Peggie v Royal College of Nursing (Case No. 8001209/2025)

In brief

In a nurse's claim against her trade union, the Royal College of Nursing won: the Employment Tribunal in Scotland held that "the claimant's complaints of direct discrimination do not succeed and are dismissed" [133]. The RCN accepted that her belief that biological sex is real, important, immutable and not to be conflated with gender identity is protected under section 10 of the Equality Act 2010 [2], [13]. She challenged three decisions: an officer's failure in January 2024 to tell her she might have claims against her employer or to refer her for legal advice; the refusal of legal assistance with a second claim; and how a senior officer put her requested assurances to NHS Fife in September 2025 [3], [117], [128]. The tribunal did not decide whether the RCN as an organisation held a gender identity belief, because even if it did, the question was what operated on each decision-maker's mind [109], [111]; a complaint resting on the RCN's own belief could not succeed [114]-[115]. The first officer did not know of her belief [119]. The other two decision-makers knew of it, and the tribunal accepted their reasons as genuine and unrelated to it: a long-standing rule against legal assistance where a member has taken independent legal advice on a linked claim [124]-[126], and the senior officer's understanding that her role was individual representation [128]-[131]. The claimant did not allege conscious discrimination; her case was subconscious influence [107].

Key provisions

• para-107 — The claim was run on subconscious influence only : Per [91] and [107], the claimant did not contend that the decision-makers consciously intended to discriminate; her case was that the respondent's institutional culture and beliefs subconsciously influenced them, and she said it was "not suggested that any of those who took relevant decisions did so with a conscious determination to frustrate or punish the claimant because of her protected belief" [107]. Per [99]-[101], applying Nagarajan, the tribunal must explore the mental processes, conscious or subconscious, of the alleged discriminator; the characteristic need only have a significant influence, and people need protection from unrecognised prejudice as much as from conscious discrimination. Per [110.3], applying Bahl, a finding of unconscious discrimination needs clear evidence and cannot rest on a hunch or speculation.
• para-109 — Institutional belief is not the question; each decision-maker's reasons are : Per [109], "The issue before the Tribunal is not whether the respondent, viewed institutionally, held a particular belief." The issue is whether the treatment occurred because of the claimant's protected belief. The tribunal found it unnecessary to decide whether the respondent held the asserted institutional belief, because even if it did, that would not of itself show that the decision-makers acted because of her belief. Per [111], it considered the material relied on only so far as needed to decide whether it influenced the three decision-makers, consciously or subconsciously.
• para-110 — Institutional material: admissible with care, no transferred malice : Per [110.1], applying Chief Constable of Greater Manchester Police v Bailey (Court of Appeal, 2017), material showing discriminatory conduct or attitudes elsewhere in an institution is not always inadmissible: authoritative material showing such attitudes are widespread may, depending on the case, "make it more likely that the alleged conduct occurred, or that the alleged motivations were operative", but it must be used with care, its probative value must be identified with specificity, and there is no doctrine of transferred malice. Per [110.2], applying Gould, the mind of the decision-maker must have been directly affected or influenced by the protected characteristic.
• para-112 — Only matters before the decision can have influenced it : Per [112], matters which occurred after the relevant decisions could not have influenced the decision-makers and were not taken into account. The respondent's unchallenged evidence was that it had implemented an action plan on the Carr Review well before the relevant decisions, so the Carr Review "had little, if any, probative value in relation to this case" [112].
• para-114 — A complaint resting on the respondent's own belief cannot succeed : Per [113]-[115], parts of the first two complaints were pleaded as caused by the respondent having adopted gender identity as its institutional belief. Applying Lee v Ashers Baking Co Ltd [2018] UKSC 49, a direct discrimination claim cannot arise from treatment on grounds of the alleged discriminator's own religion or belief, so to the extent it was a free-standing complaint based on the respondent's beliefs it could not succeed [114]-[115]. Per [115], "evidence relied upon to establish an institutional culture remains relevant" so far as it supports the allegation that the claimant was treated less favourably because of her own belief.
• para-119 — Knowledge of the belief is a prerequisite : Per [119], the officer who took the claimant's first call did not understand her to be asserting or manifesting a protected belief and saw her views as no more than disagreement about the use of changing facilities: she had not referred to a philosophical belief or to gender critical or sex realist beliefs, terms she did not then know [22], [24], [119]. Per [119], citing McClintock, "it is a prerequisite that the alleged discriminator was aware of the protected characteristic" in a direct discrimination claim. For this reason alone the first complaint failed [120].
• para-120 — First complaint: alternative findings on the officer's reasons : Per [120.1], had knowledge been established, the officer did not tell the claimant she might have claims because his focus in the first call was her suspension and the process to follow; he intended to advise in detail once he had more information, and saw no urgency given the time limit for a tribunal claim. Per [120.2], his actions were not influenced by her belief; of the material relied on that predated his call, only the 2020 and 2021 legal updates and his use of the pronoun she rather than he in his call note were put to him; the tribunal recorded his explanation of the note as one of several typing errors [18], [120.2]. Per [120.3]-[120.4], he would have treated anyone recently suspended in the same way, and his standard practice was never to refer a matter to solicitors on an initial call [21].
• para-124 — Second complaint: refusal of legal assistance with a second claim : Per [124]-[125], the associate director who decides legal assistance requests in Scotland refused the request because the claimant had taken her own legal advice on her first claim and on the new complaint, which he saw as inextricably linked to the first claim [41]. The tribunal accepted his evidence: "Those reasons were case specific, consistent with his long-standing practice, and unrelated to the claimant's protected belief." He knew of her belief and of strongly held views on both sides among members, but did not understand the RCN to prefer either [125]. Per [42] and [126], he had applied the same rule for 18 years and would have decided the same way for a member without her belief.
• para-128 — Third complaint: assurances sought from NHS Fife and not copied to members : Per [128], on single-sex facilities and on protection of gender-critical belief, the tribunal found that "The assurances which the claimant had requested were sought by GT in her email", so the treatment alleged was not established. Per [129]-[130], the senior officer reframed the request about staff discussing and organising as an assurance about the claimant herself, and did not copy the letter to all RCN members employed by NHS Fife, because she understood her role as supporting one member in a confidential individual process and no other members had raised similar concerns or consented to a collective group [62]. She knew of the claimant's belief, and herself held gender-critical views [130]. Per [131], she would have acted the same way for a member without that belief.
• para-121 — Burden of proof not needed where positive findings are made : Per [104]-[105], applying Hewage and Laing, the burden of proof provisions in section 136 are not needed where the tribunal can make positive findings on the reason for the treatment. Per [121], [127] and [132], the tribunal made positive findings on each decision-maker's reasons, so it did not need to apply the burden of proof: "Even if the burden of proof had transferred to the respondent, it was discharged."

When relevant

When it is argued that an organisation's published position, culture, guidance, merchandise or events on gender identity show that a particular decision about a gender-critical employee or member was direct discrimination: the tribunal asked what each decision-maker knew and had seen before the decision, and why that person acted, not what the organisation stood for [109]-[112], [120.2], [125], [130]. Also when a trade union or professional body handles an individual member's casework, requests for legal assistance or representations to an employer where the member's belief is in play [41]-[42], [62]. It governs members of trade organisations under section 57 of the Equality Act 2010 [95]-[96]; its approach to knowledge and the reason why rests on general direct discrimination authority (Nagarajan, Khan, Shamoon) and is not confined to unions [99]-[102], [110]. It is a first-instance Scottish decision on direct discrimination only [1]. Decision support, not legal advice.