A Tribunal has found an NHS Foundation Trust to have mishandled the competing needs and preferences of its staff. In light of the decision in Hutchinson and others v County Durham and Darlington NHS Foundation Trust, complaints of harassment related to sex and/or gender reassignment and indirect discrimination succeeded. Further complaints of harassment related to conduct and victimisation were dismissed.
What should employers consider when balancing the competing needs of their staff?
What were the complaints?
The case centred on the operation of the NHS Foundation Trust’s ‘Transition in the Workplace’ policy, which permits transgender staff to use the changing room of their choice, and which corresponds to their affirmed gender. One employee, a transgender female, was therefore permitted to use the female changing room, which was shared with up to 300 other members of staff.
In allowing the transgender employee to use the female change room, the Tribunal found that the Trust’s policy amounted to harassment related to both sex and gender reassignment against the other female users of the changing room, infringing their rights to privacy and bodily autonomy. Indirect discrimination was also found; it was agreed that women were statistically more likely to have experienced sex-based harassment and/or violence. In all the circumstances, allowing the transgender employee to use the changing rooms was not found to be a proportionate means of achieving the legitimate aim of respecting the gender identity of all employees.
The Tribunal upheld those claims on the basis that the Trust had not performed a proper assessment, consulted with staff or provided viable alternative solutions.
What is the role of the Tribunal?
In its judgment, the Tribunal was careful to iterate its function: a body to apply legal precedent to the findings of fact and evidence presented. They did so in the preamble of their judgement, acknowledging the wide public interest in the case and the division of societal views in relation to access to sex-segregated spaces. The Tribunal confirmed they were bound by the Supreme Court interpretation of biological sex and gender reassignment set out in For Women Scotland Ltd v Scottish Ministers:
“A person who is a biological man, i.e. who was at birth of the male sex, but who has the protected characteristic of gender reassignment is described as a ‘trans woman’. Similarly, a person who is a biological woman, i.e. who was at birth of the female sex, but who has the protected characteristic of gender reassignment is described as a ‘trans man’.”
It is important to clarify that the judgement did not rule that transgender inclusion is unlawful or that transgender employers must automatically be excluded from single-sex spaces.
Employers’ practical guide
Where claims were upheld, the Tribunal’s concern focused on how the NHS Foundation Trust did not adequately evaluate or balance the rights, needs and preferences of its staff body.
So, how can employers interpret the Tribunal’s decision as guidance for good practice?
- Robust assessment of facilities. Understand the layout of changing rooms and make decisions following on-site assessment visits to facilities, as opposed to ‘on paper’ decisions.
- Meaningful consultation. Collect the opinions of all affected staff where facilities are shared. Record and consider all concerns raised relating to dignity, privacy, religion, trauma, and safeguarding.
- Viable alternatives. Offering an alternative, private facility for the transgender employee would respect both the gender identity of that employee and respect the biological sex of other staff members.
- Neutral language. Keep conversation and correspondence professional and neutral. Avoid dismissive and moralistic language which could amount to unlawful harassment.
- Be balanced & proportionate. Weigh up practical options in light of the available facilities. Consider staff numbers, privacy measures, health & safety considerations and the needs and preferences of both transgender and cisgender staff.
- Review Policies. Proactively review related policies and record all steps relating to alternatives and concerns.
How can we help?
If you would like any support in understanding your position as an employer or conducting a policy review, please do not hesitate to contact the Nelsons Employment Team.
Alice Rose is an Associate in our expert Employment Law team.
She has a background and particular interest in the Education sector, including first tier tribunals and regulatory disputes. Alice provides advice on a wide range of contentious and non-contentious matters including unfair and constructive dismissal, discrimination claims, corporate due diligence and support, as well as general employment support including contracts, policy and procedural reviews and settlement agreements.
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If this article relates to a specific case/cases, please note that the facts of this case/cases are correct at the time of writing.