Equality and diversity staff said a trans doctor had the ‘right’ to use the female changing room despite a nurse flagging her concerns.
Dr Beth Upton, who has lived as a woman for more than two years, was told she could use the female changing room at work when she first started there in August 2023.
But nurse Sandie Peggie raised her concern with bosses about the arrangement, and told how she felt ‘uncomfortable’ with the medic using the women’s-only room at Victoria Hospital in Kirkcaldy, Fife.
However, despite the concern, an employment tribunal heard yesterday that Dr Upton had the ‘right’ to use the room because she ‘identified as a woman’.
Mrs Peggie is locked in a bitter employment tribunal with NHS Fife and Dr Upton, and has said being made to get changed next to the female-identifying doctor amounts to harassment under the Equality Act.
In 2023 there had been three occasions in which Mrs Peggie encountered Dr Upton in the women’s changing room.
In August and October Mrs Peggie had waited outside the room in the hospital’s A&E for Dr Upton to leave, but on Christmas Eve that year the nurse challenged the medic’s use of the facility.
Following this Dr Upton made an allegation of bulling against Mrs Peggie and she was suspended shortly after.
The nurse’s line manager Esther Davidson yesterday gave evidence during the ninth day of the tribunal before employment judge Sandy Kemp.
Towards the end of August 2023 Mrs Peggie had a conversation with Ms Davidson, the tribunal heard, and she told her about Dr Upton using the female changing room.
She said: ‘Sandie advised me she felt uncomfortable with that. I didn’t know what the trust take on transgender use of the changing room was, so I told Sandie I would look into it.’
Ms Davidson said she ‘felt empathetic’ and did ‘not want people feeling uncomfortable’.
The same morning Mrs Peggie had revealed her concerns, Ms Davidson approached Isla Bumba who was the equality and human rights lead at NHS Fife.
Ms Davidson said: ‘I explained that a female member of staff was uncomfortable because we had a transgender woman working in the department and she felt uncomfortable changing in the changing room.’
The equalities worker was asked about what the health board’s policies were, and Ms Davidson said: ‘Isla advised me Beth had a right to use the female changing room as she was a transgender woman and identified as a woman..’
When Ms Davidson told her fellow nurse about what Ms Bumba said, and there was nothing which would ‘support me being able to exclude Beth from the changing room’, Mrs Peggie was ‘upset’.
Ms Davidson told the tribunal she made suggestion of alternative areas to change in.
Others in the department were not told about Dr Upton being trans, or her use of the female changing room, and Ms Davidson said staff had ‘accepted Beth as female’.
She told the tribunal: ‘I just feel we should not single people out. We are meant to be respectful of people’s beliefs, cultural beliefs and sexual orientation, I didn’t feel there was any need.
‘I also didn’t want Beth to feel unwelcome to the department either.’
Following the Christmas Eve 2023 incident Dr Upton had sent an email to a doctor she had confided in.
Mrs Peggie’s barrister Naomi Cunningham put to Ms Davidson’s the doctor’s previous evidence about seeking support that night by going through the emergency department to an office.
Ms Davidson described it as a ‘straight route’ and told the tribunal: ‘You wouldn’t go through the department, you would go through the observation ward.’
She told the tribunal: ‘I’d expect the senior charge nurse to be made aware there had been an incident, but she didn’t know.’
After the Christmas Eve incident, Dr Upton said there were two incidents she was aware of when Mrs Peggie could have jeopardised patient safety.
These are denied by Mrs Peggie, and Ms Cunningham put it to the nurse that if they had been ‘stood up Sandie would be looking at dismissal for gross misconduct at the end of her 30 year career and being struck off the register’.
Ms Dixon said while that was a matter for the Nursing and Midwifery Council regulator it was ‘a possibility’.
Ms Davidson is set to continue giving evidence today (FRI), and the tribunal continues.