Was an employer’s policy to permit transgender staff to use female-only changing rooms discriminatory? | The Indicator Podcast

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While not binding, this employment tribunal case is a useful example as to how an employer needs to be careful not to prioritise the rights of one protected group over those of another when drafting and enforcing polices. In this particular case, the competing rights were that of transgender staff and biological females who, by virtue of a uniform policy, were expected to share a changing room. Listen along to find out what happened!

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Today in the Lefebvre HR and Employment Law podcast we're discussing the judgment in the case of Hutchinson and others and County Durham and Darlington NHS Foundation Trust in which the Employment Tribunal was asked to determine a claim by a group of female nurses who had objected to being required by their employer to share the female changing room with a transgender colleague who was biologically male. The case involved H and several other female nurses who brought claims against their employer, an NHS trust, regarding the operation of its uniform and transitioning in the workplace policies under which transgender staff are permitted to use the changing room of their choice and which corresponds with their affirmed gender. Under the uniform policy, staff who wear uniforms are not permitted to wear their uniforms to work or to leave work wearing their uniforms. Instead, they must change into and out of uniform at work. To facilitate this, the employer provides changing facilities. One of its employees, R, a transgender woman who is biologically male but identifies as female and holds the protected characteristic of gender reassignment, was permitted to use the female changing room. A number of female nurses raised objections but the employer refused to amend its policies. The nurses claimed that by permitting R to use the female changing room the employer indirectly discriminated against biological females and that the operation of the transitioning in the workplace policy amounted to harassment related to sex and or gender reassignment. In addition, they claimed that certain aspects of R's conduct inside and outside the changing room amounted to sexual harassment. Although the tribunal dismissed the complaints related to the conduct of R, it upheld the nurse's claims of harassment related to sex and or gender reassignment and indirect discrimination. In reaching its decision, the tribunal noted that the Equality Act must be interpreted in light of the Supreme Court's decision in For Women Scotland, which established that references to sex, men and women referred to biological sex and did not include a transgender person's acquired gender. In addition, the reference to men and women in the Workplace Health, Safety and Welfare Regulations 1992, which govern the provision of toilets and changing facilities in the workplace, must be interpreted consistently with the definitions within the Equality Act. The 1992 Regulations provide that where changing facilities are needed, because workers wear special clothing and cannot, for reasons of health or propriety, be expected to change in another room, suitable separate facilities for men and women should be provided. The tribunal found that the nurses had no option but to share the changing room with R because there were no alternative facilities. Therefore, in permitting R to use the female changing room, the employer was in breach of the regulations. Despite what the tribunal referred to as the admirable purpose of seeking to include transgender staff in the workplace, the implementation of the transitioning in the workplace policy, which effectively required the nurses to share with R, had the effect of violating the dignity of the nurses and of creating for them a hostile, humiliating and degrading environment. This, the tribunal held, was unwanted conduct related to sex and or gender reassignment. In addition, the failure to take the nurses' concerns seriously and the initial response which was to inform them that they had to be educated on trans rights and broaden their mindset was driven by attitudes towards gender reassignment and biological sex, and the perception of the employer as to the primacy of one group's rights, i.e. those with the protected characteristic of gender reassignment, over that of another, i.e. the biological sex of the women. In relation to the nurse's indirect sex discrimination claims, the tribunal considered the employer's provision, criterion or practice (PCP) of: 1) giving staff access to single-sex changing rooms on the basis of self-declared gender identity, and 2) prioritising the perceived rights of transgender employees to use changing facilities based on their self-declared gender identity over rights of other employees to have the use of a single-sex facility, on the face of it, applied equally to both men and women. However, the Tribunal found that they placed women at a disadvantage, since the tribunal heard evidence that women are more likely to experience feelings of distress, fear or humiliation when required to share a communal changing room with a member of the opposite sex, which involves exposure of their bodies. As a consequence, breaches of modesty norms and violations of dignity have greater consequence for females than males. The tribunal concluded that the PCPs were not a proportionate means of achieving the employer's legitimate aims, that is, of sensitively balancing the competing rights of its employees in the workplace and respecting the gender identity of all its employees, and therefore could not be justified. This decision does not create a legally binding precedent, and employers will need to wait for a decision from the Employment Appeal Tribunal to clear up the uncertainty as to how they should in practice approach the delicate balance of the differing protected characteristics of their staff when considering the provision of toilet and changing facilities. Look out for further episodes in this series to stay up to date on all things HR and employment law related.

