What was the case about? 

The issue at stake was whether trans women should use women’s toilets (in accordance with their asserted gender) or men’s toilets (in accordance with their biological sex) and similarly for trans men. 

In June 2023, Ms Kelly asked her employer whether there was a toilet access policy. The company said that access to toilet facilities was based on asserted gender identity rather than biological sex. Ms Kelly then asked for more details, including when this policy was introduced, whether it was going to be shared with staff and whether there was anything in writing. 

In February 2024, the head of inclusion and diversity reported that to prevent discrimination on the grounds of gender reassignment and to be inclusive, the choice of toilet should be an employee-led decision. This was ‘no specific toilet policy’ but rather this decision fell under their commitment to inclusion and diversity, 'as well as aligning with the law’.    

Ms Kelly raised a grievance in June 2024, claiming that this policy violated her privacy and dignity and safety as a woman. Her grievance was not upheld, and neither was her subsequent appeal. However, the hearing did recommend that the stairwell toilets be converted into universal single occupancy toilets to provide additional private facilities and this was done. 

Ms Kelly then bought multiple claims at tribunal, claiming the toilet access policy constituted harassment, direct discrimination, indirect discrimination and a breach of her human rights under the ECHR. 

The tribunal dismissed all her claims – an interesting decision in view of the For Women Scotland decision. Applying the FWS decision, as was reiterated by the EHRC guidance (subsequently withdrawn and new guidance awaited), it was assumed that single sex bathrooms were to be used by people of the same biological sex and not asserted gender. 

What does this case mean for bathroom provision for employees?

• There must be a sufficient number of separate facilities for men and women – but not all facilities have to be separate 

The Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide suitable and sufficient sanitary conveniences (Reg 20(1)). Conveniences are not suitable unless there are separate facilities for men and women, except where each convenience is in a separate lockable room (Ref 20(2)). The key to the description of this room is that the walls go from floor to ceiling. 

Ms Kelly argued that her employer had breached these regulations by introducing their toilet access policy. She argued that the policy effectively made the toilet facilities unisex. Her employer argued that the range of toilets it provided meant they had fulfilled the requirement to provide ‘suitable and sufficient’ toilets. Not all toilets needed to be suitable; there just needed to be a sufficient number. 

The judge ruled that the organisation had indeed provided enough suitable bathrooms to meet the duty under Reg 20(1).    

Interestingly, the judge also ruled that:

• A requirement to control access to suitable and sufficient facilities is limited to what is reasonably practicable for ensuring the health, safety and welfare and moral propriety between the sexes. 

The judge noted that it is not reasonably practicable to have such controlled access (either on the grounds of biological or certified gender) given that it is often hard to distinguish between sex and gender and hence the policy can be enforced. 

What about the discrimination claims?

Harassment – it was held that there was insufficient evidence that the policy had a practical effect upon Ms Kelly’s dignity or environment, so her harassment claim failed. The judge highlighted that she had continued to use the same toilets after the toilet access policy despite having access to individual lockable cubicles and hence there was little evidence that the definition of harassment under the EqA had been met. 

Direct discrimination – this also failed as the Judge held that Ms Kelly’s comparator was a male employee. The toilet access policy applied equally to men and women in the workplace and so, the judge argued, it could not reasonably be inferred that the policy was less favourable to women than to men.

Indirect discrimination – this also failed. Leonardo UK Ltd had applied a provision, criteria or practice when they applied the toilet access policy to the staff. However, the judge did not accept that it put women at a particular disadvantage at that particular work site – there was 'no quantitative or qualitative evidence that application of the toilet access policy meant women who worked there were at a greater risk of violence or sexual assault in the toilets in comparison with men'. If the disadvantage was proven, then it was minor and insignificant, and the toilet access policy was objectively justified as achieving a legitimate aim, e.g. inclusion in the workplace. 

Where does this leave us?

• Trans women may use women’s toilet facilities without it constituting sex discrimination of female employees.   
• A policy which requires a biological sex approach to toilet access may be unworkable in many cases.
• Organisations must provide sufficient suitable toilets for separate sexes as required by the Regulations, but not all their toilets need to be suitable.
• Employers (especially larger ones) who introduce any policy regarding toilet access must consult with employee representatives and complete equality impact assessments before launching such a policy. 

How should employers respond?

• Avoid knee-jerk reactions – something we say a lot in this area of law. Any changes must be assessed and considered and we would advise seeking specific legal advice.
• This is a first instance decision, which means other tribunals do not have to follow it. With different facts or different arguments, another tribunal may come to another decision.
• Assess your current provision of bathrooms, any current ‘policy and practices’ and any complaints or comments you may have had about either of these.
• Are all the bathrooms that you provide all suitable in accordance with the regulations, are only some suitable? If it’s the latter, are there sufficient suitable bathrooms? This means are there enough bathrooms where staff who want single sex (based on biology) can go where the cubicle walls go from floor to ceiling?
• If you want to change your practices for whatever reason, proceed with caution. If you are going to limit who uses what bathroom, consider whether that is reasonably practicable and how it is to be done. Ensure that you have consulted with employee representatives and assessed the impact of such a change.
• If staff are concerned about the current provision, ensure they are listened to, their concerns noted and a practical solution discussed. This approach is vital for creating an inclusive culture in any workplace and for reducing the risk of costly tribunal claims. 

For more information

This is a complex case and to some extent, it rose and fell on its facts and circumstances. For specific advice or further information on these issues, please contact me.