EHRC guidance on single-sex spaces: what employers need to know

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The Supreme Court has ruled and the Equality and Human Rights Commission (EHRC) has updated its Code of Practice. Yet despite these developments, HR professionals navigating single-sex spaces in the workplace are still largely left to find their own way.

Last month, the Government laid the EHRC’s draft updated Code of Practice for Services, Public Functions, and Organisations (the Draft Code) before Parliament. It replaces the 2011 Code and incorporates the Supreme Court’s judgment in For Women Scotland Ltd v The Scottish Ministers, confirming that “sex”, “woman” and “man” in the Equality Act 2010 mean biological sex – and that a Gender Recognition Certificate does not change a person’s sex for the purposes of the Act.

In this article, we explain what the Supreme Court’s ruling and the EHRC’s updated Code of Practice mean for employers, and the practical steps HR teams can take now to manage single-sex workplace facilities and reduce the risk of discrimination claims.

What does this mean for employers?

In short, not as much as you might hope. The Draft Code covers service providers not employers. Workplace single-sex facilities are governed separately, under separate parts of Equality Act 2010 and the Workplace (Health, Safety, and Welfare) Regulations 1992. The EHRC has said it “will update its guidance for employers in due course” but has refused to commit to any timeframe.

What should HR teams do now?

Employers should not wait for the EHRC’s employer guidance before acting. In the meantime, HR teams should take practical steps to assess their current approach to single-sex facilities and record the reasoning behind any decisions.

They should:

  • Draft and adopt a written policy on single-sex facilities, recording the rationale behind any decisions made
  • Review the first instance cases which have begun to trickle out in the area. In the most recent of these, Hutchinson and others v County Durham and Darlington NHS Foundation Trust, a policy permitting transitioning employees to use changing rooms in line with their self-declared gender identity, and failing to pause access following a complaint, amounted to harassment related to both sex and gender reassignment. It also amounted to indirect sex discrimination.

The two relevant PCPs were:

  • Allowing access to single-sex changing rooms on the basis of self-declared gender identity; and
  • Prioritising the perceived rights of transgender employees to use facilities aligned with that identity over the rights of other employees to single-sex facilities

Those PCPs applied on their face to both men and women. However, the tribunal found they placed woman at a particular disadvantage. Woman were more likely to experience distress, fear or humiliation when required to share communal changing facilities with a member of the opposite biological sex. The Trust failed to justify the PCPs, and the indirect discrimination claim succeeded.

Employers should also ensure their approach is carefully evidenced and tailored to the circumstances.

  • Document the balancing exercise between your legitimate aim and the impact on affected groups, including trans employees.
  • Consider the availability of gender-neutral facilities – or the feasibility of introducing these if there are none currently in place.
  • Assess each situation individually – blanket policies in either direction carry legal risk.

Taking these steps now will put employers in a strong position to respond when further EHRC guidance is published.

Here to help

Our Employment team at Longmores helps employers manage sensitive workplace issues, including policies on single-sex facilities, equality obligations and the practical steps needed to reduce the risk of discrimination or harassment claims.

If you need advice on reviewing your workplace policies or understanding your responsibilities around single-sex facilities, please contact Miranda Mulligan, Senior Solicitor, in our Employment Law team.

Please note, the contents of this article are provided for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.