Click here to visit the Scotland home page for the latest news and sport By DAILY MAIL REPORTER Published: 22:34 BST, 29 September 2025 | Updated: 22:45 BST, 29 September 2025
The judge in the Sandie Peggie tribunal has accused NHS Fife’s legal team of ‘negligence’ after they attempted to make a last minute change to their defence.Employment judge Sandy Kemp has issued a damning rebuke after KC Jane Russell, who is acting for the under-fire health board and trans-identifying Dr Beth Upton, tried to insert a new key defence on the last day of the hearing.A&E nurse Mrs Peggie was suspended after a confrontation with Dr Upton in the women’s changing room at Victoria Hospital, Kirkcaldy, on Christmas Eve 2023. She was suspended and investigated after objecting to the trans woman using the female facility.Mrs Peggie subsequently claimed she had been discriminated against and launched legal action against both the health board and Dr Upton.Judge Kemp, who will rule on the outcome of the case later this year, has now refused to allow the health board to amend its formal pleadings to include a specific reference to nurse Peggie’s ‘behaviour’ during the confrontation.Legal experts explained this ‘defence’ by the health board’s legal team was not what Ms Peggie said but the way she said it, known as the ‘Bananarama defence’.It relates to the 1980s girl group’s hit song, ‘It Ain’t What You Do, It’s The Way That You Do It’. A&E nurse Sandie Peggie was suspended after a confrontation with trans doctor Beth Upton in 2023. She subsequently launched legal action against NHS Fife and Dr Upton Dr Beth Upton arriving for an earlier hearing at the tribunal in DundeeBut Judge Kemp severely criticised the request for an amendment. He decided that it was unnecessary as even if it was not explicitly stated, the health board’s general denial of the nurse’s claims had already set it out.His ruling, which was made public yesterday, stated: ‘No explanation as to why an application to amend it so late in the day to add reference to the issues which are loosely described as being of causation was given to us.‘That is surprising, and does not reflect at all well on those acting for the respondents.‘They argue in effect that they have not abandoned the causation or separability issues, but the tribunal has the ability to hold that they did so simply from the terms of the list of issues they stated specifically had been agreed.’The ruling concluded: ‘It seems to us given the terms of the respondents’ pleading and initial or opening skeleton argument that had been ordered and provided, and the other factors we refer to in this decision, that the omission must have been by what we can only describe as negligence.’Associate Professor of Law Michael Foran said: ‘On the final day of the hearing, Jane Russell, KC, counsel for NHS Fife made an application to amend the pleadings and a list of issues to acount for a key defence she was advancing that had not been included. The defence that she is seeking to advance is that Sandie Peggie has manifested her sex realist views in an objectionable manner when she objected to the presence of Dr Upton in the female only changing room.’Judge Kemp did allow the ‘list of issues’, a document agreed by both parties, to be narrowly amended.Barrister Naomi Cunningham, who is representing Mrs Peggie, had called the move by NHS Fife’s legal team to alter their defence on the last day of the tribunal ‘deplorable’ and said it had left her client ‘in tears’.She also accused Jane Russell, KC, of attempting to add ‘very substantial’ new allegations at the 11th hour.One legal commentator said: ‘It’s almost unheard of for an employment judge to state that lawyers, which include a King’s Counsel, have been negligent.‘It’s a pretty stinging rebuke for Ms Russell and the health board involved.’
