Peggie v Fife: Employment Tribunal considers the effect of landmark Supreme Court ruling in For Women Scotland

The facts

At the material time, Ms Peggie (‘Claimant’) and Dr Upton (‘Second Respondent’) were both employed by NHS Fife (‘First Respondent’) and worked in the Accident and Emergency Department at Victoria Hospital, Kirkcaldy. The Claimant, who is female, is a long-serving nurse with thirty years of experience in the role. The Second Respondent, a trans woman, was in the early stages of her career as a junior doctor.

A disagreement arose between the Claimant and Second Respondent regarding the Second Respondent’s use of the Department’s female changing room. The Claimant expressed to the Second Respondent her belief that individuals who are assigned male sex at birth, including trans women, should not be given access to female-only spaces.

The Second Respondent reported the Claimant to the First Respondent, and she was subsequently suspended pending the outcome of its disciplinary investigation. Following the suspension, the Claimant issued a claim against the First Respondent and Second Respondent, alleging direct discrimination, indirect discrimination, harassment (including sexual harassment) and victimisation under the Equality Act 2010.

The decision

The Employment Tribunal (‘ET’), in a comprehensive 312-page judgment, upheld the Claimant’s harassment claim against the First Respondent but dismissed all other claims, including those against the Second Respondent.

In reaching its decision, the ET held that the For Women Scotland decision did not result in it being inherently unlawful for a trans female, who is biologically a male under the Equality Act 2010, to be given permission to use a female changing room at work:

“[820] In summary we rejected the claimant’s argument. The Supreme Court’s decision has the conclusion that a trans woman is not a woman for the purposes of sex under section 11. For a question of which changing room to use that is not in our view determinative. The protected characteristic of gender reassignment is not to be wholly disregarded as it is of equal status to sex (as are the respective beliefs of the claimant and second respondent). It may be lawful to grant permission to a trans person to use the changing room that aligns with the sex and gender they identify as having, dependent on the circumstances…”

The ET also emphasised that where a conflict exists between protected characteristics, the test to be applied is one of objective justification as derived from the case of Bank Mellat v HM Treasury (No 2) [2014] AC 700.

“[921] The test is the most appropriate basis we have found to resolve the conflict between protected characteristics held by employees. It has four elements, being:

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, and
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 its achievement, the former outweighs the latter.”

Comment

Although the ET has resolved liability, the remedy hearing has yet to be fixed. Either party may still seek reconsideration or appeal to the Employment Appeal Tribunal.

 

Analysis and review produced by Cameron Taylor, Pupil of Farrar’s Building. 

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