Transitioning male employee using women's work changing rooms was harassment, says Employment Tribunal

As has been widely reported, the County Durham and Darlington NHS Foundation Trust has lost a claim for harassment and indirect sex discrimination brought by seven female nurses -known as the Darlington Nurses - who complained that a male-to-female transitioning colleague (i.e. a biological man) was permitted to use women-only changing rooms. The judgment is 134 pages long and it is extremely complicated, but the essence of the case is:

1. The Trust was seeking to achieve what the Employment Tribunal noted was '…the admirable purpose of seeking to include transpeople in the workplace and make them feel included…', and it had a specific policy designed to achieve this, but;

2. It had gone about this purpose without considering its legal obligations correctly, particularly The Workplace (Health, Safety and Welfare) Regulations 1992 that require employers to provide suitable and separate changing facilities for men and women where they are needed, and the For Women Scotland judgment of the Supreme Court, which held that 'man' and 'woman' mean 'biological man' and 'biological woman' and gender reassignment does not change that.

3. The Trust's management's approach was summarised as '…a trans woman, was believed to have a legal right to use the female changing room and the female users of that room were (in substance) believed to have no legal right to object…', and there were no practical alternative facilities for those women. This was wrong in law and led to the findings against the Trust.

The upshot of this was that the Trust's policy, which led to women sharing changing rooms with a transition man despite their objections was found to be unlawful conduct by the employer that had the effect of creating a 'hostile, humiliating and degrading environment' for those nurses on the grounds of sex and gender reassignment, and it was also indirect sex discrimination. If the parties don't agree on how to resolve the matter between themselves, the Tribunal will decide the remedies at a later hearing. Not all claims succeeded and all claims failed against the employee who was the subject of the nurses' complaints.

Because this is a decision by an Employment Tribunal it doesn't set a precedent for other Employment Tribunals, but it clearly applied the Supreme Court's decision in For Women Scotland case. The take-away from this case is that it is important to treat all staff sensitively and to ensure that no one concerns are disregarded, and that specific legal obligations to provide single-sex areas are kept to, when balancing conflicting demands in the workplace.

CONTACT US

If you are an employer, or employee who needs guidance, we are here to help.  Please do not hesitate to contact our Employment Law Team on 
01522 814638, or make an enquiry here.