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Couldn't help thinking of the Met case earlier when reading this below, which is a big news story in Scotland just now

But basically it's an employment tribunal going on relating to the trans thing, and an NHS Fife nursing is suing the health board over a biologically male doctor who's using the women's changing rooms etc

Anyway, while the tribunal process is ongoing, NHS Fife have decided to instigate an internal disciplinary tribunal against the nurse this Friday, which this legal expert is saying is a 'staggering' prejudgement, and unlawful breach of legal rules around 'natural justice' and 'procedural unfairness'.

Not sure I'm really getting my head round the nitty gritty of it all, and haven't been following it closely. But whatever the details, and as the Met case demonstrates, it's all about getting the proper procedures and the like absolutely bang on. Otherwise, it can be claimed in court that due process and natural justice principles have been breached etc, and that can collapse the whole thing.

And an excellent example of that was the Alex Salmond case, who before the criminal prosecution was subject to an internal Scottish Government disciplinary process. Can't recall the precise details, but I think the investigator involved had 'prior contact' with the one or more of the complainants, and to that extent was deemed to have prejudiced the whole process. Salmond sued in the civil courts, and was successful, as the process had been 'tainted by unfairness and apparent bias', I think the phrase was.


Extraordinary threat to sack gender critical nurse exposes flagrant breach of natural justice

By Michael Foran

In an explosive revelation, we have learnt that NHS Fife is holding an internal conduct hearing this week to determine whether or not Sandie Peggie committed alleged acts of harassment that NHS Fife have already argued she is guilty of in open court.

Ms Peggie, a nurse of 30 years, is suing Dr Beth Upton and NHS Fife for unlawful harassment and discrimination arising from a policy of allowing Dr Upton, who is male but identified as a woman, to use the female changing rooms. When Ms Peggie raised her discomfort over this with her managers, she was told that Dr Upton had a right to use the female-only changing rooms. This is not true as a matter of law and is directly in breach of the Workplace (Health, Safety, and Wellbeing) Regulations 1992.

The situation came to a head on Christmas Eve 2023 when Ms Peggie, having experienced a heavy menstrual flood, rushed to the female changing room to find Dr Upton present. At this point, Ms Peggie told Dr Upton of her discomfort, stressing that Upton had no right to use the female changing room because he was a man.

Shortly after this, Ms Peggie was suspended pending investigation into allegations of bullying and harassment against Dr Upton. Months later, Ms Peggie was informed that she was also being investigated for alleged incidents of threats to patient safety raised by Dr Upton. Ms Peggie denies these allegations and has argued that Dr Upton fabricated them to bolster the complaint about her.

Ms Peggie is suing Dr Upton for harassment and NHS Fife for unlawfully allowing Dr Upton to use the female changing room and for unlawfully discriminating against her in the course of the misconduct investigation.

It has now been revealed that NHS Fife is pushing forward with its internal disciplinary process. It cannot be underestimated how shocking this is from a legal perspective. If there is an ongoing disciplinary process, it would be a flagrant breach of natural justice and of Ms Peggie’s right to procedural fairness for NHS Fife to pre-judge that process. Yet despite officially having come to no conclusion as to allegations that Ms Peggie harassed Dr Upton, this is exactly what counsel for NHS Fife is arguing in defence of the lawsuit that Ms Peggie has brought.

Ms Peggie was already suing NHS Fife for, among other things, how the beginning of this internal investigation played out, as well as the significant delay leading to the process remaining unfinished more than a year on. It was entirely open for NHS Fife to defend against the claims brought by Ms Peggie without committing to the position that she is guilty of the very thing yet to be determined.

Prejudging a disciplinary process

But Jane Russell, counsel for both NHS Fife and Dr Upton, has argued both in written submissions and in open court that “the inconvenient truth here is that the only real harassment that has occurred in this case was perpetrated by (Ms Peggie) against (Dr Upton)”. That is the official legal position of NHS Fife, prejudging an ongoing disciplinary process.

It is unclear at this stage how this will all play out, but the allegations made by Dr Upton against Ms Peggie are serious. The allegation that Ms Peggie was so bigoted against Dr Upton that she walked out on vulnerable patients in need of care, if determined to be true, could result in Ms Peggie being fired, or even struck off the nursing register. The idea that NHS Fife could argue in open court that Ms Peggie is guilty of this, before completing the internal process, is extraordinary. This was not necessary to defend against the lawsuit that Ms Peggie brought.

Given the choice to frame the legal defence in this way, it is no surprise that NHS Fife now faces further litigation from Ms Peggie arising from what appears to be a clearly unlawful breach of the legal rules around natural justice and procedural fairness. The choice to defend the initial litigation by prejudging an ongoing disciplinary process is staggering.

Michael Foran is a lecturer in public law at the University of Glasgow