Hutchinson and others v County Durham and Darlington NHS Foundation Trust

Case Update

The recent decision in the case of Hutchinson and others v County Durham and Darlington NHS Foundation Trust, brings into focus the importance of balancing employee rights and careful consideration of policies applicable to the workforce. 

Background Facts 

In this case, the claimants were a group of female nurses employed by County Durham and Darlington NHS Foundation Trust, mainly working in the Day Surgery Unit at Darlington Memorial Hospital. Staff employed at the hospital, including the claimants, used a female staff changing room provided by the Trust to change into and out of their work uniform at the hospital. The Trust operated a “Transition in the Workplace” policy that permitted transgender staff to use the single-sex changing room corresponding to their affirmed gender.  In accordance with this policy, one transgender employee, Rose Henderson, a biological male who identifies as female, was permitted by the Trust to use the female staff changing room provided.   

The claimants objected to sharing the female changing room with their transgender colleague. They said this violated their privacy, dignity and made them feel uncomfortable when changing their clothing.  The claimants complained formally to the Trust, explaining the distress and discomfort they experienced by being required to change in the same space as a biological male. The Trust declined to change its policy, and the claimants brought claims against the Trust for harassment related to sex and gender reassignment and indirect sex discrimination. 

Decision of the Tribunal 

The Tribunal upheld the claimants claims under the Equality Act 2010, finding that:- 

• • the Trust had subjected the nurses to harassment by its actions and their policy, particularly by requiring them to share facilities without providing appropriate alternatives and not taking the claimants concerns seriously; and 
  • the Trust’s actions and policy met the threshold of harassment in so far as it had the effect of violating the dignity of the claimants and created a hostile, intimidating, humiliating and degrading environment.   

What does this mean for employers? 

Whilst this is only a first tier Employment Tribunal decision, which means that it may not be binding on other Tribunals, and may of course be subject to appeal, it does suggest that employers ought to carefully review any policies relating to gendered facilities such as changing rooms, showers and toilets. It seems there is a need for clear balanced policies on competing rights, particularly in respect of gender reassignment and sex, diversity and inclusion, which can be difficult for employers to get right, as demonstrated in this case.  

Policies therefore need to be carefully drafted and tailored to the particular workforce, and be proportionate and based on evidence so that they can be justified. Employers need to be ready to demonstrate that any policy or measure in place is a proportionate means of achieve a legitimate aim, and not just well-intended.   

Employers across sectors, especially in public services, healthcare, and any setting with gender-segregated facilities, would be well advised to audit existing policies, assess legal compliance, and consider whether current practices could lead to similar claims. HR, with legal support, can then ensure that policies and practices are both legally compliant but also promote an inclusive, respectful workplace. 

The employment team here at Glaisyers specialise in all such discrimination claims and can assist in preparing appropriate policies tailored to your business. If you need any support with this, or any other employment related matter, please contact the team.