The NHS Fife case: what do we know about how decisions have been made?

Introduction

NHS Fife is currently facing an employment tribunal from a nurse who objected to a trans-identified male using the women’s changing rooms. As reported in the press, after raising a complaint, she was told to use a cupboard to change in, and was later suspended (since lifted). A separate case is currently being brought against their employer on similar grounds by a group of nurses in Darlington.

NHS Fife has chosen to defend its policy, which provided for changing room access based on gender self-identification. It is insisting on taking the case to be heard before an employment tribunal. The Board is also seeking to have the case heard in private. It is understood that the complainant (the nurse) wants the case to be heard in public.

The likely cost to NHS Fife is reported to be around £200,000.

This blog looks at accountability for decision-making in NHS Fife and what is known about how this decision was made.

NHS Fife: background

Scotland has 14 regional health boards, one of which is NHS Fife. These play a central role in the Scottish NHS, as described on the NHS Fife website (all screen shots below are from the NHS Fife Board website).

NHS Boards are unelected. Political accountability for the NHS in Scotland rests with the Scottish Government.

In practice, NHS boards manage NHS services locally and decide how the resources allocated to them from central government are spent.

The Board of NHS Fife has 18 members. A ‘non-executive’ board member is one appointed to provide an external check/input to a board. The membership is available on the NHS Fife Board’s website.

Meetings of the NHS Fife Board

The minutes and other papers for this year’s meetings to date are available on the Board’s site.

Published Board papers

25 September 2024
30 July 2024
25 June 2024
28 May 2024
26 March 2024

The Board papers for each meeting run to hundreds of pages, so we have relied on word-searching to look for any record of whether the case has been discussed. We searched these terms in the published papers for these meetings: tribunal/equality/legal/single sex/single-sex/transgender. They do not appear to record any discussion of this case.

NHS Fife Staff Governance Committee

The NHS Fife Board has six governance committees that report directly into NHS Fife Board, including a Staff Governance Committee (SGC). Of direct relevance to the current legal case, the SGC remit includes risk management.

Copies of SGC minutes are presented to the Board and published alongside other Board meeting papers. These minutes include an update from the Board’s Equality and Diversity Champion. When presenting these minutes, the SGC Chair may also give an oral report to the Board.

Recent SGC minutes (July 2024) shared with the Board show the committee considering matters affecting staff with the protected characteristics of sexual orientation and gender reassignment.

The September minutes show a pause on the development of the Board’s Trans Policy ‘following growing media coverage and public debate’.

There is no sign, however, that the committee discussed the legal case at either meeting, or earlier ones. If the case has come up in discussion at these committee meetings, and that has been reported orally to the Board, this is not publicly minuted.

NHS Fife’s description of Protected Characteristics under the Equality Act

The Board’s website has a section on Equality and Human Rights, with a section on protected characteristics.

The level of information available on each of the characteristics on that page is, however, variable, as shown below.

What about sex?

The very limited entry for ‘Sex’ appears to be the only material provided on this characteristic. The reference to the Equality and Human Rights Commission (EHRC) is incorrect: the definition of “man” (a male of any age)  and “woman”  (a female of any age) are contained in s212 of the Equality Act 2010.

Unequal weighting

There is further material provided under ‘Resources for Protected Characteristics’, but this only deals with two of the nine characteristics protected in the Act, which are sexual orientation and gender reassignment.

How did NHS Fife reach its legal case handling decision

From the published minutes, it is unclear when and how the decision was taken, firstly, to spend NHS Fife funds on contesting the current case, and second, to invest further in seeking to have it held in private.

A paper considered at the most recent Board meeting suggests the Board is looking at improving how it responds to and learns from legal cases brought against it (these are characterised as ones coming from patients). It is not clear from the paper how this is currently managed, although the recommendations might be read as suggesting that the Board is not routinely briefed on or involved in decisions here.

Separately, the Board’s website gives the strong impression that decision-making on the case has happened in a context where two of the nine protected characteristics in the Equality Act tend to predominate, in the Board’s perception of its responsibilities under that Act.

NHS resources are under enormous pressure. How spending decisions are made is a matter of public interest, and accountability for such decisions is important. It is desirable that the oversight applied in NHS Fife to its decision-making here should be made clearer.

Afterword: a note on public meetings

The NHS Fife Board meets every 2 months. For interested readers, meetings are open to public attendance. The website has these two entries providing information on attendance.

The next meeting is on 26 November 2024 at 10am.