In the much-publicised case of Sandie Peggie v Fife Health Board and Dr Beth Upton, the Scottish employment tribunal found in favour of the claimant nurse on four specific allegations against her NHS employer; but it also made some surprising and noteworthy findings relating to the accommodation of transgender staff in single-sex spaces, which potentially muddy the already turbulent waters in that area.
The tribunal’s decision in this case, which was in and out of hearings since February 2025, was published on 08 December 2025. Quite apart from the substantive content, the judgement invoked an intense media furore over multiple errors and mis-quotes, which sparked speculation that the 300+ page document had been generated by AI; and led to calls for the judgment to be withdrawn.
Whilst the status of the judgment remains in doubt, what is clear is Ms Peggie’s intention to appeal those aspects of the case which were not found in her favour.
Factual background
During a shift change-over on Christmas Eve 2023, Nurse Peggie expressed her objection to the presence of Dr Upton, a transwoman, in the female changing rooms at their mutual place of work in Victoria Hospital. Dr Upton subsequently raised a grievance about Nurse Peggie’s comments during this exchange; and Nurse Peggie was later suspended whilst a disciplinary investigation and proceedings ensued.
Ultimately, the investigation found the evidence against Nurse Peggie was inconclusive or insufficient for disciplinary action to be pursued; instead, the Trust took a restorative approach requiring her to undertake facilitated reflective practice.
The Proceedings and noteworthy findings
Nurse Peggie brought various claims of discrimination and harassment against both her employer (the Trust) and Dr Upton. Her complaints mainly centred around the changing room situation and the Trust’s handling of her complaints about this and the incident(s) which then arose, including the incident with Dr Upton on Christmas Eve; and the handling of the investigation and suspension processes thereafter.
The hearing of the case took place in February and July 2025, thus straddling the Supreme Court decision in the case of For Women Scotland v The Scottish Ministers (FWS) decision in April 2025.
Four of Nurse Peggie’s specific claims against the Trust succeeded, chief amongst which was the failure to revoke Dr Upton's permission to use the female changing facilities until another 'workaround' [our word] was found once Nurse Peggie had raised her concerns about sharing that single sex space.
In its findings on this issue, it seems the tribunal considered that once Nurse Peggie and Dr Upton were rostered not to work together, Dr Upton could have gone back to the female changing rooms. This potentially infers that it can be acceptable for employers to provide non-single sex spaces (by allowing trans people to access facilities assigned for their identified gender) unless / until an issue arises such as a complaint about that arrangement. The tribunal stated that other factors are also relevant, but the earlier complaints from Nurse Peggie seem to have been the key factor in her success on this point in this case.
Comment: This approach seems to us to be akin to the ‘case by case’ scenario which the Supreme Court rejected in the FWS case; and leads us to expect the forthcoming appeal will include this issue.
No claims directly against Dr Upton were upheld, including the claim that Dr Upton harassed Nurse Peggie on the ground of her sex by his presence or actions in the changing room on the day in question.
Whilst it was accepted that Nurse Peggie’s gender critical beliefs were protected under the Equality Act, the manifestation of her belief - i.e. the nature of the remarks she made against Dr Upton when challenging them in the changing room and the way she delivered them - was 'impermissible'. The judgement’s description of the challenges Nurse Peggie made towards Dr Upton included: … the comment that the second respondent was a man not a woman and could not use the changing room, the question as to chromosomes, and what was taken by the second respondent to be a comparison with a rapist….
The tribunal concluded that Nurse Peggie’s behaviour amounted to harassment and Dr Upton was entitled to view the incident as a ‘hate incident’ as per his grievance.
Comment
Whilst the case is set for further judicial scrutiny in the EAT (and beyond?), what will not change is the critical importance for all employers of managing competing or incompatible protected characteristics and beliefs equitably and with an emphasis on ensuring all parties manifest their beliefs appropriately.
See our previous Insights on the leading ‘manifestation of belief’ cases of Maya Forstater v CDG Europe EAT 2020 and Higgs v Farmor’s School CoA
For guidance on dealing with cases relating to sex and gender, please contact our expert employment law solicitors.
