The truth about work, single-sex spaces and the law

Last week an Employment Tribunal heard evidence in the case of Peggie v NHS Fife and Dr Elizabeth Upton, who is male but identifies as a woman. Sandie Peggie, a nurse of thirty years’ experience, is suing the NHS Board and Dr Upton for several claims of harassment and discrimination relating to Dr Upton’s use of the female changing room as well as the investigation and suspension of Ms Peggie for misconduct when she raised her discomfort with Dr Upton. 

The Employment Tribunal heard evidence that Ms Peggie initially raised concerns about Dr Upton’s use of the female changing room with her manager before an incident on Christmas Eve 2023 when the nurse expressed her discomfort to Dr Upton directly.  

Previously, Ms Peggie had chosen to leave the female changing room when Dr Upton was there and gave evidence that on one occasion she was in a state of undress when Dr Upton entered. Dr Upton has described her leaving the changing room as “weird” and kept notes of when this happened. 

On this occasion, however, Ms Peggie had experienced a sudden heavy period and was worried that she had bled through her scrubs. So, she went to the changing room and did not leave when she noticed Dr Upton, instead expressing her discomfort and stating that, in her view, Dr Upton should not be using the female changing room because he was a man.  

Shortly after this, Dr Upton made a formal complaint against Ms Peggie that she had engaged in an act of harassment constitutive of a hate incident. Dr Upton also raised serious patient safety concerns, claiming that, weeks prior, Ms Peggie had walked out on a patient in resus in order to avoid being in the same room as Dr Upton. A patient in resus is considered critically ill, requiring immediate life-saving treatment. Ms Peggie was suspended and informed about the hate incident but was not about the patient safety concerns until months later. She denies ever ignoring Dr Upton or walking out on any patient in resus. 

Central to this case is the question of whether Dr Upton’s use of the female changing room and NHS Fife’s practice of allowing that use constitute unlawful harassment and discrimination against Ms Peggie. 

The law on workplace changing rooms is clear: the Workplace (Health, Safety, and Welfare) Regulation 1992 which state that changing facilities will not be suitable “unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety”. Given the fact that in a hospital staff must change completely into scrubs, it is obvious that these Regulations envisage separate facilities for men and women being necessary for reasons of propriety.

It is not possible for Dr Upton to have met the requirements for obtaining a GRC because, as stated in oral evidence this week, Upton began transitioning in 2022 and therefore could not have completed the required 2 years of living in the acquired gender prior to August 2023 when the events in this case began. Therefore, as a matter of UK law, Dr Upton is a man for all legal purposes, including the Equality Act 2010 and the 1992 Regulations. 

 This is clear as a matter of law

The 1992 Regulations are strict. There is no flex in them. NHS Fife is under an obligation to provide separate male and female changing facilities for staff. Providing a changing facility labelled “female only” while engaging in a practice of allowing a man to use it is not providing separate male and female changing facilities. 

 This is clear as a matter of law. What remains to be determined is whether the failure to provide a female-only changing room and the use of purportedly female-only facilities by Dr Upton constitute unlawful harassment and discrimination against Ms Peggie. I’ve written elsewhere about those legal questions, for those who are interested.