Hutchinson and others v County Durham and Darlington NHS Foundation Trust finds that NHS trust changing facilities policy amounted to harassment related to both sex and gender reassignment.
On 16 January 2026, the Employment Tribunal heard the case of Hutchinson and others v County Durham and Darlington NHS Foundation Trust and offered a key insight into the current legal position regarding which facilities trans employees are permitted to use in the workplace.
Facts of the case
Eight nurses from Darlington Memorial Hospital issued a joint tribunal claim following the NHS Trust’s treatment of them after they complained to management about fellow employee, Rose Henderson (a trans woman) using the single-sex female changing rooms.
The Trust quoted its “Transitioning in the Workplace” policy in response to the original complaints. This policy allowed trans employees to use single-sex spaces which conformed with their gender identity, rather than their biological sex.
The complaints were not adequately addressed with the claimants being criticised and told they were required to be educated on trans rights and to broaden their mindsets.
Tribunal finding
This decision follows from the recent For Women Scotland decision in which it was determined that the term “sex” under the Equality Act 2010 referred to biological sex and consequently meaning that access to single sex spaces does not include access to trans persons who are biologically the opposite gender.
The Employment Tribunal applied this ruling and held that:
- requiring female employees to share a changing room with their trans colleague, and failing to address objections to this, amounted to harassment related to sex and gender reassignment.
- as a result of the “Transitioning in the Workplace” policy, female employees were placed at a greater disadvantage than their male counterparts. The tribunal acknowledged that women are more likely to feel distressed, fearful, or humiliated when required to share communal changing facilities with the opposite sex (with Rose Henderson being considered a biological male under the Equality Act 2010).
So what should the NHS have done?
Employers may be concerned and confused with this judgment, and there is certainly a requirement for more guidance in this area. The key part of this case is not only that the female employees were expected to share their single-sex facilities with a trans colleague, but that their concerns were not addressed sufficiently. Further, an overreliance appears to have been placed on the policies implemented by the NHS Trust which, in a noble effort to protect the rights of trans employees, supported those employees at the expense of the dignity of their cisgender colleagues.
The judgment in this case determined that, as Rose Henderson was the only transgender employee using the female changing room, she should have been provided with “alternative, suitable and dignified facilities”, rather than permitting her to use the female changing room.
It is acknowledged in the judgment of this case that additionally, expecting Rose to use male facilities may also had the affect of violating her dignity and potentially her article 8 right to a private life. It is therefore important that, to avoid similar situations in their own workplaces, employers must provide adequate facilities for trans employees as well as single-sex places. This is likely to be a matter of resources available to each employer, with large-scale employers naturally expected to be able to expend greater resources in this area than a small business with few employees.
The current climate is certainly complex, requiring a balancing act of several different protected characteristics, and all disputes will need to be handled sensitively. A well-drafted equality, diversity and inclusion policy will be essential as the above measures are followed. Furthermore, in managing situations such as this, employers should remember that gender critical beliefs qualify for protection under s 10 of the Equality Act. The Equality and Human Rights Commission (EHRC) is expected to publish its much awaited amended Code of Practice for Services during 2026.
How can Moore Barlow help
At Moore Barlow we have experienced employment tribunal solicitors who can provide expert guidance and representation in employment tribunals, helping to defend your rights as an employee. We can assist with all aspects of the tribunal process, from preparing your case to representing you in court. With our support, you can be confident that your interests are being protected and that you have the best possible chance of achieving a successful outcome.
