Employment tribunal ruling on use of NHS changing rooms by trans woman: Legal comment

Last Friday, the employment tribunal handed down its long-awaited judgment in Hutchison & others v County Durham and Darlington NHS Foundation Trust, the latest high-profile case relating to the use of single-sex facilities by trans employees in the workplace.

These claims were brought by eight female employees of the trust, who alleged that its policy of permitting trans women to use the female changing facilities amounted to unlawful discrimination against them.

There has been much debate about the legal effect of the Supreme Court decision in For Women Scotland (FWS) and whether trans members of staff should be permitted to use their preferred facilities.

Following the Supreme Court judgment, the Equality and Human Rights Commission issued an interim update that required toilets and changing facilities to be delineated by biological sex. This interim update came under criticism and was subsequently withdrawn. There have been recent employment tribunal decisions (such as in Peggie v NHS Fife and B M Kelly v Leonardo UK Ltd) that concluded it could, in some circumstances, be lawful for trans employees to use their preferred facilities.

The ’Hutchison’ judgment reached a different conclusion. The employment tribunal concluded in this case that the trust’s policy permitting trans employees to use their preferred facilities amounted to unlawful harassment and indirect sex discrimination of the eight female claimants. The decision rests on the tribunal’s finding that it is not lawful as a matter of principle for trans staff to use their preferred changing facilities in the wake of FWS as well as the Workplace (Health, Safety and Welfare) Regulations 1992, which governs provision of toilets and changing facilities in the workplace. Having reached that conclusion, it followed that the trust’s policy discriminated against the claimants.

Last month, a different tribunal in the high-profile Peggie v NHS Fife case reached the opposite conclusion on these questions of law. That tribunal concluded that it could in principle be lawful for a trans woman to use a female changing room and that the 1992 regulations were not of any assistance in determining an employment tribunal claim.

Employment tribunals will often reach different decisions on similar sets of facts. This is not what has happened here and instead the two employment tribunals have reached opposing conclusions on whether trans employees can use preferred facilities as a matter of legal principle.

None of the recent employment tribunal judgments on this subject create binding legal precedent, but these two conflicting decisions illustrates the lack of certainty in what the law requires in respect of changing rooms and other facilities in the wake of the FWS decision.

It is unlikely that employers will have clarity anytime soon. There has been no appetite so far from the government to intervene and clarify the law, and there have been well-publicised delays in the publication of the updated ECHR Code of Practice on single-sex spaces. This guidance will be aimed at service providers, public functions and associations, so it remains to be seen how useful it will be for employers.

Any clarity will need to come from the Employment Appeal Tribunal. The Peggie judgment is being appealed, and it seems likely that last week’s judgment will also be appealed. There is a significant backlog at the EAT which means that it could take as long as 18 months for any appeal decisions to be published, unless these cases can be expedited.

In the meantime, employers and employees are left in the highly challenging situation of making sensitive and very personal decisions without clarity from the courts as to what the law requires.

We recommend that any employers facing this situation take specialist legal advice on the best way to manage risk and navigate through an extremely complex and fact-sensitive area.