Harassment and indirect sex discrimination arising from access to single-sex changing facilities

Background

In the case of Hutchinson and others v County Durham and Darlington NHS Foundation Trust, seven female nurses and healthcare staff brought claims under the Equality Act 2010 arising from the Trust’s operation of its uniform policy and its Transitioning in the Workplace policy. The policies required uniformed staff to change at work and permitted transgender staff to use changing facilities corresponding with their affirmed gender.

The claimants objected to being required to use a communal female changing room alongside a trans woman colleague who was biologically male. They raised concerns informally from summer 2023 and later through a collective written complaint. Those concerns were not substantively addressed, and the Trust’s response focused on reinforcing its existing policy and providing temporary alternative facilities for the complainants.

Tribunal decision

The Tribunal found that the Trust’s requirement that the claimants share the female changing room amounted to unwanted conduct related to sex and gender reassignment, which had the effect of violating their dignity and creating a hostile and degrading environment.

The Tribunal also upheld claims of indirect sex discrimination. It accepted that policies allowing access to single-sex changing rooms based on self-declared gender identity, and prioritising that access over the concerns of other staff, placed women at a particular disadvantage. Women were found to be more likely than men to experience fear, distress or humiliation when required to undress in communal facilities shared with a member of the opposite biological sex. The Trust failed to show that its approach was a proportionate means of achieving a legitimate aim, particularly given the availability of less intrusive alternatives.

Claims of victimisation and allegations of harassment based on the trans colleague’s individual conduct were dismissed.

Learning points for employers

This is a first instance decision so it is not binding on other Tribunals. Nevertheless, the decision underlines the importance of carefully assessing how workplace policies operate in practice, particularly where they affect privacy, dignity and single-sex facilities. Employers should avoid assuming that one set of rights automatically overrides another, and should be prepared to consider pragmatic, lawful alternatives that respect all protected characteristics. Early engagement with concerns, meaningful dialogue, and a willingness to review policy impact are critical to managing risk and maintaining trust.

For more information or advice, please contact Alice Mennell in our Employment team.