Did the use of NHS changing room by transgender woman give rise to claims for harassment and/or indirect discrimination?
Did the use of NHS changing room by transgender woman give rise to claims for harassment and/or indirect discrimination?
In the case of Hutchinson and others v County Durham and Darlington NHS Foundation Trust 2024, the Employment Tribunal considered whether the Trust’s policy of allowing staff to use changing rooms of their choice which corresponds with their affirmed gender amounted to unlawful harassment and indirect sex discrimination.
Background
The Trust operated a uniform policy which prohibited staff from wearing their uniforms to or from work and were required to change, using the changing facilities provided, at work.
The Trust also had a Transition in the Workplace policy allowing transgender staff to use the changing room of their choice, which corresponded with their affirmed gender. If staff did not want to share gender specific facilities, then the policy required them to use alternative facilities.
One member of staff, Rose Henderson, was a biological male who identified as female. Rose Henderson was permitted to use the female changing room.
Eight female nurses objected to using communal female changing facilities with a colleague who was biologically male. They raised their concerns initially informally and subsequently through a formal grievance process, but they were not upheld. They, therefore, brought claims for harassment and indirect sex discrimination.
Employment Tribunal decision
The Tribunal held that the requirement for female nurses to share changing facilities with trans women, who were biologically male, amounted unwanted conduct related to sex and/or gender reassignment, which had the effect of violating their dignity and created a hostile, intimidating, humiliating and degrading environment. They therefore succeeded in their claim for harassment.
Furthermore, the provision, criterion or practice (PCP) of permitting access to single-sex changing facilities based on asserted gender identity, and the PCP of prioritising the use of single-sex facilities by transgender employees to align with their identity over the rights of other employees, put women at a particular disadvantage compared to men. Women were more likely than men to experience distress or humiliation when undressing in communal areas shared with a member of the opposite biological sex. The Trust could not demonstrate that the approach was a proportionate means of achieving a legitimate aim (i.e. the statutory defence) and, as such, the claim for indirect sex discrimination succeeded.
Learning Outcome
Whilst this is an employment tribunal decision, and is not therefore binding authority, and whilst each tribunal case will be determined on the individual facts of each case, this case shows the change in direction in application of the law following the landmark decision of For Women Scotland. It also acts as a reminder to employers that one set of rights for one group of employees, does not automatically override another for another group, and the need to deal with complaints in a sensitive and meaningful manner.
If you’d like advice tailored to your situation, contact Nicola Cockerill on 0800 915 7777 or email nc@kilgannonlaw.co.uk.
