June 2025 has been a busy month for the Equality and Human Rights Committee (EHRC). Since our previous Insight on the implications of the Supreme Court’s decision in For Women Scotland v The Scottish Ministers at the start of the month (see links at the foot of this Insight for previous Insights in this series), there have been several developments on the EHRC’s work to update its Code of Practice for services, public functions and associations.
It has resisted pressure (and a High Court challenge by human rights charity, Liberty) to extend its consultation on amendments to its Code of Practice for services, public functions and associations (the Code) [Guidance: Code of practice for services, public functions and associations: consultation 2025], insisting that there is sufficient time to properly consult whilst still delivering on the need to quickly bring clarity to this area. Accordingly, the consultation remains due to finish on 30 June.
The EHRC has maintained that the updated Code will be delivered to Parliament for its consideration / approval by the end of July 2025 and that it should have received approval by “late autumn”. Similarly, the government has stated that the change of EHRC Chair on 30 November 2025 (outgoing Chair, Baroness Kishwer Falkner, is set to be replaced by Dr Mary-Ann Stephenson) will also not have any delaying impact on the schedule for delivery of the updated Code.
In the meantime, on 24 June, the EHRC amended its interim statement in a bid to clarify its summary of the position on workplace toilet and changing facilities, which has been, and remains, a key focus area for all employers and, indeed, the wider public in view of the at times polarised views of trans-supportive and gender critical commentators. In a still relatively vague reference to gender-designated facilities, the interim statement now specifically mentions the Workplace (Health, Safety and Welfare) Regulations 1992 which set out employers’ obligations for providing such facilities for their staff.
In relation to workplaces, requirements are set out in the Workplace (Health, Safety and Welfare) Regulations 1992. These require suitable and sufficient facilities to be provided including toilets and sometimes changing facilities and showers. Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside. Where changing facilities are required under the regulations, and where it is necessary for reasons of propriety, there must be separate facilities for men and women or separate use of those facilities such as separate lockable rooms.
It is hoped that the updated Code, when it arrives, will still more accurately convey the provisions of those key Regulations rather than seek to summarise or paraphrase them, which can cause confusion or misinterpretation.
This complex and potentially emotive issue remains very challenging for employers to navigate for many parties and is likely to continue to be the subject of debate and controversy. Our suggestions as to how employers should approach workplace issues, remain as set out in the previous Insight which you can find below.
For Women Scotland Series
Supreme Court Decision: Women Scotland v Scottish Ministers - 06 June 2025
What is the definition of a woman? - 23 April 2025
If you require specific advice for your organisation, please contact your usual Weightmans employment adviser.
Employment law