Summary: A tribunal ruled that County Durham and Darlington NHS Foundation Trust harassed and indirectly discriminated against nurses by not taking their concerns about sharing a changing room with a transgender colleague seriously. The judgment clarifies that ‘sex’ in both the Equality Act 2010 and Workplace Health and Safety Regulations means biological sex, not gender identity. HR teams should consider reviewing their policies and ensuring compliant toilet and changing facilities.
Last week, a tribunal found that County Durham and Darlington NHS Foundation Trust harassed and indirectly discriminated against nurses by allowing a transgender woman to use a female changing room.
Eight nurses from Darlington Memorial Hospital said they were penalised by managers after raising concerns about sharing a single-sex space with a biological male colleague who identified as a woman. The ruling found that the NHS trust had violated the nurses’ dignity and harassed them particularly because their objections were not taken seriously.
It’s a judgment that goes to the heart of several issues that have dominated sex and gender disputes in recent years, particularly since the Supreme Court judgment in For Women Scotland.
For HR professionals, the case provides timely guidance on an area that has been uncertain for many employers: how the Equality Act 2010 interacts with workplace health and safety law when it comes to toilets, washing and changing facilities.
Understanding the case: Single-sex workplace spaces
At the heart of the dispute was a widely held assumption in many organisations that single-sex workplace spaces should be allocated according to gender identity rather than biological sex.
This approach has often been justified by reference to the protected characteristic of gender reassignment (in effect, trans people) under the Equality Act 2010 – it’s an extension of the principle that Trans Women Are Women.
This is where it becomes more delicate from a legal perspective: Trans Women Are Women is a slogan of the trans rights movement, adopted by many NGOs, trade unions and charities over the past 15 or so years. It’s been so successful that many organisations have adopted it into policy as though it were law. But as a statement of law it was always incorrect.
As the Supreme Court found in For Women Scotland last year, the law has always been that where the Equality Act 2010 is engaged (which is effectively everywhere there is the potential for discrimination to arise), sex (and man, and woman) refers to the biological meaning, regardless of an individual’s gender identity.
What makes this case particularly significant is that the tribunal directly examined whether single-sex workplace facilities should be organised by sex or by gender identity. The judgment also makes clear that treating gender identity as determinative – in line with the Trans Women Are Women approach – can expose employers to legal risk.
What this ruling means for workplace law
A key feature of the ruling is its analysis of the relationship between the Equality Act 2010 and the Workplace (Health, Safety and Welfare) Regulations 1992.
The 1992 Regulations require employers to provide suitable toilet, washing and changing facilities and, in many cases, to segregate them by sex. Following For Women Scotland, some employers questioned whether “sex” might be defined differently in the 1992 Regulations than in the Equality Act.
The tribunal addressed this directly and found that the definition is the same in both pieces of legislation: sex means biological sex.
While, as an employment tribunal case this isn’t binding, it is persuasive, particularly when its carefully reasoned and very detailed judgment is taken into account. Looking ahead, a more senior court can choose to follow it, which makes it more persuasive. It’s still only persuasion though, not binding.
For employers, having a single, consistent definition for sex avoids the complexity that would arise if different rules applied under different definitions.
It also avoids difficult distinctions, such as whether a trans employee has a Gender Recognition Certificate, and removes the risk of applying different definitions to employees and members of the public using the same facilities – for example, the toilets in a restaurant.
Next steps for HR
Considering this ruling, HR teams should review their current arrangements and policies relating to workplace facilities. Key priorities include the following.
Understand your compliance obligations
The Workplace Regulations apply to almost all non-domestic workplaces, and compliance is mandatory. Employers should ensure they meet the core requirements:
- Toilet facilities: Adequate toilet facilities must be provided. These are generally expected to be separate for men and women, although limited mixed-sex arrangements are permitted in specific circumstances.
- Washing facilities: Where the nature of the work requires them, suitable washing facilities must be provided. These should normally be for separate use by men and women, unless they are designed for single-person use and can be locked from the inside.
- Changing facilities: If employees need to change clothes for work and it would not be appropriate or safe to do so elsewhere, suitable changing facilities must be provided. These should be separate for men and women and include seating.
If an organisation does not currently have compliant facilities, it will need to take steps to provide them. Clear, written instructions should also be issued to managers and staff confirming that the sex-segregated nature of these facilities must be respected.
Provide mixed-sex facilities
The Workplace Regulations allow a limited form of mixed-sex toilet provision. This is permitted where each toilet is a fully self-contained room, with its own sink and behind a lockable floor-to-ceiling door. In these circumstances, the shared access area may be signed as mixed-sex.
Employers should consider whether facilities of this type can be provided as they will be suitable for all staff, including trans and non-binary employees who may not feel able to use facilities aligned with their sex. As well as toilet facilities of this type, employers may also wish to consider providing self-contained changing rooms.
Review advice and policies carefully
Many employers have been advised (even if the advisers have been advising in good faith) that single-sex spaces must be allocated based on gender identity, and that failure to do so would be discriminatory. The law has unfortunately been misrepresented in the past, adding misperception to this complex topic. This ruling makes clear that such an approach is not legally required and may lead employers into behaving unlawfully and in a way that will lead them to lose litigation.
Where there is uncertainty, employers should take bespoke, comprehensive legal advice from a regulated law firm, with expertise in workplace law. Policies should be reviewed to ensure they reflect current rulings.
Clearly communicate with employees
While there is little formal litigation risk in instituting single-sex facilities, there is nevertheless the risk of friction with staff who misunderstand, or disagree with, the legal position.
The key to approaching this will be to communicate clearly and carefully why such spaces are required, with reference to the Equality Act 2010, For Women Scotland and the Workplace (Health and Safety at Work) Regulations 1992 (and using the Darlington Nurses case as a real-world example).
Employers should also consider case-by-case mitigations, for example, ensuring that:
- Mixed-gender toilet facilities are introduced where possible
- Staff feel that their concerns are being listened to
- The lawful approach is being properly explained
A non-discriminatory approach is still required
As For Women Scotland made clear, there are legal obligations not to discriminate against trans employees, under the protected characteristic of gender reassignment. While this doesn’t extend to treating all trans people in all circumstances as though they were the sex which aligns with their gender identity, it does prevent discrimination or harassment in the circumstances which apply to the other protected characteristics. These include hostility and negative treatment because of their gender reassignment status.
It’s therefore important that, in the context of what may be unwelcome conversations about workplace facilities, people are treated fairly and reasonably.
Let’s be clear – this ruling in no way removes the need for sensitivity or inclusive employee relations.
For HR teams, the priority now is to review policies, facilities and training to ensure compliance, consistency and confidence in managing what remains a complex and delicate area in our workplaces.
Key takeaways
If you’re reviewing your organisation’s approach to workplace facilities, consider these priorities:
- Audit your current facilities. Ensure toilet, washing and changing facilities comply with the Workplace Regulations. If you don’t currently meet these requirements, take steps to provide them.
- Provide alternative options. Consider separate single-occupancy facilities suitable for all people, including trans or non-binary employees who don’t feel able to use facilities aligned with their biological sex.
- Review your policies urgently. Seek specialist legal advice if you’re uncertain about compliance.
- Maintain inclusive employee relations. This ruling doesn’t remove the need for sensitivity. Approach these changes with empathy, clear communication and respect for all employees’ dignity and wellbeing.
Editor’s note: This article was updated on 5th February 2026 to clarify that this employment tribunal case isn’t binding, and to include information on mixed-sex facility provisions and legal obligations to trans employees. Original article published 22nd January 2026.
