An employment tribunal has upheld claims of indirect sex discrimination and harassment brought by an NHS England employee concerning the organisation’s policy on access to single-sex facilities. The case highlights the challenges employers face when balancing competing protected characteristics under the Equality Act 2010 and demonstrates the importance of carefully assessing workplace policies that may place particular groups at a disadvantage.

Read on as we outline what happened and discuss the tribunal’s findings. We examine what indirect sex discrimination is and the broader meaning of this case.

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Background to the Indirect Sex Discrimination Claim 

The centre of the NHS England case reportedly concerned guidance introduced in 2017 stating that transgender employees could use single-sex facilities, including toilets and changing rooms, that matched their gender identity once they began “living full-time” or “presenting” in their acquired gender.      

Access to facilities was therefore based on gender identity presentation rather than biological sex or possession of a Gender Recognition Certificate. 

The Claimant, anonymised as “LS”, was employed by NHS England. LS is a woman, is Muslim and holds gender critical beliefs. She had also experienced male sexual violence and developed post-traumatic stress disorder (PTSD), which formed part of the factual background considered by the tribunal when assessing the impact of the policy on her. 

LS claimed that NHS England’s policy caused indirect sex discrimination and harassment. She argued that women were placed at a disadvantage because the policy permitted transgender women to access female facilities. She further contended that this represented a significant intrusion of privacy and that some women could feel vulnerable or intimidated, particularly in communal facilities. 

The Workplace Policy at the Centre of the Dispute 

The main issue of the case was NHS England’s approach to access to single-sex spaces. 

NHS England had adopted a policy approach influenced by inclusion principles, supporting access to facilities based on gender identity rather than strictly biological sex. The Claimant argued that the implementation of this policy affected her directly in the workplace and raised concerns regarding the sharing of facilities. 

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The case therefore required the tribunal to consider whether the policy’s practical effect amounted to indirect sex discrimination under the Equality Act 2010. 

What is Indirect Sex Discrimination? 

Workplace discrimination under the Equality Act 2010 occurs when an employee or job applicant is treated unfairly because of a protected characteristic. The law regulates not only overt unfair treatment but also more subtle workplace practices, policies and environments that disadvantage certain groups. 

Indirect sex discrimination occurs when a rule, policy or way of working applies equally to everyone on paper but, in practice, places a particular group at a disadvantage. 

Under the Equality Act 2010, a claim for indirect sex discrimination generally requires four elements: 

• A policy, criterion or practice applies to everyone;
• The policy disadvantages people who share a protected characteristic;
• The Claimant personally experiences that disadvantage; and
• The employer cannot demonstrate that the policy is a proportionate means of achieving a legitimate aim. 

Employers may therefore be liable for indirect sex discrimination even where a policy was introduced with positive intentions if it disproportionately affects a protected group and cannot be objectively justified. 

The Tribunal’s Findings 

Amongst other findings, the tribunal found that NHS England’s facilities policy gave rise to indirect sex discrimination because of the way it disadvantaged women as a group. Although the policy applied to everyone, the tribunal concluded that it placed women, including the Claimant, at a particular disadvantage compared with men. The tribunal therefore concluded that the Claimant had established the necessary elements of indirect sex discrimination. 

Justification and Proportionality 

A key issue in the case was whether NHS England could justify the policy. Under the Equality Act 2010, a policy that results in indirect sex discrimination may still be lawful if the employer can show that it is a proportionate means of achieving a legitimate aim. 

Proportionality is the key legal test. It requires tribunals to balance competing rights and interests and assess whether the employer’s chosen approach is necessary and appropriately balanced. 

The tribunal reportedly found that NHS England failed to satisfy this justification test. Although the organisation pursued legitimate aims relating to inclusion and support for transgender employees, it did not sufficiently demonstrate that its facilities policy was necessary or that it appropriately balanced those aims against the disadvantage experienced by the Claimant and other women. 

As a result, the policy’s discriminatory effect could not be justified. 

The Equality Act 2010 and Single-Sex Spaces 

The key legislation in this case is the Equality Act 2010, which protects multiple characteristics that can sometimes come into conflict in workplace policy settings. 

The Equality Act 2010 also permits certain single-sex spaces and services in limited circumstances. These can include: 

• Toilets;
• Changing rooms; and
• Certain forms of communal accommodation. 

Cases involving indirect sex discrimination frequently require tribunals to consider how these provisions interact with other protected characteristics, including gender reassignment, religion and belief. 

This case illustrates the complexity of that balancing exercise and reinforces the importance of employers taking a careful and evidence-based approach when designing workplace policies. 

What Does This Mean for Employees? 

This case demonstrates that employees may be able to bring a claim for indirect sex discrimination where a workplace policy applies equally to everyone but has a disproportionate impact on a particular group. 

The decision is a reminder that employers must consider the effect of workplace policies on all protected groups under the Equality Act 2010. Even where a policy is introduced with the aim of promoting inclusion, it may still amount to indirect sex discrimination if it places certain employees at a disadvantage and cannot be objectively justified. 

Employees who believe that a workplace policy has adversely affected them because of their sex, religion, philosophical beliefs or another protected characteristic may have legal protection under the Equality Act 2010. 

The case also highlights that tribunals will consider whether an employer has properly assessed the impact of its policies and whether reasonable steps could have been taken to reduce any disadvantage experienced by affected employees. 

If an employee believes that a workplace policy has caused indirect sex discrimination, harassment or another form of unlawful discrimination, they should consider seeking legal advice on their position and the options available to them. 

Indirect Sex Discrimination: Our Final Thoughts

This case highlights the importance of carefully balancing competing rights under the Equality Act 2010. While employers may seek to support transgender employees through inclusive workplace policies, they must also consider the rights of women, religious employees and those holding protected philosophical beliefs.

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The tribunal’s decision confirms that employers must be able to justify policies that may result in indirect sex discrimination and show that they have properly considered the impact on all affected groups. 

For employers, the judgment serves as a reminder that equality policies should be regularly reviewed, supported by evidence and designed in a way that appropriately balances the rights of all employees.

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