Tribunals revisit employers’ obligations in relation to single sex spaces

Two recent employment tribunal decisions (both from Scotland) have explored employers’ obligations under the Equality Act in relation to single sex spaces. In both cases, the facts arose before the Supreme Court’s decision in For Women Scotland was published (April 2025) but both tribunals were able to take it into account in their reasoning. While employment tribunal decisions are not legally binding on other tribunals, in the absence of any relevant decisions from the Employment Appeal Tribunal, these new rulings offer a useful indication of how tribunals could address similar disputes in the future.

The first decision to be published involved Ms B M Kelly, an engineer working for Leonardo UK Limited, a large defence contractor employing around 9,500 staff across the UK. She challenged a policy that her employer adopted from June 2023 which allowed trans staff to use the toilets which aligned with their gender identity. After raising a grievance which was not resolved to her satisfaction, she brought a number of claims including harassment related to sex and direct and indirect sex discrimination.

While legal proceedings were continuing, Lenardo made some changes to the toilet facilities which involved re-badging some of them as unisex facilities. Ms Kelly had a choice of toilet facilities she could use. She was aware of up to three trans women who used the female toilets regularly at the Edinburgh site where she worked. She argued that in the light of the Supreme Court’s decision her employer was required to provide toilet facilities that were exclusively for the use of biological women and accordingly Leonardo’s policy on the use of toilets was unlawful.

Ms Kelly’s claim was heard by an employment judge who dismissed all her complaints. The judge said that applying a biological interpretation of sex to any duty to control toilet access was “unworkable”. All that the relevant health and safety regulations required was the provision of “suitable and sufficient sanitary conveniences” and that any requirement to control access to these facilities must be limited to what was “reasonably practicable” for ensuring employees’ health safety and welfare.

In the light of this interpretation of the health and safety regulations, it was not surprising that the employment judge ruled that, on the particular facts of this case, the application of the toilet use policy did not result in harassment of Ms Kelly under the Equality Act. Her other claims were also dismissed.

The second ruling to be published was a decision of a full tribunal panel in a case involving Sandie Peggie, a nurse employed by the Fife Health Board. This time the dispute arose about the use of a female changing room (which included two toilet cubicles). While there were other changing facilities elsewhere on site, this one was most commonly used by A&E staff as it was more convenient. At the relevant time, the changing room was used by both the claimant and Dr Beth Upton, a trans woman who was also the second respondent in these proceedings.  She had been granted permission to use these facilities by the Health Board.

The incident giving rise to these proceedings happened on Christmas Eve 2023 when the claimant directly confronted Dr Upton over her use of these facilities and Dr Upton then made a complaint against Mrs Peggie.

Unlike the judge in the Kelly case, the Peggie tribunal did not consider the health and safety legislation in any detail. Instead, it approached matters on the basis that both Mrs Peggie and Dr Upton had rights based on different protected characteristics which needed to be balanced: Mrs Peggie based on the protected characteristic of sex, and Dr Upton based on the protected characteristic of gender re-assignment. Weighing up these respective rights it considered that its central task was to consider whether the permission given to Dr Upton to use the female changing room remained lawful once Mrs Peggie had raised her concerns.

It decided that the Health Board should have revoked this permission until their respective shift patterns could be re-organised to ensure that they were not rostered to work at the same time. In this context, it is not surprising that some (but not all) of Mrs Peggie’s claims for harassment relating to sex were upheld.

These cases had different outcomes, and apply different reasoning. However, what they both conclude is that the For Women Scotland ruling does not necessarily prevent employers from allowing trans staff access to the single sex facilities corresponding to the gender in which they present. Whether such permission could result in claims of sex-related harassment from biologically female staff will depend on the precise facts.

In the light of the continuing controversy over the legal effect of the For Women Scotland ruling, it is likely that at least one of these decisions will be appealed to the Employment Appeal Tribunal. Employers would certainly welcome clarification of their legal obligations in this context.