Official Report 1039KB pdf
Employment Tribunal Decision (Sandie Peggie v NHS Fife)
To ask the Scottish Government what its response is to the decision of the employment tribunal of Sandie Peggie v NHS Fife health board.
We note the judgment in this very complex case. Individual decisions by the board in relation to employment matters are a matter for the board, but, as a Government, we will be considering the judgment very carefully for any issues that require wider consideration.
This Government has called for, and will continue to call for, a respectful and compassionate debate on gender issues, recognising the need for respect and dignity for all involved. These matters need to be carefully considered, openly and thoughtfully, and respectful debate among people with differing opinions should always be possible—that is the only way that we will make progress. My focus is to ensure that NHS Fife and other boards provide an effective health service for the populations that they serve across Scotland, and that will continue to be my focus.
NHS Fife was found to have harassed a nurse of 30 years just for standing up for her rights to privacy and dignity. Her sex-based rights under the Equality Act 2010 were not protected. Too many female nurses are operating in a climate of fear in a two-class system. National health service boards are allowing trans activists to push their illegal and harmful self-identification agenda and fuel a toxic and harmful culture. The cabinet secretary talks about different opinions, but what about nurses who are being told to be nice, when nice means subjugating their rights to privacy, dignity and safety? Activism has no place in hospitals, where the number 1 priority should be safeguarding. Cabinet secretary, what will you do to keep all women safe in hospitals, protect their sex-based rights and eradicate this climate of fear, harassment and bullying?
Speak through the chair.
I have been very clear since coming to office—as, I believe, my predecessors were—on the importance of dignity and respect for all people in the employment in the health service. I will say again that our health system is based on the core values of care, compassion, openness, honesty, dignity and respect for everyone, irrespective of their individual identities. This is an incredibly complex case and a lengthy judgment, so we will take care and time to reflect on it, as I urge all colleagues to do.
Cabinet secretary, what about the care and compassion for female nurses?
Through the chair, Ms White.
The floodgates have opened and the judgment is the thin end of the wedge for employment tribunal cases and settlements. Millions of pounds of hard-earned taxpayer money is being paid by the Scottish Government to fuel organisations such as Engender, LGBT Youth Scotland, Stonewall and the Scottish Trans Alliance, allowing them to go rogue and unchecked. Many of them push their illegal propaganda, influencing training materials, guidelines and policy in hospitals and the wider public sector. Under procurement policies, NHS boards do not award contracts to organisations that do not abide by the law. Why is this any different? Cabinet secretary, will you personally—
Through the chair, Ms White.
Presiding Officer, will the cabinet secretary personally oversee a review of the policies and guidelines that are being influenced by those organisations before they come up for financial renewal next year—
Cabinet secretary.
—or will he, under his watch, allow—
Cabinet secretary.
Presiding Officer, I think that we are going slightly beyond the tribunal decision. To provide some context, the tribunal has still to proceed to a remedy; there are 14 days in which the people who are involved have an opportunity to appeal. It is important that we allow that process to take its course and that we respect it. The question of the wider considerations of ensuring that everybody is able to speak up and access and deliver health services with respect and compassion was answered by me in my previous reply.
A number of members wish to ask supplementary questions; I hope to get all those in, but they will need to be slightly briefer.
The ruling in the Sandie Peggie case leaves significant questions for NHS Fife and the Scottish Government to answer. The Scottish Government wrote to health boards in early September about the Supreme Court judgment, but left it as a matter for individual boards to consider, following their own legal advice. Surely we should have one consistent approach across Scotland, in which the legal advice for boards is the same and a woman does not need first to complain to have her employer follow the law—or does the Scottish Government expect individual front-line staff to be their own experts on human rights law?
Again, the Scottish Government accepts the Supreme Court ruling. We accept that judgment and are taking forward the detailed work that is necessary as a consequence. A working group that has been established and convened by the permanent secretary has been actively considering the implications of the judgment across every key area of Government. As a result of that work, action has already been taken, including the production of updated guidance on the Gender Representation on Public Boards (Scotland) Act 2018 and an amendment to the public appointments recruitment process for regulated public bodies, through which the act is applied. Action is being taken.
This case is a prime example of the Scottish National Party’s flawed self-identification guidance having gone wrong. It has been nearly eight months since the Supreme Court ruled that, when it comes to equalities legislation, the definition of “sex” is based on biology, yet public bodies under the direction of the Scottish Government have still not implemented that judgment. Will the Scottish Government finally commit to ensuring that all public bodies follow the judgment?
I have already given the Government’s position on the Supreme Court, in answer to Jackie Baillie. Again, I will provide context on where we are when it comes to the tribunal ruling. The tribunal has still to proceed to a remedy. The remedy hearing is still to take place. There are 14 days in which those who are involved in the tribunal can appeal, so I caution us all against rushing to judgment while the process is still under way.
