Policy considerations after Hutchinson and others v County Durham and Darlington NHS Foundation Trust

The Employment Tribunal (the “ET”) recently issued a 134-page judgment in the case of Hutchinson and others v County Durham and Darlington NHS Foundation Trust. While not a binding precedent for other Employment Tribunals, the decision provides a useful indication of how the ET may approach questions surrounding employer policies that allow transgender employees to use bathroom facilities which correspond to their affirmed gender, regardless of biological sex.

The case

This case was brought to the ET by eight nurses employed by County Durham and Darlington NHS Foundation Trust (the “Trust”). Although each nurse submitted a separate claim, all were heard together. Due to the ill health of one claimant, the ET proceeded with the remaining seven claims.

Each of the claimant nurses raised concerns in respect of the Trust’s ‘Transition in the Workplace’ policy. In this policy, transgender staff were permitted to use the changing room that corresponds to their affirmed gender, regardless of biological sex. The claimants alleged that, by implementing this policy, the Trust had contravened the Equality Act 2010, specifically provisions prohibiting harassment related to a protected characteristic and indirect discrimination.

In their judgment, the ET made it plain that it was ‘expressing no wider commentary or views beyond having to adjudicate on the cases before us’. The ET also noted that it was bound by the Supreme Court’s 2025 decision in For Women Scotland Ltd v Scottish Ministers, quoting:

“A person who is a biological man, i.e. who was at birth of the male sex, but who has the protected characteristic of gender reassignment is described as a ‘trans woman’. Similarly, a person who is a biological woman, i.e. who was at birth of the female sex, but who has the protected characteristic of gender reassignment is described as a ‘trans man’.”

Harassment related to a protected characteristic

The ET first examined whether the conduct of the Trust in having and/or implementing the policy amounted to harassment related to a protected characteristic.

In its judgment, the ET noted that the claimants were required to share changing room facilities with a ‘biological male trans woman.’ This was compounded by the absence of suitable alternative facilities. The ET further found that the Trust had not taken the claimants’ earlier complaints (raised in 2023 and 2024) seriously and had declined to address these concerns.

In reaching its conclusions, the ET found that the Trust had engaged in unwanted conduct related to gender reassignment and/or sex which had the effect of violating the dignity of the claimants and of creating for them a hostile, humiliating and degrading environment. It therefore followed that the Trust had acted in breach of section 26 of the Equality Act 2010, having subjected the claimants to harassment.

Indirect discrimination

The ET then turned to consider the claims of indirect sex discrimination, examining whether the Trust had applied a provision, criterion, or practice (“PCPs”) that put employees of a particular sex at a disadvantage, as prohibited under section 19 of the Equality Act 2010.

It was determined that two of the PCPs identified placed women (defined, as before, as persons assigned female at birth) at a greater disadvantage. The PCPs were:

1. The Trust gave staff access to single-sex changing rooms on self-declared gender identity
2. The Trust prioritised the perceived rights of transgender employees to use changing facilities based on their self-declared gender identity over the rights of other employees to have use of a single-sex facility.

The existence of a disadvantage was reasoned on the basis that ‘women would be more likely to experience feelings of distress, fear or humiliation by being required to share a communal changing room with a member of the opposite sex which involves exposure of their bodies’.

Although the ET accepted that the Trust was pursuing legitimate aims in implementing the PCPs, it found the measures adopted were not proportionate:

“In balancing the discriminatory effect of the PCP against the reasonable needs of the Trust to respect the gender identity of its employees, it is relevant to consider whether a lesser measure was also available to the Trust. A lesser measure clearly was available. This was to provide Rose, the only transgender employee using the female changing room with alternative, suitable and dignified facilities in which to comply with the Trust’s Uniform policy. In our judgement, this would have respected Rose’s gender identity and would have respected the biological sex of the Claimants. It would achieve equal respect for both characteristics. It is a fallacy that in order rightfully to respect Rose’s rights Rose must be given access to the female changing room.” [para 437]

Consequently, the Trust was held to have committed indirect discrimination in contravention of section 19 of the Equality Act 2010.

The ET, however, found that claims of harassment relating to the use of the female changing room by, and the conduct of, Rose Henderson both inside and outside the changing room, as well as all claims of victimisation, were unfounded.

Implications for employers

This decision highlights the care employers must take when drafting and implementing workplace policies to ensure they do not give rise to harassment or indirect discrimination claims. It also serves as a practical reminder of the importance of listening to employee concerns and undertaking proper and timely assessments of those concerns in order to mitigate the risk of future litigation.

If you have any questions about how this decision may affect your workplace or if you need assistance in handling an employment claim, please do contact a member of our Employment team.