A transgender doctor raised formal concerns about patient safety eight months after an incident involving a female nurse occurred but denied trying to get her struck off, an employment tribunal has heard. Nurse Sandie Peggie, who has worked at the Victoria Hospital in Kirkcaldy, Fife, for 30 years, took the Fife Health Board and Dr Beth Upton to tribunal after being suspended following an incident on Christmas Eve 2023 in the female changing rooms.
Ms Peggie, known as the claimant, lodged a complaint of sexual harassment or harassment related to a protected belief under Section 26 of the Equality Act 2010 regarding three incidents when they shared a changing room: indirect harassment, victimisation, and whistleblowing. That came after she was suspended in January 2024 following Dr Upton making an allegation of bullying and harassment. Dr Upton gave evidence on Wednesday at a tribunal in Dundee, and was asked by lawyer Naomi Cunningham, representing Ms Peggie, why contemporaneous notes-to-self by Dr Upton did not include an allegation around patient safety, raised internally on December 29, two months after the incident supposedly happened on October 31.
The allegation that Ms Peggie abandoned a patient in the resuscitation unit was raised in a formal complaint by Dr Upton’s solicitor on June 11 2024, however, Ms Cunningham said it was so serious it would have resulted in immediate suspension and gross misconduct. Five contemporaneous notes were cited but Ms Cunningham asked why the most “alarming” allegation, out of three incidents in the formal complaint, was omitted.
The tribunal heard Dr Upton’s line manager, Dr Kate Searle, said in a statement: “Beth has all the notes including the incident where the other person appeared to leave the room and stopped doing resus because Beth entered. Unfortunately she didn’t raise it at the time.”. Cross-examining Dr Upton, Ms Cunningham said: “Do you agree the resus incident is the most alarming of all three matters you raised?”.
Dr Upton said: “If we are taking purely about patient safety, someone refusing to communicate in resus is more serious”, and rejected that claim by Ms Cunningham that identity “flattens everything”. The doctor added: “If someone is dying or is seriously unwell and the paramedic calls me ‘sir’ I will take the handover. Patient safety is one of the most important things.”. Ms Cunningham said: “If the resus incident was true, what it means is Sandie Peggie is so bigoted because of your trans identity, she wasn’t prepared to put that aside. Even when you were working together to potentially save the life of a seriously sick patient.”.
Dr Upton said: “That is a potential consequence.”. Ms Cunningham said: “If that was true, she needed to be suspended at once on a charge of gross misconduct. If that was true, she would be a danger to patients and urgently needed to face fitness of practice proceedings.”. Dr Upton said: “For all I know she could have been called away to something more serious. My perception was this is someone who has decided not to share space with me. I need to speak to a senior about this.”.
The tribunal heard it was raised with Dr Searle on December 29 2023, but Dr Upton alleged it happened between October 25 and December 18, although in Ms Peggie’s evidence she dated it October 31. Ms Cunningham added: “You said it might have been misinterpreted, she might have been called away on an urgent task. That is an example of exactly why situations like this need to be investigated urgently.
“Was this a bigoted colleague who refused to work with you, in which case all hell should have broken loose? Or where something more urgent came up?”. Dr Upton said: “At the time I was thinking of it purely as communication issue. Now I would consider it a patient safety issue. If it was I should have raised it sooner.”. However, Ms Cunningham said it was an “obligation” to raise concerns “without delay” in the Nursing and Midwifery Council Code, and asked if there was an equivalent for the General Medical Council and branded it “inexplicable if true”.
She added: “If what you said was true, you had your own professional obligation to raise and escalate patient safety concerns.”. Dr Upton said it was not raised in a document sent on January 23 2024, as investigator Esther Davidson asked specifically for the incident on Christmas Eve. Ms Cunningham said: “You are a doctor with professional obligations and already delayed bringing this to attention, it’s your own obligation to make sure the board is informed.”.
The doctor said that it was “my obligation to inform a senior”, the tribunal heard. Ms Cunningham said: “Given the gravity of this incident can you explain why (the) phone log doesn’t mention it?”. Dr Upton said: “At the time my appraisal was this person’s left without me knowing. My appraisal was the situation was safe, so didn’t need to be escalated. At that point I was considering it as a communication issue. That’s a failure on my side.”.
