Following the UK Supreme Court’s decision in For Women Scotland last year (see our update here), there has been considerable uncertainty for employers about the practical impact of that decision, in particular in relation to the provision of single-sex facilities in the workplace. Recent updates, covered below, show that this remains a complex area for employers to navigate, often requiring employers to balance competing protected characteristics.
Background
The Equality and Human Rights Commission’s (‘EHRC‘) expected amendments to the Code of Practice for services, public functions and associations, following the For Women Scotland decision, in addition to a consultation on the matter, are anticipated to address the use of single sex facilities by trans individuals. However, these updates are still waiting to be approved by the Government and brought into force.
That amended guidance will not apply in the employment context (though will apply to the provision of services where an employer also provides services to the public) but may provide insights into the EHRC’s approach on how to navigate this issue. However, given the law applying to the provision of services to the public differs from the law applying to employers in a number of key ways, it is unlikely the amended guidance will provide all the answers for employers.
Recent Cases
Three recent Employment Tribunal (‘ET‘) decisions have drawn public attention and are starting to consider how employers should approach the law following the decision in For Women Scotland. Each concerned, in broad terms, challenges by individuals to policies which permitted trans employees to use single-sex facilities in the workplace (in these cases, toilets and changing rooms) based on their gender identity, rather than their biological sex (as that was defined in the For Women Scotland case for the purposes of the Equality Act 2010).
These decisions do not establish binding precedent and are specific to their facts. Further, we understand that the claimants in the Peggie and Kelly cases have expressed an intention to appeal. So, while these decisions highlight the complex legal and factual issues employers face in navigating this difficult area, they do not give clear answers for all employers.
Peggie v Fife Health Board and Others: The ET upheld a number of claims for harassment related to sex, but otherwise dismissed claims for direct and indirect sex discrimination, and victimisation. The ET found that it was not inherently unlawful under the Equality Act 2010 to adopt a policy of allowing trans employees to use changing rooms aligned with their gender identity, but stressed that each case was to be considered on its own facts.
The ET found that the Health Board had subjected the Claimant to harassment related to sex when it failed (on an interim basis) to either temporarily revoke the trans doctor’s permission to use the women’s changing rooms or find alternative arrangements. However, when the Health Board arranged rotas such that the Claimant and the trans doctor were never on the same shifts, there was no ongoing harassment and the doctor’s use of the female changing rooms was lawful.
The ET also rejected claims personally against the trans doctor, who was also a Respondent to the case, finding that she had not harassed the Claimant by using the female changing room.
Kelly v Leonardo: The ET rejected all claims (including for harassment related to sex, and direct and indirect sex discrimination) from an employee who objected to a policy allowing trans employees to use toilet facilities aligned with their gender identity. On the facts, there was no evidence to support that there had been disadvantageous or unfavourable treatment of the Claimant. In short, the ET concluded that there was no evidence that the Claimant had changed which toilet facilities in the office she used once she became aware that trans women were permitted to use the women’s toilets.
Hutchison and Others v County Durham and Darlington NHS Foundation Trust: The NHS Trust had a policy of permitting use of staff changing rooms based on gender identity. The ET upheld claims of harassment related to sex and gender reassignment, as well as indirect sex discrimination. Harassment arose when the Claimants were required to use the changing rooms, while the relevant policy was in place, and the NHS Trust did not provide suitable alternative facilities. The NHS Trust had also not taken seriously and had not dealt with the concerns raised by the Claimants about the changing room policy. Based on expert evidence, the policy was found to be indirectly discriminatory on the grounds of sex, and could not be justified, on the specific facts, as a proportionate means of achieving a legitimate aim.
As in the Peggie case, the ET rejected claims against the trans employee personally, finding that she had not harassed the Claimants.
Key Takeaways
Until further guidance is given (whether from the EHRC, the Government, or the appellate courts), this will remain a complex and difficult area for employers to navigate in practice, noting the need to balance the rights of employees in the workplace with different and sometimes competing protected characteristics (e.g. sex, religion or belief, and gender reassignment). These cases also highlight the importance of employers following their policies and procedures and properly documenting their evidence and the processes followed, even where there are difficult or contentious issues that provoke strong emotions at issue. Often, employers in this area are criticised by tribunals for procedural failings.
