Ms B Hutchinson and Others v County Durham and Darlington NHS Foundation Trust: 2501192/2024 and Others

In this case, an Employment Tribunal (“ET”) found that the Respondent’s policy to allow a biologically male trans female employee to use their preferred changing facilities amounted to unlawful harassment and indirect sex discrimination.

The Respondent operates a uniform policy which mandates that staff change into and out of their uniforms at work. It provides male and female changing rooms, and, according to its Transitioning in the Workplace Policy (the “TIW policy”), it allowed transgender employees to use the changing room of their preference. Staff who were not comfortable sharing the changing rooms with transgender employees were directed to use alternative facilities (although these were not available).

In 2023, concerns were raised with the Respondent about the use of the female changing rooms by a biologically male trans woman, including about a perceived risk to the privacy and safety of female nurses. The Respondent’s response to these concerns was “in essence that they had to accept the fact that a trans woman was using the female changing room because of NHS inclusiveness”. A number of female Claimants brought ET claims alleging harassment relating to sex and/or gender assignment, victimisation and indirect sex discrimination.

The ET upheld the indirect sex discrimination and harassment claims in part, but rejected the victimisation claim.

It decided that the Respondent had engaged in unwanted conduct relating to sex and gender reassignment and therefore subjected the Claimants to harassment by:

• requiring the Claimants to share a changing room with a biologically male trans woman in accordance with its TIW policy, without providing alternative facilities;

• not taking the Claimants’ concerns about the TIW policy seriously and declining to address the Claimants’ concerns, suggesting they needed to be educated.

This amounted to a pattern of conduct which had the effect of violating the Claimants’ dignity, and creating a hostile, humiliating and degrading environment.

The ET found that the Respondent had subjected the Claimants to indirect sex discrimination by prioritising the “perceived rights of transgender employees to use changing facilities based on their self-declared gender identity over the rights of other employees to have use of a single-sex facility”. This put the Claimants at a disadvantage compared to men, as they would be more likely than men to feel or apprehend fear, distress and/or humiliation when changing in front of a member of the opposite sex. It decided that the Respondent had breached the Workplace (Health, Safety and Welfare) Regulations 1992, and infringed the Claimants’ right to respect for their private life, and had not shown that its practices were a proportionate means of achieving legitimate aims.

This case demonstrates the need for employers to be mindful of the difficulty of this subject and the sensitive handling it requires, not least (as this judgment shows) the balancing act between conflicting protected characteristics. Employers should take care to make sure their policies are in line with legal requirements, whilst also making sure they demonstrate a fair and balanced approach to various protected groups. Given this is an ET decision, it is not binding on other tribunals who may reach a different decision on similar facts. Until there is an appellate decision on this particular topic, there is no further legal clarity for employers in relation to changing rooms and other facilities following the Supreme Court’s For Women Scotland decision.