Employment & Pensions Blog: Employment Tribunal clarifies the law around single sex spaces - Peggie v Fife Health & Dr Upton

Against a background of significant media attention and involvement from activist groups, the recently published judgment in the case of Peggie v Fife Health & Dr Upton provides welcome clarification for employers seeking to balance the rights of their transgender and gender critical employees following the Supreme Court judgment on this topic in April this year.  

Background

Ms Peggie was employed as a nurse in the A&E department of a hospital run by the NHS in Fife. Dr Upton was employed by the trust as a junior doctor and transitioned from male to female in 2022. Prior to starting her rotation in the A&E department, Dr Upton asked her manager which of the two employee changing rooms they should use and after checking with the policy was told the changing room reserved for female employees. 

Ms Peggie holds the gender critical belief that sex is immutable and she therefore considered and referred to Dr Upton as a man, expressing her discomfort with Dr Upton’s presence in the women’s changing room to colleagues before complaining to her manager where she was told that Dr Upton was acting with the Trust’s permission. This conflict came to a head on Christmas eve where Dr Upton went into the changing room with several female colleagues to get changed and when she emerged from the internal bathroom was confronted by Ms Peggie who told her that she was intimidated by Dr Upton, that a man cannot use the women’s changing room and escalating to comparing Dr Upton to “that person in the prisons”, referring to a trans rapist. 

Dr Upton then raised a complaint against Ms Peggie and the Trust suspended Ms Peggie for four months while they investigated, with the outcome of the disciplinary ordering Ms Peggie to undergo a reflective practice discussion and their shift patterns going forward were arranged so the two would not interact. 

Employment Tribunal (ET) Claim

In May 2024 Ms Peggie lodged an Employment Tribunal claim against both the Trust and Dr Upton, alleging she was discriminated against because of her sex and gender critical beliefs, harassed because of her sex and gender critical beliefs, sexually harassed by Dr Upton, and victimised for raising concerns about Dr Upton. 

Of these claims, the ET rejected the suggestion that Dr Upton could be personally liable for harassing Ms Peggie on the basis that she was acting within permission and there was no evidence of a sexual element to her use of the changing room with the majority of the judgment focusing on whether the decisions taken by the Trust were lawful. 

ET Comment on For Women Scotland v Scottish Ministers 

The central argument from Ms Peggie against the Trust was that the Supreme Court’s judgment in the For Women Scotland case established that Dr Upton was legally a man and therefore the Trust could not lawfully grant her permission to use the women’s changing room as doing so would amount to sex-based harassment. 

The ET challenged this interpretation of the judgment on two grounds. First, while Dr Upton may be a man for the purposes of the Equality Act 2010 (EA) with their biological sex determined by their sex at birth, Section 7 of the EA establishes the protected characteristic of gender reassignment which must also be considered by the Trust. Second, if we understand the judgment as requiring trans people to only use services that align with their birth sex, there will be situations where an employer is unable to act lawfully as permitting a trans man to use a women’s room may harass other women, permitting them to use the men’s room may harass other men and not permitting them to use either may infringe the individual’s rights which cannot be the intention of the Supreme Court. 

From this analysis the Judge framed the issue as one of conflicting protected characteristics, Dr Upton’s protected characteristic of gender reassignment and Ms Peggie’s protected characteristic of a belief in immutable sex as established by the case of Forstater v CGD in 2021. 

The Solution?

To solve this conflict the Judge drew analogy from previous cases of conflict between fundamentalist religious and gay employees and proposed using the test established in Bank Mellat v HM Treasury [2014] to evaluate any measure taken by the employer to resolve the conflict. 

The test consists for four questions:

1. Is the objective of the measure sufficiently important to justify the limitation of a protected right?
2. Is the measure rationally connected to the objective?
3. Could a less intrusive measure have been used without unacceptably compromising the achievement of the objective?
4. Whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

Applying the test to the facts, the Judge ruled that it was reasonable for the Trust to initially grant permission for Dr Upton to use the women’s changing room as they could not reasonably have foreseen that doing so would harass a gender critical employee as Ms Peggie was yet to raise any concerns and the evidence provided was insufficient to establish that Dr Upton was at greater risk of committing sexual assault by virtue of being a trans woman. 

The Judge was, however, more critical of the Trust’s approach when it came to responding to Ms Peggie’s concerns ruling that the failure to revoke permission to use the changing room from Dr Upton once the conflict had arisen did not pass the above test as there were several other measures, such as the adjustment to shifts later implemented, that could have better balanced the effect on Ms Peggie with Dr Upton’s rights. On this basis, the Judge concluded that failing to revoke permission from Dr Upton did have the effect of violating Ms Peggie’s dignity which amounted to harassment. The Trust was also criticised for various procedural errors in the disciplinary process with the Judge concluding that, although Ms Peggie’s expression of her beliefs on Christmas eve was properly considered impermissible, the unreasonable delay in conducting the grievance investigation had the effect of creating a hostile environment for Ms Peggie. 

We are currently awaiting a further hearing to decide remedy and Ms Peggie has several other ongoing cases against the Trust, the CEO and her union so there is likely to be further developments on this with Ms Peggie confirming she plans to appeal in the new year but for now this judgment represents welcome clarity on the steps employers can take to make sure their approach to single sex spaces remains lawful. 

If you require any assistance in relation to discrimination, please contact a member of the Employment Team.