Two Tribunal Decisions, Two Different Outcomes: What Employers Need to Know About Single Sex Facilities and Trans Inclusion

These issues have been brought into sharper focus by the Supreme Court’s decision on 16 April 2025 in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16, which confirmed that the legal definition of “woman” is grounded in biological sex. Two recent Employment Tribunal decisions Hutchinson and Others v County Durham and Darlington NHS Foundation Trust (2501192/2024 & others, judgment dated 16 January 2026) and Sandie Peggie v Fife Health Board & Dr Beth Upton (4104864/2024, judgment dated 8 December 2025), underscore how seemingly similar scenarios can reach very different legal outcomes, depending on the policy framework, evidential findings, and the employer’s handling of concerns.

1. Hutchinson: Substantive Breach of Women’s Rights

Let’s begin with the most recent development. In Hutchinson, eight female nurses successfully argued that their Trust’s requirement to share a female‑only changing room with a transgender colleague violated their rights to privacy, dignity and workplace safety.

The Tribunal found:

• The Trust’s decision to allow a biologically male transgender colleague to use the female‑only changing room without providing a suitable alternative amounted to harassment related to sex and gender reassignment.
• The nurses were harassed because their concerns were minimised, dismissed, and met with suggestions that they needed to “broaden their mindset”, and when alternatives were eventually offered, they were inadequate and unsuitable.
• The Trust had acted unlawfully, breaching workplace health and safety duties by failing to provide appropriate single‑sex facilities for female staff.
• The Tribunal upheld the complaints of indirect sex discrimination, finding that the employer’s policy placed female staff at a particular disadvantage compared with male staff. It identified two relevant Provision, Criterion or Practice (“PCP”).The first was the practice of granting access to single‑sex changing rooms based on self‑declared gender identity. The second was the employer’s approach of prioritising the perceived rights of transgender employees to use facilities aligned with their gender identity over the rights of other employees to single‑sex spaces. Although these PCPs were, on their face, applied equally to men and women, the Tribunal concluded that they nevertheless had a disproportionate impact on women. Female staff were more likely than male staff to experience distress, fear, or humiliation when required to share communal changing facilities with someone of the opposite biological sex. The Trust was unable to demonstrate that these PCPs were objectively justified, and the claim of indirect sex discrimination therefore succeeded.
• Complaints of victimisation were dismissed.
• Importantly, the transgender colleague was not found to have personally harassed anyone, the failing lay entirely with the Trust’s policy decisions and conduct.

2. Peggie: Policy Lawful, Process Unlawful

Nearly 6 months after the Supreme Court’s ruling of 16 April 2025, which confirmed that the legal definition of a woman is grounded in biological sex, the Tribunal had taken a different approach. In Peggie v Fife Health Board, it held that allowing a trans woman, Dr Upton, to use the female changing room was not in itself discriminatory. Instead, the employer’s liability arose from its flawed handling of the situation and the procedural failures in managing the conflict.

The Tribunal found:

• NHS Fife harassed Peggie by failing to temporarily revoke access to the changing room while rota adjustments were being arranged so she would not have to share the space with her colleague, by taking too long to investigate allegations, by making inappropriate references to patient‑care concerns and by giving Peggie incorrect instructions not to discuss the case.
• Crucially, the Tribunal held that NHS Fife’s policy permitting a trans woman to use the female changing room was lawful and did not constitute discrimination. The Tribunal stated expressly that allowing Dr Upton to use the changing room was lawful in itself, and the harassment finding arose only because the employer mishandled the aftermath, not because of the policy.
• Allegations of direct discrimination, indirect discrimination, victimisation, and all allegations against Dr Upton were dismissed in full.

The finding of harassment arose solely from procedural failings, rather than from any conclusion that the underlying policy itself breached the Equality Act. As the Tribunal expressly noted, “there is no legal requirement under the Act that all trans women be excluded.”

It is also important to emphasise that these are first‑instance Tribunal decisions and therefore lack binding authority. However, it is interesting how in light of the Hutchinson case Peggie is now pursuing an appeal.

These decisions demonstrate that:

• Policy design matters: It must be evidence‑based, legally defensible, aligned with health and safety duties, and sensitive to competing rights.
• Process matters just as much: Even a lawful inclusion policy can result in liability if concerns are poorly managed, delayed, or minimised.
• Clarity and communication are critical: Staff must understand the rationale for decisions, and their concerns must be treated seriously, respectfully, and without judgment.
• Trans inclusion and women’s single‑sex rights are not mutually exclusive: but balancing them requires careful assessment, transparent reasoning, and procedural fairness.

 Key Takeaway for Employers:

A one‑size‑fits‑all approach simply does not work. Organisations need robust, legally sound policies, clear procedures for resolving concerns sensitively and prompt training for managers on balancing rights without dismissing legitimate anxieties. The incoming appeal in the Peggie case will be particularly important to follow, as it is likely to influence the direction of future employer practice in this area. If you’d like to stay updated as the appeal progresses, be sure to follow our updates on LinkedIn.