Workplace changing facilities: Sex Discrimination, Transgender Rights and Employer Liability

Whilst this is a first-instance tribunal decision and is not binding it has still received a considerable amount of public attention and once reviewed, it is understandable why. Due to the case’s reliance on a recent Supreme Court authority (For Women Scotland), it provides a useful insight into how Tribunals may approach a similar claim. However, there have been a number of conflicting decisions regarding the use of single sex changing rooms for trans individuals.  So, watch this space for the appeals to this decision and others. It is not an easy area for employers to navigate without issue and clarity would be welcomed.

The claim

The claimants were female nurses working at Darlington Memorial Hospital. Crucially, under the Trust’s Uniform Appearance and Dress Code Policy, staff were required to change into and out of uniform on site to lower the risk of infection. The Trust operated male and female communal changing rooms.

The Trust’s ‘Transition in the Workplace’ policy permitted transgender employees to use facilities aligned with their self-declared gender identity. A trans woman employee (a biological male identifying as female with the protected characteristic of gender reassignment) used the female changing room.

Several female staff raised concerns regarding the increased risk to both privacy and safety. The Trust declined to amend its policy and required those who objected to make alternative arrangements, despite no suitable alternative changing rooms being available.

The claimants brought several claims under the Equality Act 2010 (“EqA”):

• harassment related to sex and gender reassignment 

• indirect sex discrimination

• victimisation 

The decision

The tribunal confirmed that it was required to interpret the EqA consistently with the Supreme Court’s decision in For Women Scotland, which held that references to “sex” mean biological sex. 

Applying that approach, the tribunal found against the Trust as follows.

1. Harassment related to sex and gender reassignment

• Requiring the claimants to share a changing room with a biological male, and failing to provide suitable alternative facilities, amounted to ‘unwanted conduct’ relating to the protected characteristic, ‘sex and gender reassignment’

• The Trust’s handling of the claimants’ objections, including declining to engage with their concerns and framing the issue as one requiring “education”, contributed to a ‘hostile, humiliating and degrading environment’

   

2. Indirect sex discrimination
   The tribunal identified two relevant “provisions criteria or practices” (PCPs) which weren’t justified:

• allowing access to single-sex changing rooms based on self-declared gender identity

• prioritising the perceived rights of transgender employees aligned with their identity over other employees’ rights to single-sex facilities.

Although these PCPs applied to both men and women, the tribunal held that:

• women were placed at a ‘particular disadvantage’, as they were more likely to experience fear, distress or humiliation when required to undress in front of a member of the opposite biological sex

• the claimants were put at that disadvantage

• the Trust failed to show that the PCPs were a ‘proportionate means of achieving a legitimate aim’.

   

3. Victimisation

• The victimisation claims were dismissed and not upheld. In particular, the tribunal found that the claimants had not experienced any detriment and the Trust’s actions did not amount to penalisation, less favourable treatment or retaliation for raising those concerns.

In short, the tribunal concluded that it was not lawful for trans staff to use their preferred changing facilities. It also considered the Workplace (Health, Safety and Welfare) Regulations 1992 and determined that these were breached too. It upheld the indirect sex discrimination claim and upheld the harassment claims against the Trust in part. Claims of harassment against the trans colleague were dismissed. The victimisation claims were dismissed.

It is important to note that Hutchinson does not sit in isolation. Other tribunal decisions have approached similar issues differently, including Peggie v NHS Fife (currently under appeal) and BM Kelly v Leonardo UK Ltd. In those cases, tribunals were prepared, on their specific facts, to accept that permitting transgender employees to use facilities aligned with their gender identity could be lawful, particularly where the employer had carefully balanced competing rights and where suitable alternative arrangements were available. These cases underline that outcomes in this area are highly fact-sensitive and that there is currently no settled authority. While Hutchinson emphasises the potential risks for employers who prioritise one protected characteristic without adequate justification, Peggie and BM Kelly demonstrate that different conclusions may be reached where the factual context differs. Until appellate guidance provides greater clarity, employers should expect continued legal uncertainty in this area.

Why this matters for employers and employees

Although not binding, the decision is significant in several respects.

For employers:

• policies dealing with single-sex facilities must properly balance competing protected characteristics rather than assuming priority for one over another

• allowing access based solely on self-declared gender identity may give rise to indirect sex discrimination if the impact on women is not assessed and justified

• the availability, or lack thereof, of genuinely suitable alternative facilities is likely to be critical

• dismissing staff concerns as educational issues, rather than engaging with them substantively, may itself contribute to findings of harassment.

For employees:

• raising concerns about privacy and dignity in relation to single-sex facilities is not inherently discriminatory, as the claimants had first feared

• tribunals may accept that women, as a group, are more likely to experience distress than men in these circumstances

• liability may rest with the employer’s policies and responses, rather than with individual colleagues.

The case also reinforces that, following For Women Scotland, tribunals are likely to approach sex discrimination claims on the basis of biological sex, while still recognising gender reassignment as a protected characteristic requiring careful consideration.

How our Employment team can help you

Our Employment team advises both employers and employees on discrimination and workplace policy issues, including:

• reviewing and drafting company policies on inclusion and equality

• advising employers on balancing protected characteristics and risk

• supporting managers and HR teams in handling sensitive employee concerns and complaints; and

• advising employees considering discrimination and harassment claims.

If you would like to discuss how this decision may affect your organisation, or any other employment law issue, please contact us on 020 8290 0440 or speak to a member of our Employment team.