In Hutchinson and others v County Durham and Darlington NHS Foundation Trust (informally referred to as the ‘Darlington Nurses’ case) an employment tribunal has found that a group of female nurses suffered discrimination when required to share single sex changing facilities with a transgender colleague.
This is the first reported application by the English employment tribunals of the Supreme Court’s landmark ruling in For Women Scotland v Scottish Ministers and an informative further indicator of the direction of travel on this difficult and emotive issue.
What happened?
This claim was brought against the employing NHS Trust by a group of female nurses who work in the Day Surgery Unit at Darlington Memorial Hospital.
The Trust operated a ‘Uniform and Dress code Policy’ requiring employees to change in and out of unform on trust premises. Separate male and female changing rooms were provided for this purpose.
The Trust’s separate ‘Transition in the Workplace (TIW) Policy’ permitted transgender staff to use the changing room appropriate to their acquired gender; for example, a transgender woman who had transitioned from male to female, would be permitted to use female changing facilities.
Any staff not wishing to share single-sex changing facilities with transgender colleagues were required to use alternative changing facilities. However, in practice, no alternative changing facilities were provided.
One of the Trust’s employees, Rose Henderson, a biological male who identifies as female and who has the protected characteristic of gender reassignment, was permitted to use the female changing room in accordance with the TIW policy. The female nurses raised concerns with management about the use of single-sex facilities by their transgender colleague, first informally in 2023, and later formally in April 2024.
They claimed that, by permitting Rose access to the female changing room and by requiring them to share the room with a biological male transgender woman, the Trust had subjected them to harassment related to sex and gender reassignment. They also claimed that, in various ways, the handling of their concerns by management also amounted to harassment. Specifically, the nurses felt that statements made by the Trust to the effect that they needed to be educated on transgender rights were inappropriate and dismissive.
The nurses further alleged that the Trust had subjected them to indirect sex discrimination in two ways. Firstly, by giving staff access to gender-specific changing rooms based on their self-declared acquired gender and, secondly, by prioritising the rights of transgender employees in this respect over the right of other employees to access single-sex changing facilities.
They argued that both these practices put women to a particular disadvantage when compared to men, because women are more likely to be distressed and embarrassed by being compelled to undress in front of a member of the opposite biological sex. The nurses all alleged that they had personally experienced this discomfort.
The Employment Tribunal’s decision
The employment tribunal confirmed that it was required to interpret the Equality Act 2010 in line with the Supreme Court’s decision in For Women Scotland which established that references to ‘sex’ mean biological sex, rather than acquired gender.
Applying that interpretation, it found that the Trust had subjected the nurses to harassment by permitting a transgender woman, who is biologically male, to use the female changing room and requiring the claimants to share that changing room without providing suitable alternative facilities. The Trust’s conduct violated the claimants’ dignity and created a hostile, intimidating, humiliating and degrading environment for them. The Trust had also harassed the nurses by failing to take their complaints seriously.
The employment tribunal also upheld the nurses’ arguments that they had suffered indirect discrimination and had been placed at a particular disadvantage.
It rejected the Trust’s counter arguments that its approach was a ‘proportionate means’ of achieving specific ‘legitimate aims’ (including ‘sensitively balancing the competing rights of employees at work’ and ‘respecting the gender identity of all employees’).
Comment
It is important to note that, as a ‘first instance’ decision, this case does not create a formal legal precedent. However, the judgement is a logical and clearly reasoned application of the Supreme Court decision in For Women Scotland and is likely to stand up to legal scrutiny in future.
The decision follows the Supreme Court’s clear message that continuing to allow transgender employees to access single-sex facilities appropriate to their acquired gender poses an ongoing legal risk (even if employers are motivated by a desire to support and validate transgender staff).
Last month (December 2025) in Peggie v Fife Health Board and Dr Beth Upton, a Scottish employment made a similar finding of sex discrimination on similar facts. However, in that case, the employment tribunal implied that allowing transgender employees to use facilities appropriate to their acquired gender might be permissible on a ‘case by case’ basis.
This does not sit comfortably with either the Darlington decision (which is emphatic that the law requires transgender employees to use facilities appropriate to their biological sex) or the draft EHRC Code of Practice on this issue (which is still under consideration by the Government and awaiting sign-off). Both of these follow the For Women Scotland line more faithfully.
The claimant in Peggie has appealed various aspects of the decision which were not found in her favour. That appeal may be an opportunity for the Employment Appeal Tribunal to consider any inconsistencies and provide some clarity.
In the meantime, we would encourage employers to reach out for legal support if sensitive issues around competing interests of transgender staff and those with other protected characteristics (such as, for example, sex, philosophical beliefs or religion) are raised in any context in the workplace.
