Edinburgh employment tribunal dismisses defence contractor employee’s complaint over gendered toilet policy

About this case:

• Citation:
  8001497/2024
• Judgment:
  External link
• Court:
  Employment Tribunal (Scotland)
• Judge:
  Employment Judge M Sutherland

Claimant Maria Kelly, employed by respondent Leonardo UK Ltd as an engineer since 2007, argued that the respondent’s toilet access policy from September 2019 to date, predicated on asserted gender rather than sex, amounted to harassment and less favourable treatment of women as directly compared to men in the same position. The respondent accepted that it applied the challenged PCP from 22 June 2023 onwards but argued that no material disadvantage resulted for the claimant or for all women in their workforce.

The application was considered by Employment Judge Michelle Sutherland in Edinburgh, with Naomi Cunningham, barrister, appearing for the claimant and Susanne Tanner KC for the respondent.

Greater disadvantage

The claimant was employed at the respondent’s Edinburgh site, as part of a workforce of around 2,800 people. Twenty per cent of the workforce at the site were women and 0.5% identified as trans. On 13 June 2023, the claimant sent an email to the respondent’s VP of Human Resources enquiring what the company policy was on access to toilets. The VP replied that the facilities were based on gender aligning with the Workplace (Health, Safety and Welfare) Regulations 1992.

In response, the claimant sent a detailed reply inquiring as to when the policy was introduced and noting that the policy had the effect of making all toilets mixed sex. Further lengthy correspondence ensued, with the respondent’s position consistently stated as all protected characteristics under the Equality Act 2010 having equal weight. The claimant submitted a formal grievance on 24 June 2024, which was not upheld.

In an appeal against that decision, the respondent senior vice president Mr Stead stated that no group was placed at a material disadvantage, that there were lockable single-use spaces for anyone to be able to easily locate and utilise, and the number of toilets at the Edinburgh site were more than adequate. The claimant’s evidence before the Tribunal was that the policy had been implemented in an underhanded way and that it put women at a greater disadvantage than men.

It was submitted for the claimant that the 1992 Regulations must be interpreted to protect her human right to bodily privacy and the requirement for separate facilities must be predicated on sex in light of the Supreme Court’s judgment in For Women Scotland v Scottish Ministers (2025). The respondent denied that operation of the PCP amounted to unwanted conduct, noting that following its introduction the claimant continued to use unisex toilet facilities and did not assert any negative encounter, with her objection being a purely ideological one.

No material change

In her decision, Employment Judge Sutherland said of the claimant’s arguments: “The claimant submitted that the toilet access policy was unworkable because it was not possible to identify trans women with a genuine belief and further it was possible for a man to simply declare that they were trans without recourse to any process. There was no evidence that any of the trans women who were using the toilets were not ‘living in the gender with which they identify’ and were not genuinely trans. In any event this was not a relevant distinction because it would not matter to the claimant whether a trans woman had lived in that gender for years – in her view they were men who should not be permitted regardless.”

She added: “Prior to application of the policy, trans women had been regularly using the female toilets from 2022 to her knowledge, and without objection or material change of use on her part. After introduction of the toilet policy she continued to use the multiple occupancy female toilet block and the application of the policy caused no material change of use on her part or theirs. The claimant was not upset by operation of the policy which had no practical effect. She was annoyed that the respondent had permitted access based upon gender which she considered was ‘ridiculous’.”

Considering the appropriate comparator for discrimination purposes, Employment Judge Sutherland said: “In circumstances where the complaint is the female toilets most convenient for the claimant are being accessed by a trans woman, it is readily apparent that the correct comparator is a man whose most convenient male toilets are accessed by a trans man. The claimant ultimately accepted in oral submissions that the correct comparator was not a male user of the women’s toilets (as pled) but a male user of the male toilets.”

She went on to say: “The 1992 Regs do not give any primacy to a woman’s bodily privacy over a man’s. A woman in the female toilets would be using a toilet within a cubicle but a man in the male toilets might be using a urinal rather than a cubicle and the presence of a trans man may have greater impact on their privacy. It cannot reasonably be said the presence of a trans woman in the female toilets would cause a greater violation of a woman’s bodily privacy than the presence of a trans man in the male toilets would cause to a man’s bodily privacy.”

Judge Sutherland concluded: “The claimant submitted that it was disproportionate to sacrifice the dignity and privacy of all female staff (20% of the workforce) to protect the interests of a tiny minority of trans staff (0.5% of the workforce). However only 0.05% of the female workforce had complained or raised a concern about the policy (i.e. the claimant) and it cannot therefore be said that all women considered that their dignity and privacy had been sacrificed. Any effect on risk of assault arising from 0.5% of men using the women’s toilets instead of the men’s toilets would not have changed the overall risk profile across toilet facilities generally.”

The complaints of harassment relating to sex and discrimination on the basis thereof were accordingly dismissed.