Imagine this.
Your organisation has an inclusion policy that allows staff to use single sex changing rooms based on their asserted gender. Several female employees raise concerns about privacy and dignity, but your managers shut down the conversation and say that the policy must be followed. Months later, grievances escalate into tribunal claims.
In Ms B Hutchinson and others v County Durham and Darlington NHS Foundation Trust, an employment tribunal addressed whether that approach exposes employers to legal risk.
What happened?
The employer operated a policy that permitted staff to access female changing rooms based on self-identified gender, rather than biological sex.
A group of female employees raised concerns after a colleague who was biologically male, but identified as female, used female-only changing facilities. The claimants said this caused them distress and discomfort and that they felt unable to challenge the situation for fear of being labelled discriminatory.
They brought claims including harassment related to sex and indirect sex discrimination, arguing that the policy disadvantaged women by removing female-only spaces and failing to protect their privacy and dignity.
What did the tribunal decide?
The Employment Tribunal upheld key elements of the claims. It found that the Trust’s policy and its handling of the situation amounted to harassment and indirect sex discrimination against the female employees.
This is a first-instance Employment Tribunal decision, meaning it is fact-specific and not binding precedent, but it is still a clear warning sign for employers with similar policies.
Why did it make that decision?
The tribunal focused on how the policy operated in practice, not just its intention.
The policy was treated as a provision, criterion or practice (PCP) that effectively removed female-only changing facilities.
That PCP placed women at a particular disadvantage compared with men, engaging indirect sex discrimination.
- While the Trust argued it was pursuing legitimate aims, inclusion and dignity for trans staff, the tribunal found it had not shown the approach was proportionate.
- Crucially, the employer failed to properly consider less intrusive alternatives, such as separate or gender-neutral facilities.
- The tribunal also criticised the Trust’s response to complaints, finding that women’s concerns were minimised or shut down, which contributed to the harassment finding.
What should you do now?
- Audit single-sex spaces (changing rooms, toilets, showers): what policies exist and how do they work in reality?
- Document your legitimate aims clearly and test whether your approach is genuinely proportionate.
- Consider practical alternatives, such as additional private or gender-neutral facilities, rather than an either/or model.
- Train managers to handle complaints sensitively and lawfully.
- Review dignity and inclusion policies together, not in silos, so competing rights are properly balanced.
What should you not do?
- Do not assume that inclusion goals automatically justify removing sex-based protections.
- Do not treat objections as misconduct rather than protected concerns.
- Do not forget to consult affected staff before implementing policies.
