Key takeaways
Tribunal finds policy unlawfully discriminatory
The Trust’s changing room policy unlawfully harassed and disadvantaged female staff.
Conflicting tribunal outcomes create uncertainty
Recent cases reach differing conclusions on trans access to facilities.
Employers need clearer legal guidance
Lack of binding precedent leaves organisations uncertain about compliant policies.
In Hutchison and others -v- County Durham and Darlington NHS Foundation Trust the employment tribunal recently handed down its judgment relating to the use of single-sex facilities by a trans employee. This is the latest high-profile employment tribunal decision addressing the complex and controversial issue of single-sex spaces and transgender inclusion within the NHS.
The employment tribunal found that the Trust had unlawfully harassed and indirectly discriminated against female employees in its policy permitting trans employees to use changing rooms in line with their asserted gender identity.
Factual background
In this case, eight female nurses working at Darlington Memorial Hospital objected to the Trust’s ‘Transition in the Workplace’ policy that permitted their colleague Rose Hutchison, who is biologically male but who asserts a female transgender identity, to use the female changing room. The nurses expressed concerns about their privacy and dignity and made complaints to management concerning uncomfortable experiences in the changing room.
The nurses alleged that their concerns had been dismissed by managers who suggested they should “broaden their mindset” or use alternative changing facilities themselves. As a result, the nurses brought a claim for harassment and indirect sex discrimination.
The decision
In following the Supreme Court’s decision in For Women Scotland -v- The Scottish Ministers (‘FWS’) (which established that references to ‘sex’ in the Equality Act 2010 mean biological sex), the tribunal held that by requiring the nurses to share a female only changing room with a trans female colleague, who is a biological male, the Trust engaged in unwanted conduct related to sex and gender reassignment which had the effect of violating the dignity of the nurses and creating a hostile, humiliating and degrading environment.
The judgment concluded that the Trust’s policy of permitting biological males who identify as women to use a female changing room was not lawful. The tribunal considered the Workplace (Health, Safety and Welfare) Regulations 1992 (‘WHSW Regulations’) which require employers to provide separate facilities for men and women were necessary for propriety and concluded that in permitting Rose Hutchison, the trans colleague, to use the female changing room, the Trust was in breach of the WHSW Regulations.
Developments following FWS
Following the Supreme Court’s landmark decision in FWS, the Equality and Human Rights Commission (‘EHRC’) provided an interim update on the practical implications of the ruling, confirming it was compulsory for workplaces to provide sufficient single sex facilities where needed and, in workplaces/services that are open to the public “trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities.”
The interim update has since been withdrawn. However, the EHRC has updated its Code of Practice for services, public functions, and associations (‘Code’) in light of FWS, which will provide specific guidance on provision of single-sex facilities in public services. The Code has been submitted to the government for formal approval.
In another two high profile decisions from last month, the employment tribunals’ conclusions conflict with the outcome in Hutchison. In Kelly -v- Leonardo UK Ltd, it was found that the workplace toilet access policy that was based on asserted gender rather than biological sex did not constitute sex discrimination or harassment of a female employee.
In that case, Ms Kelly a female engineer employed by global security company Leonardo, held gender-critical beliefs and raised concerns about the company’s toilet access policy which allowed trans staff to use the facilities aligned with their acquired gender. She argued that this violated women’s privacy, dignity and safety and subsequently brought claims for harassment related to sex, sex discrimination and breach of her rights under Article 8 of the EHRC.
The employment tribunal dismissed the claims. It considered the WHSW Regulations and found that Leonardo had complied with their duty under the regulations by providing a sufficient number of compliant toilets.
Similarly, in Peggie -v- Fife Health Board and another the employment tribunal found that it was not inherently unlawful for a trans woman to use the female changing room at work.
In that case, Ms Peggie, a staff nurse working at Kirkcaldy hospital who held gender-critical beliefs, complained to management after becoming aware that a trans female doctor, who was biologically male, was using the female only changing room. Following an incident between Ms Peggie and the doctor in the changing room on Christmas eve 2023 in which Ms Peggie confronted the doctor about using the changing room, the doctor raised a complaint against Ms Peggie following which she was placed on special leave and subsequently suspended. As there was inconclusive evidence in relation to the allegations, no further action was taken. Ms Peggie brought claims against her employer and the doctor for harassment related to sex and religion/belief, sex discrimination and victimisation.
Ms Peggie’s harassment claim succeeded in part against her employer but all her other claims were dismissed. It was found that NHS Fife harassed her by failing to revoke permission to the doctor to use the female changing room on an interim basis until rota arrangements were made that ensured they were not working together at the same time and by taking an unreasonable length of time to investigate allegations made by the doctor against the claimant.
In relation to the doctor’s use of the female only changing rooms, the Tribunal referred to the FWS decision and concluded that it did not result in it being inherently unlawful for a trans woman to use the female changing room at work, but also that having the protected characteristic of gender reassignment did not mean that permission to use the changing room was necessarily lawful.
It noted that the Equality Act 2010 does not provide a test to apply in such cases where there was a conflict between different protected characteristics held by employees and determined that an objective justification test should be applied, looking at a range of factors including the options available to the employer, whether there were complaints from other staff and the trans person’s wishes.
Comment
These cases highlight the extremely sensitive and complex issues relating to the use of single-sex facilities by trans persons and the challenges employers face balancing the rights of employees when they have competing protected characteristics.
Whilst these cases will be of particular interest to employers when considering their policies on single-sex facilities, it is important to note that none of these decisions are binding. The conflicting decisions create uncertainty and confusion for employers in respect of access to facilities in the wake of the FWS decision. Ms Peggie has confirmed her intention to appeal; it is clear that an appellate level decision is needed to provide clarity in this area.
In the absence of any binding legal precedent and the updated EHRC Code, you should adhere to the principles set out in FWS and seek legal advice, tailored to your individual circumstances, if you are concerned about these issues.
