Background to the issue
The County Durham and Darlington NHS Foundation Trust (the “Trust”) required uniformed staff to change on site, providing separate male and female changing rooms. Its Transition in the Workplace (“TIW”) policy allowed transgender employees to use the changing facilities aligned with their asserted gender identity. However, staff who did not wish to share gender-specific facilities with transgender colleagues were told to use alternative facilities, which did not actually exist.
Tribunal findings on harassment
Several female nurses (the “Claimants”) challenged this TIW policy, claiming harassment and indirect sex discrimination. The employment tribunal found that the Trust’s approach, namely permitting a trans-woman to use the female changing room without offering suitable alternative facilities, amounted to harassment related to sex and gender reassignment. The Trust had also failed to take seriously and address the nurses’ concerns, instead suggesting that they needed to be more open-minded about trans rights, all of which violated the Claimants’ dignity and contributed to a hostile and degrading environment.
Tribunal findings on indirect sex discrimination
The tribunal also ruled that the policy resulted in indirect sex discrimination. By applying the provision, criterion or practice (“PCP”) of allowing access to single-sex changing rooms based on self-declared gender identity and ultimately prioritising the rights of transgender employees over other non-transgender employees, the Trust put women at a particular disadvantage compared to men, as evidence showed women were more likely to feel fear or distress when getting changed in front of the opposite sex. The Trust could not justify its policy as a proportionate means to achieve a legitimate aim.
Outcome and Implications for Employers
Following the Supreme Court’s decision in For Women Scotland, the Trust withdrew its policy and introduced separate facilities for transgender staff. The tribunal’s judgment in Hutchinson and others v County Durham and Darlington NHS Foundation Trust reinforces the need for employers to carefully review workplace policies relating to single sex spaces and gender identity, ensuring that the needs of all employees are considered and that appropriate facilities are available.
You can read more of the Newcastle Employment Tribunal’s decision here: Hutchinson and others v County Durham and Darlington NHS Foundation Trust ET/ 2501192/24 and others (14 January 2026)
If you would like to discuss anything contained in this blog or help with reviewing your policies, please contact a member or the Employment team.
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