Human Rights in Peggie v NHS Fife
An Employment Tribunal has concluded that Sandie Peggie was unlawfully harassed by her employer, NHS Fife, when it failed to revoke permission granted to a male colleague to use the female changing room following her complaint.
This is a long and complicated judgment, which has caused controversy with allegations of fabricated quotes from legal authorities. This post will not address that issue except to note that it is bound to be relevant to the appeal.
For now, I hope to give an overview of what the ET has held and my assessment of how well it grappled with human rights law. Before that, however, it is important to stress that the judgment is binding only on the parties. It sets no precedent and makes no law until any appeal is determined.
The Outcome
The Employment Tribunal concluded that NHS Fife harassed Sandie Peggie by:
(a) failing to revoke its permission to the second respondent [Dr Beth Upton] to use the female staff changing room of the Emergency Department of Victoria Hospital, Kirkcaldy from on and after 16 September 2023 until the claimant returned to work on 14 April 2024, which resulted in two encounters between them on 25 October 2023 and 24-25 December 2023;
(b) taking an unreasonable length of time to investigate the second respondent’s allegations against the claimant between 5 January 2024, a reasonable period of time to do so being not more than six months;
(c) making reference to patient care allegations against the claimant on 28 March 2024; and
(d) giving an instruction to the claimant on 5 July 2024 not to discuss the case, until a further message on 22 July 2024 confirmed that that applied only to the investigation.
This outcome is unlikely to satisfy anyone. It effectively concludes that sometimes it will be harassment of a woman to permit a male colleague with the characteristic of gender reassignment to use the female changing room and sometimes it won’t be. Where it won’t be, it may be harassment of the male colleague to insist that female-only changing rooms are provided for biological women only.
The central issue
The core of the reasoning in this judgment starts over two hundred pages in. The Employment Tribunal sets out what it takes to be a central problem at the heart of this case:
[895] Where there is a conflict of protected characteristics and of beliefs of the nature that arises in this case an employer is faced with an exceptionally difficult matter to address. Whatever decision it takes can be challenged as unlawful under the Act, most obviously as one of harassment, but potentially direct or indirect discrimination in addition.
There is a lot to unpack here. In this post I will focus on what I take to be the central line of the Tribunal’s reasoning. In my view, most if not all of the legal conclusions flow from the below chain of reasoning:
Both Sandie Peggie and Beth Upton have rights protected under Article 8 of the the European Convention on Human Rights which are reflected in their rights under the Equality Act 2010. These rights are engaged in the context of a female-only changing room. For Peggie, the right concerns privacy from the opposite sex in a changing room. For Upton, the right concerns recognition of one’s gender identity by being permitted to use the female-only changing room. [854], [914], [915].
Because both parties have rights, both could argue that whatever NHS Fife did, it was discriminatory and harassing to them. [853], [895], [899], [906], [909].
Therefore a balance needs to be struck between the competing protected characteristics and Convention rights. [854], [884], [905], [914].
The Equality Act does not provide any mechanism to resolve this conflict. [884], [907], [918].
Therefore, in order for the Equality Act to be workable, the Employment Tribunal must identify a mechanism to resolve this conflict of rights. [884], [918].
The correct test to apply is a Bank Mellat proportionality analysis which asks:
(i) whether the objective of the measure is sufficiently important to justify the limitation of a protected right;
(ii) whether the measure is rationally connected to the objective;
(iii) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and;
(iv) 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. [920], [921].
Applying this test to the facts, NHS Fifes legitimate objectives were:
to protect and uphold the rights of Beth Upton under both the Human Rights Act 1998 and the Equality Act 2010
promoting and upholding diversity and inclusion in the workplace; and
appropriate use and provision of available facilities in the workplace. [925].
The measure of granting permission to use the female-only changing room was rationally connected to these objectives. [926].
The less intrusive measure test must be applied to three different periods of time:
2 August to 15 September 2023:
Since there were no complaints from female members of staff, it was reasonable for NHS Fife to proceed on the basis that allowing Upton to use the female-only changing room was the least intrusive means of achieving the objectives above. [932].
16 September 2023 to 13 April 2024:
After Peggie complained, the least intrusive means of pursuing NHS Fifes objectives was to remove Upton from the female-only changing room on an interim basis. [937],
From 14 April 2024 onwards:
After a solution to the rotas had been found, the least intrusive measure was to permit Upton to use the female-only changing room again. [938], [939].
As regards the balance test, the Tribunal concluded at [952] as follows:
whether to permit a trans woman to use a particular single sex space such as a changing room which meets the balance test depends on all the circumstances and includes factors such as the views of other staff as expressed to the employer, how many do so and in what terms, the stage of transition that the trans person has reached including what if any changes to the physiological attributes of sex the person have been made and which the trans person chooses to inform the employer of, the trans person’s appearance as can be observed by others, the wishes of the trans person, the options where other facilities exist and what the employer knows or ought reasonably to know.
Applying this to the facts of this case, the Tribunal concluded at [965] that:
for the period 16 September 2023 to 13 April 2024 the grant of permission by the first respondent to the second respondent was not lawful under the 2010 Act, and as a result the claimant’s perception of harassment when the second respondent was in the changing room on two occasions within those dates was reasonable in the circumstances. Outwith those dates the grant of permission was lawful under the 2010 Act, as her perception of harassment was not reasonable in the circumstances.
The Tribunal resolved this case by conducting a proportionality analysis and only then considering the application of the Equality Act to the facts. In my view, this was a flawed approach which impermissibly considered proportionality entirely free from the background statutory context, read in conjunction with domestic human rights principles. In what follows, I will set out my view on some of the specific areas where the ET erred. This will not be fully comprehensive. The judgment is long and convoluted. I’ve focused on these issues for now as they set what I think is the lens through which the ET approached this case.
