You may have seen the recent cases of the Darlington nurses and the issue of who can use a female-only changing room and the misgendering of a colleague at Manchester University. The headline points are important. The law is important, as are the nuances of application. But just as important are the decisions that are made, which result in those headlines. This blog will focus on those decisions; what went wrong? What would you do instead? How can you ensure your organisation avoids those mistakes going forward? It’s not going to do a deep dive into the case details nor the intricacies of the law, but rather focus on the practical learning points for employers in this complex and sensitive area. 

Cases recap 

B Hutchingson and others v Durham and Darlington NHS Foundation Trust - Eight nurses brought claims against their employer NHS Trust, for requiring them to share a changing room with a trans woman. They claimed harassment and indirect discrimination and were successful in both claims.  

Sylvester v S Phillpson and others - An employee at Manchester University misgendered a colleague and subsequently brought a claim for harassment and discrimination on the grounds of disability following her treatment after the event. She succeeded in her claims for disability discrimination arising from her disability and indirect disability discrimination. 

Five key lessons

Lesson one: promptly respond to issues when they arise 

In both these cases, there was considerable delay in addressing the issues. In the Darlington nurses’ case, the nurses expressed concerns that a trans woman was using the female changing room - there was a ten-week delay before they were acknowledged. These are complicated issues and it’s important to avoid knee-jerk reactions; however, it’s key to respond to concerns, outline what process you are going to follow and keep those concerned in the loop. That’s different from making rash decisions without sufficient thought and preparation. Silence helps no one but often just allows unfair narratives to gain momentum and untrue narratives to fill the gap. 

Lesson two: be prepared to have difficult conversations 

In the Darlington case, when the initial concerns were raised in the summer of 2023, no member of the HR team spoke to any of the nurses who had raised a concern about the changing room. No one sought to understand the background or listen to the concerns. Instead, ‘feedback’ was given to the effect that if anyone was uncomfortable with using the changing room alongside a trans woman, they either had to accept it and continue to change alongside their colleague or change elsewhere. Realistically, the latter option meant in the toilet or shower cubicle. The nurses were left feeling they had not been heard and hence the issue escalated. 

Lesson three: don’t hide behind policies 

Policies are great – they provide clarity and a reference point. What they shouldn’t be is a defence for bad practice. In both cases, different policies were blamed for poor HR practices. In the Darlington case, it was the Transition in the Workplace policy (TIW); in Ms Sylvester’s case, it was the Dignity at Work and Study policy. The TIW policy was the reason given why no discussions were had firstly with the nurses about their concerns, or secondly regarding other provision for changing for either the nurses and/or their trans colleague. The Dignity at Work and Study policy allegedly justified Ms Sylvester being excluded from working with her team or even on the same floor as the colleague she had misgendered for months. In both cases, the tribunals found that the policies did not justify the treatment of the claimants. The staff applying them had failed to apply any sensitivity and be aware and alive to the implications of their actions on each party.  You can’t exercise your way out of a bad diet and similarly, you can’t use a good policy to justify bad choices and practices!

Lesson four: language counts 

ED&I training for all staff is vital in creating an inclusive and tolerant workplace. It’s a key part in employers meeting their duty to prevent sexual harassment in the workplace and providing the bedrock of the ‘reasonable steps’ defence to a discrimination claim under the Equality Act 2010. But the language used is key. For the Darlington nurses, the tribunal found that on raising their concerns, they were told that they “needed to be educated and broaden their mindset”. The tribunal found that this strengthened their feeling that they were not being listened to, their views not respected and their concerns ignored. Training is an opportunity to learn about and discuss other mindsets, other views, etc. (hence the need for training to be carried out sensitively) and it is important that staff are tolerant of each other. However, the wording used in this case was neither correct nor useful.  It was not correct because, as the tribunal found, it was the Trust and not the nurses who had behaved contrary to the law (both Equality Act and other Regulations) and it was not useful as it did not seek to find common ground and understanding of the position of both the nurses and their colleague. 

If you would like help with training, please do take a look at our  training products, and do get in touch if you would like to discuss them.   

Lesson five: good investigations are worth their weight in gold!

As we have said repeatedly throughout this blog and previous ones, these cases are complex and fact-specific and there are no easy answers or solutions. One thing, however, which is obvious from both cases, was the lack of thorough investigation and analysis of the situation. This was particularly stark in the misgendering case. There were basic errors which hindered the possibility of a fair investigation and an acceptable outcome right from the start: 

• appointing an investigator took two months;
• that investigator was already involved in the facts of the matter;
• no mediation or informal resolution proposed for months;
• the investigator did not interview witnesses to the incident of the mis gendering nor the ‘multiple’ occasions before that;
• Ms Sylvester was isolated from her team with no support and was forbidden from speaking with her line manager; and
• there was no discussion or acknowledgement of her disability during the investigation. 

Hindsight is a dangerous tool, but I would venture to say that had the investigation been carried out promptly by an unconnected individual who carried out a comprehensive review of all the alleged incidents of misgendering and the impact of Ms Sylvester’s disability on her behaviours then the outcome might have been different. Whilst it was accepted that the misgendering had occurred and was witnessed on that occasion, it was not clear whether this was a repeated behaviour and whether it was arising from her disability. A better run investigation may have looked into those things more efficiently, considered whether the temporary measures applied to Ms Sylvester’s working patterns were reasonable and come to a different, or at the very least, more nuanced and informed conclusion. 

In our portfolio of training products, we have a day of interactive training on running a successful and effective investigation and disciplinary process. Please get in touch if you would like to discuss this.   

Next steps

These cases underline that even well‑intentioned organisations can get themselves into difficulty when they avoid difficult conversations, hide behind policies, or fail to investigate properly. None of the issues raised were impossible to navigate, but small missteps compounded into big problems. The real lesson for employers is simple: listen early, act proportionately, communicate clearly, and approach sensitive matters with sincerity rather than defensiveness. Do that, and you not only reduce legal risk, but you also build a workplace where people feel respected, understood and safe to raise concerns before they escalate.