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Transcription

Speaker #0
Today in the Lefebvre HR and Employment Law podcast we're discussing the judgment in the case of Hutchinson and others and County Durham and Darlington NHS Foundation Trust in which the Employment Tribunal was asked to determine a claim by a group of female nurses who had objected to being required by their employer to share the female changing room with a transgender colleague who was biologically male. The case involved H and several other female nurses who brought claims against their employer, an NHS trust, regarding the operation of its uniform and transitioning in the workplace policies under which transgender staff are permitted to use the changing room of their choice and which corresponds with their affirmed gender. Under the uniform policy, staff who wear uniforms are not permitted to wear their uniforms to work or to leave work wearing their uniforms. Instead, they must change into and out of uniform at work. To facilitate this, the employer provides changing facilities. One of its employees, R, a transgender woman who is biologically male but identifies as female and holds the protected characteristic of gender reassignment, was permitted to use the female changing room. A number of female nurses raised objections but the employer refused to amend its policies. The nurses claimed that by permitting R to use the female changing room the employer indirectly discriminated against biological females and that the operation of the transitioning in the workplace policy amounted to harassment related to sex and or gender reassignment. In addition, they claimed that certain aspects of R's conduct inside and outside the changing room amounted to sexual harassment. Although the tribunal dismissed the complaints related to the conduct of R, it upheld the nurse's claims of harassment related to sex and or gender reassignment and indirect discrimination. In reaching its decision, the tribunal noted that the Equality Act must be interpreted in light of the Supreme Court's decision in For Women Scotland, which established that references to sex, men and women referred to biological sex and did not include a transgender person's acquired gender. In addition, the reference to men and women in the Workplace Health, Safety and Welfare Regulations 1992, which govern the provision of toilets and changing facilities in the workplace, must be interpreted consistently with the definitions within the Equality Act. The 1992 Regulations provide that where changing facilities are needed, because workers wear special clothing and cannot, for reasons of health or propriety, be expected to change in another room, suitable separate facilities for men and women should be provided. The tribunal found that the nurses had no option but to share the changing room with R because there were no alternative facilities. Therefore, in permitting R to use the female changing room, the employer was in breach of the regulations. Despite what the tribunal referred to as the admirable purpose of seeking to include transgender staff in the workplace, the implementation of the transitioning in the workplace policy, which effectively required the nurses to share with R, had the effect of violating the dignity of the nurses and of creating for them a hostile, humiliating and degrading environment. This, the tribunal held, was unwanted conduct related to sex and or gender reassignment. In addition, the failure to take the nurses' concerns seriously and the initial response which was to inform them that they had to be educated on trans rights and broaden their mindset was driven by attitudes towards gender reassignment and biological sex, and the perception of the employer as to the primacy of one group's rights, i.e. those with the protected characteristic of gender reassignment, over that of another, i.e. the biological sex of the women. In relation to the nurse's indirect sex discrimination claims, the tribunal considered the employer's provision, criterion or practice (PCP) of: 1) giving staff access to single-sex changing rooms on the basis of self-declared gender identity, and 2) prioritising the perceived rights of transgender employees to use changing facilities based on their self-declared gender identity over rights of other employees to have the use of a single-sex facility, on the face of it, applied equally to both men and women. However, the Tribunal found that they placed women at a disadvantage, since the tribunal heard evidence that women are more likely to experience feelings of distress, fear or humiliation when required to share a communal changing room with a member of the opposite sex, which involves exposure of their bodies. As a consequence, breaches of modesty norms and violations of dignity have greater consequence for females than males. The tribunal concluded that the PCPs were not a proportionate means of achieving the employer's legitimate aims, that is, of sensitively balancing the competing rights of its employees in the workplace and respecting the gender identity of all its employees, and therefore could not be justified. This decision does not create a legally binding precedent, and employers will need to wait for a decision from the Employment Appeal Tribunal to clear up the uncertainty as to how they should in practice approach the delicate balance of the differing protected characteristics of their staff when considering the provision of toilet and changing facilities. Look out for further episodes in this series to stay up to date on all things HR and employment law related.

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