A nurse manager has told an employment tribunal she felt it was “the best decision at the time” to suspend an emergency department nurse to ensure patient safety.
Nurse Sandie Peggie took NHS Fife and Dr Beth Upton to tribunal after she was suspended over an incident in the female changing room in Victoria Hospital, Kirkcaldy.
Ms Peggie objected to having to share the changing room with Dr Upton – a trans woman – and claims her treatment amounted to unlawful harassment under the Equality Act.
Clinical nurse manager Esther Davidson told the tribunal the decision to suspend Ms Peggie was “to protect both Sandie, Beth and the patients”.
Ms Davidson said: “The suspension was put in place to give us time to commence the investigation and to work out a solution.
“I felt at the time it was the best decision.”
Ms Davidson initially led an investigation after Dr Upton made a complaint of bullying and harassment against Ms Peggie but was removed two months later after it was recognised she should be a witness in the tribunal.
Ms Davidson was not Ms Peggie’s direct line manager, however, she oversaw complaints in the department. The two had worked together for 30 years.
Ms Peggie’s lawyer Naomi Cunningham quizzed the nurse manager on the reason for Ms Peggie’s suspension.
“I felt they were at risk of further interaction and perhaps unprofessional behaviour,” she said.
Ms Davidson said that Dr Upton’s allegation that Ms Peggie would leave the resuscitation area when the medic came in “was a patient safety issue”.
The nurse manager said the decision to suspend an emergency department nurse, in what was a “pressed” department was not an easy one.
She said she had reiterated to colleagues that “suspension is a last resort and not a first.”
Ms Davidson confirmed that she had not attempted to set up mediation between the two medics, but believed a “professional conversation” could have taken place.
Ms Peggie’s lawyer suggested that a “much less drastic and economical” option would have been to change the medic’s rotas to ensure they were not on shift together, and to ask Dr Upton to get changed in a single-occupancy changing room.
Ms Davidson said this was not an option due to the shifts being worked out six weeks in advance.
She had also been advised by NHS Fife’s equality and diversity department she was “not permitted to exclude transgender females from the changing rooms”.
Naomi Cunningham put it to Ms Davidson that the suspension documents refer to a bullying and harassment complaint, but make no mention of patient safety concerns.
Ms Davidson said the Christmas eve changing room incident had been the reason for the complaint, and allegations of Ms Peggie ignoring Dr Upton while discussing a patient were brought up during the investigation.
The lawyer put it to Esther Davidson that if the allegations about patient safety concerns were true then it was “seriously remiss” of Dr Upton not to have reported them at the time.
She replied she would have expected the doctor to report it to the clinical supervisor, but that Dr Upton had stayed in the cubicle and that at that point there was no detriment to the patient.
‘What the policy states’
Ms Cunningham put it to Ms Davidson that NHS Fife’s policy that “gender trumps sex” had a “vice like grip” on the health board and that Beth Upton’s right to use the changing room could not be challenged.
“You know it’s terrible trouble for anyone who admits that men can’t be women and women can’t be men” Ms Cunningham said, adding: “You’ve seen the trouble Sandie is in.”
“That’s why we see you saying what you’re supposed to say. You’re frightened,” she added.
“I’m certainly not frightened,” Ms Davidson replied.
She continued: “I’m not saying what I’m supposed to say, I’m saying what I think and what I believe.
“Personally for me you should treat people as individuals, regardless of their sex or sexual orientation.
“We should treat people as the sex they stipulate they are – that’s what the policy states.”
The hearing, which had originally been expected to have already concluded, has now been adjourned until July.
This is due to questioning of witnesses taking longer than anticipated, and the judge and lawyers’ availability.
Ms Peggie’s legal team intends to request a forensic examination of Dr Upton’s phone, regarding notes, and an application has been submitted to have consultant Dr Kate Searle, Beth Upton’s line manager, added as a respondent.
It will resume again on 16 July and is expected to last a further 11 days.