Despite the valiant attempts of anti-trans campaigners to claim a win on the issue, the tribunal found that Ms Peggie’s behaviour amounted to harassment of Dr Upton, and it dismissed the vast majority of her claims. Most important, it is the second Scottish employment tribunal in a month to find that employers are not, in fact, required to operate the kind of trans-segregation policies that anti-equality groups are pushing for. Does the Scottish Government agree that the blanket exclusion of trans people from the facilities that they need at work is generally unlawful, and will it therefore make it clear to all public bodies in Scotland that segregating trans people is not supported in law and that their human rights will be defended against the current onslaught?
As I said, we are still working through and will consider carefully the tribunal ruling and its implication not just for the health service but for wider public bodies as employers.
As I said in response to previous questions, our health system is based on the core values of care, compassion, openness, honesty, integrity and respect for everyone, irrespective of their individual identities. Four areas were upheld by the tribunal, which need to be taken seriously, and I will correspond with NHS Fife to hear how it intends to respond to those.
The conduct of the senior management of NHS Fife throughout this entire episode has been disgraceful. Hundreds of thousands of pounds of public money has been spent in legal fees defending the indefensible, and more money has been spent on media management. The character of Sandie Peggie, a nurse with a 30-year unblemished record, was traduced in court. A bizarre media statement was issued attacking Sandie Peggie’s legal team, which later had to be withdrawn and which we now know was instructed personally by the chief executive. Carol Potter, as chief executive of NHS Fife, has lost the confidence of the people of Fife and does not deserve to continue in that role. She should not be allowed to retire next year on a healthy pension. Will the health secretary now sack her and remove her from a job that she is not fit to do?
The tribunal has still to proceed to a remedy and the parties involved still have 14 days to appeal the decision. I note that four claims were upheld out of the 47 claims, and it is important that serious consideration is given by NHS Fife to those four claims that were upheld out of 47. I will be corresponding with NHS Fife in order to hear its response and how it will respond to those claims being upheld.
Everybody, regardless of their protected characteristics under the Equality Act 2010, has the right to feel safe at work and free from harassment. Organisations such as Engender do incredible work using their vast experience to contribute to debates and to promote and protect women’s rights. Does the cabinet secretary agree that we must listen to them when they do so?
I have already set out that I expect, from a health service perspective, a culture of openness, transparency and support for patients and members of staff to be able to interact and go about their business, whether that is seeking to get access to services or, indeed, to deliver them. I expect that irrespective of people’s individual identities. Of course, it is open to anyone to bring forward concerns at any point and to ensure that those are properly remedied, and it is for those organisations to support people in doing so.
Shamefully, during the tribunal, the cabinet secretary expressed confidence in the senior leadership of NHS Fife. Now he must have come to the conclusion that most of us reached months ago—that they do not deserve that confidence. If the current chief executive does not do the right thing and resign immediately, will he do the right thing and sack her?
I have already said in response to Murdo Fraser’s question that the tribunal still has a course to run, which includes the conclusion of the remedy, and that all parties involved have 14 days in which to appeal. It is important that the issues that have been raised around the four claims that were upheld out of 47 claims are responded to. That is why I will be corresponding with NHS Fife in order to get its response. Otherwise, it is important that we take the time to reflect on the judgment and the complexity that is involved here. We will certainly be doing that in Government.
The Sandie Peggie employment tribunal exposes not just one employer’s failings but a systemic collapse in how public bodies understand and uphold women’s sex-based rights. This judgment further exposed how whistleblowers are harassed merely for speaking up for themselves or for others. Women in Scotland should not have to become litigants simply to secure their lawful rights to dignity and safety at work and in public spaces and services. The Supreme Court settled the law. Will the Government now act with urgency to follow the law, as the Equality and Human Rights Commission advised months ago, and support its public bodies to follow the law and stop this ridiculous waste of taxpayers’ money?
We have been clear since the Supreme Court ruling that we accept its judgment. We are taking forward the detailed work that is necessary as a consequence. We have had sight of the Equality and Human Rights Commission’s updated code of practice, but it is for United Kingdom Government ministers to publish that, and we await that happening.
On the outcome of the tribunal, there are still matters to run their course, including the remedy hearings, and it is open to individuals to appeal the decision. It is important at this stage to take calm reflection of the judgment, which is complex both legally and from a policy perspective, and to ensure that we are responding adequately across Government.
It is clear that the SNP’s gender self-identification policy still prevails in spite of the Supreme Court judgment. Sandie Peggie’s case proves that the burden of expressing concerns around safety, privacy and dignity lies directly with women and women only. Women’s protections must be guaranteed in the workplace. Will the cabinet secretary give biological females the assurance that they can feel safe in all health boards across Scotland?
Since coming into office, I have made clear the culture of respect that I expect within our boards as employers, and I continue to work on that with the Independent National Whistleblowing Officer and local whistleblowing champions, as well as with the chairs and chief executives of boards. Regardless of people’s individual identities, I expect everybody to be treated with respect and that boards will ensure that any concerns that people raise are properly considered and investigated, regardless of whether those concerns are about the issues that this tribunal is concerned with or about other matters around patient safety.
That concludes this item of business. There will be a brief pause before we move to the next item of business, to allow members on the front benches to change over.