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Many organisations await the revised Equality and Human Rights Commission Code of Practice for Services, Public functions and Associations for guidance on how to approach single sex facilities in light of the ruling in For Women Scotland v The Scottish Ministers. In the meantime, the recent Employment Tribunal case, Hutchinson v County Durham and Darlington NHS Foundation Trust, gives employers some useful insights as to the competing legal risks arising in this area.
Background to the case
County Durham and Darlington NHS Foundation Trust (the “Trust”) required staff to change in and out of their uniforms on Trust premises, and the Trust provided male and female changing rooms for this purpose.
In the Trust’s “Transition in the Workplace” (TIW) policy it confirmed that transgender staff were permitted to use changing rooms corresponding with their affirmed gender, rather than their biological sex.
The TIW policy also stated that employees who did not wish to share the gender specific changing facilities should use “alternative facilities”. However, at these particular Trust premises, there were no such alternative facilities.
A group of female nurses raised multiple complaints when a transgender woman, (R), was permitted to use the female changing room.
The legal claims brought against the Trust by the group of female nurses
- Harassment related to sex and/or gender reassignment (26 Equality Act 2010). This head of claim was based on the Trust allowing R to change in the changing room and requiring the Claimants to change there too, and failing to take seriously the Claimants’ complaints about this, suggesting that they needed to be more broad-minded;
- Victimisation (section 27 Equality Act 2010) as a result of correspondence written to the nurses by the Trust management and the alleged behaviour of the trans employee; and
- Indirect sex discrimination (section 19 Equality Act 2010) on the basis that the practice of allowing access to single-sex changing rooms based on affirmed gender put women at a particular disadvantage.
The findings
The harassment claim was upheld. At the heart of the Tribunal’s findings was that the Claimants were put in a position where they were forced to share a changing room with a trans woman. This practice caused the Claimants distress and discomfort (albeit unintentionally) and the Tribunal found that it was reasonable for the practice to have had this effect – taking into account that the Claimants’ complaints about it went nowhere and they were instead instructed to broaden their mindset.
The indirect discrimination claim was upheld, on the basis that while the TIW policy applied equally to both men and women, women were statistically more likely to have experienced sex-based harassment and violence and therefore more likely to experience feelings of fear when required to change their clothes in front of the opposite biological sex. The Trust could not show that the TIW was objectively justified – it argued a legitimate aim of “sensitive balancing of competing rights” but could not show that R had a right to change in that changing room. Also, it had not appeared to act sensitively, and nor had it seemed to consider alternative solutions such as introducing lockable cubicles in the changing room (there were only toilet cubicles and shower cubicles behind curtains).
The victimisation claim was not upheld.
Practical takeaways for employers
A policy like the TIW policy (where trans men or women use the toilets or changing rooms of their assigned gender) carries the risk of harassment and discrimination claims, particularly where individuals are likely to feel that their privacy is at risk. Equally, excluding trans employees from single-sex facilities designated for their affirmed gender could carry the risk of harassment based on gender reassignment.
Employers can mitigate these risks by providing gender-neutral lockable rooms and/or consulting with employees on what works for them and trying to find a compromise where possible. In this case, the Trust did not appear to engage constructively with the Claimants’ concerns and appeared dismissive of them. It also did not consult with R on whether there was an alternative that she would have been happy with. Had it focused on attempts to balance the Claimants’ concerns with R’s, then the outcome might have been very different.
