Mr D Toshack v Respondent — 2025

Mr Toshack started work as a Prison Custody Officer on 25 November 2024 and was dismissed during his introductory training on 7 January 2025 after saying he would not use preferred pronouns for transgender prisoners and would not complete PER forms in a way that he regarded as inaccurate. The tribunal accepted that he genuinely held the philosophical belief that sex is immutable and held that this was a protected belief under section 10 of the Equality Act 2010, applying the Grainger criteria. It distinguished that belief from the way in which he manifested it and from his refusal to follow the respondent's policies and procedures.

The harassment claim concerned the request by Sarah Harvey that he leave the training room, comments by Chris Hutton during the later meeting, and dismissal. The tribunal accepted that the conduct broadly occurred, but found that the room request was made to de-escalate a heated training discussion and that the comments were part of exploring whether he would comply with policy. It held that the conduct was not related to the protected belief in the statutory sense, was not unwanted in the relevant sense, and did not amount to conduct that violated dignity or created an intimidating, hostile, degrading, humiliating or offensive environment under section 26 EqA 2010. Dismissal was not treated as harassment.

On the direct discrimination claim, the tribunal held that the relevant treatment was because Mr Toshack said he would not comply with the respondent's policies on transgender prisoners, including the use of preferred pronouns and the completion of PER forms according to the prisoner's affirmed sex. It accepted that the respondent had no issue with staff holding gender-critical views and noted that Mr Weir had expressed similar views without sanction. Applying the approach in Page and Higgs, the tribunal held that the reason for the treatment was the refusal to comply with policy, not the protected belief itself, and that any employee who refused to comply would have been treated in the same way.

The indirect discrimination claim was based on the agreed PCP requiring employees to record prisoners' personal details and refer to them on the PER according to asserted gender rather than biological sex. The tribunal dismissed that claim because there was no evidence that the PCP put employees with sex-realist beliefs at a particular disadvantage compared with others. For completeness, it accepted the respondent's stated legitimate aims of complying with its contractual obligations to the Scottish Prison Service and avoiding infringement of transgender prisoners' rights, and held that dismissal was a proportionate response under the Bank Mellat and Hardy Hansons approach.

The tribunal recorded salary and pay figures for remedy purposes, including a basic annual salary of £24,115 and weekly pay figures, and noted that the claimant would have become eligible for the pension scheme on 25 February 2025. No remedy was awarded because all claims failed, and the judgment states that the claims are dismissed. The appeal against dismissal had already been rejected by letter dated 18 February 2025.