and asked for steps to be followed by [Ms Peggie] as she returns to work”.
On the room itself, NHS Fife told the government: “It is important to note that the ‘changing facilities’ at the centre of the current employment tribunal is a locker room and not a designated changing room.
“Custom and practice in the department is such that the room is referred to as a changing facility.
“In addition to lockers, the room contains a toilet cubicle.”
The board also shared details of the support offered to Dr Upton and Ms Peggie. Both have a “designated manager for ongoing wellbeing support” and “regular contact is maintained”.
They also stated that an occupational health referral had been offered.
The briefing further touches on the question of a settlement to Ms Peggie.
The board told the Scottish Government: “Settlement discussions are conducted on a ‘without prejudice’ basis. This is an important legal protection applicable to such negotiations and encourages open and honest dialogue in an attempt to resolve a dispute, safe in the knowledge that such discussions are not disclosable.
“There could be significant implications associated with betraying the confidential nature of such discussions — not least that it would then discourage settlement discussions across NHS disputes if it was felt that NHS bodies may publicly disclose a claimant’s position regarding settlement. As such, we are not in a position to comment further.”
Ms Peggie’s solicitor, Margaret Gribbon, said the disclosure to The Herald was concerning.
“Our client was concerned to learn about these disclosures and has asked me to write to Fife Health Board asking them to explain why they have divulged her personal data to third parties without her consent and with no redactions,” Ms Gribbon said.
“She will consider next steps with her legal team once that explanation has been provided.”
NHS Fife has been approached for comment.
While the Scottish Government has long said it would be inappropriate to comment on the tribunal while proceedings are ongoing, ministers have been clear they have confidence in the board.
Earlier this month, the Courier reported legal costs in the ongoing tribunal had reached £320,000, rising by £60,000 in a single month. Labour’s Dame Jackie Baillie told Holyrood the final bill could reach £1 million, not including compensation.
Ms Peggie has also lodged further legal claims against NHS Fife over the actions of three senior staff who opposed a decision by another manager to lift her suspension in March 2024.
NHS Fife is a member of the Clinical Negligence and Other Risks Indemnity Scheme (CNORIS), a national pooling arrangement that caps the board’s direct liability at £25,000, with the remainder met centrally through the Scottish Government’s Health and Social Care Directorate.