B M Kelly The v Represented by Ms N Cunningham,15 Counsel Instructed by Gunnercooke SCO LLP Leonardo UK Limited — 2023

The claimant, a woman employed by Leonardo UK Ltd at its Edinburgh site, challenged the respondent's toilet access policy. The tribunal found that from June 2023 the respondent adopted a policy allowing staff who asserted a gender identity at variance with their sex to use toilet facilities aligned with that gender, and that the policy was not formally disseminated to staff until later, including through JCC minutes in June 2024. It also found that the respondent complied with Regulation 20 of the Workplace (Health, Safety and Welfare) Regulations 1992 by providing a sufficient number of suitable toilets, including separate and single-occupancy facilities.

On harassment, the tribunal held that the operation of the toilet access policy was unwanted conduct related to sex, but it did not have the prohibited effect under section 26 EA 2010. The claimant's own evidence was that she continued to use the same toilet facilities and had no material change of use, and the tribunal found it was not reasonable in the circumstances to conclude that the policy violated her dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for her.

On direct discrimination, the tribunal found that the claimant was not treated less favourably than a man in the same material circumstances. It held that the policy applied equally to men and women, that the correct comparator was not a male user of the women's toilets as pleaded, and that there was no basis for concluding that the presence of a trans woman in the female toilets made those facilities less suitable for a woman than for a man. On indirect discrimination, the tribunal found that the claimant had not shown that the policy put female staff at a particular disadvantage compared with male staff in respect of fear, risk of violence or sexual assault, or privacy. In any event, it held that the policy pursued legitimate aims of lawful treatment of trans employees, respect and dignity, and an inclusive workplace, and that it was a proportionate means of achieving those aims. All complaints were dismissed and no remedy was awarded.