UK employers navigate evolving rules on single sex workplace facilities

More than a year on from the Supreme Court’s ruling in For Women Scotland, employers are still grappling with what it means in practice for single sex spaces in the workplace. 

The issue has been brought back into focus by the Equality and Human Rights Commission’s  updated statutory Code of Practice on services, public functions, and associations, which has now been in force for more than a month. It does not apply directly to employment and it does not change the law, but it is relevant to employers as they review their own policies and prepare for further guidance from the Commission.

So where should employers be by now? What should they already have done following the Supreme Court ruling, what can they take from the new Services Code, and what should they be doing now to keep their approach under review? We’ll consider that.

The Code follows more than a year of debate over the practical implications of the Supreme Court ruling and comes at a time when single sex workplace policies and facilities continue to attract scrutiny. For employers, the challenge is that the position is still developing. The Services Code is now in force, separate employment guidance is expected in due course and recent tribunal cases have highlighted some of the difficult questions employers face, with further appeals expected to provide greater clarity.

Francis Keepfer is an employment lawyer who specialises in equality and discrimination and has been advising a number of clients on their approach to single sex spaces and the practical issues arising in the workplace. Earlier I caught up with Francis by phone and I started by asking him what employers should have done in response to the For Women Scotland ruling, and where they should be by now:

Francis Keepfer: "I think the first thing is to understand what the judgment says. It's 88 pages long, so it's quite detailed. I'm not suggesting that employers need to pour over every single word, but the headline that employers really need to take away from the judgment is that the terms sex, man, and woman in the Equality Act refer to biological sex and biological men and biological women, and that's the key takeaway. The judgment effectively ratified the law; it didn't change the law. So essentially, the Equality Act has always meant biological sex, and the judgment ratified that so it's not a change in the law. I think the other key point that employers should take away from the judgment is the Supreme Court were at pains to make the point that, despite the fact that they had ruled that sex, men and women, refers to biological sex men and women, they were not taking away any protections that were previously afforded to trans people, so trans people are protected under the Equality Act on the basis of the protected characteristic of gender reassignment. So that's any person who is proposing to undergo, is undergoing, or has undergone, any part of a process to change their sex and, as I say, the Supreme Court were at pains to point out that nothing in their judgment was intended to reduce the protections afforded to people with that protected characteristic under the Equality Act.”

Joe Glavina: “The Commission’s new Services Code doesn’t apply to employers, Francis, so what relevance does it have for them?”

Francis Keepfer: “That's right, the new code doesn't apply to employers. It applies to service providers, it applies to associations, and it applies to service providers who are exercising the public function and for simplicity we'll just refer to it as the services code. It doesn't apply to employers, but I think it is relevant for employers in the sense that the EHRC have indicated that the direction they are likely to take in the future because there is a separate employment code, and that is also due to be updated at some point, we don't know when, but I would suspect some point in the next one to two years and the EHRC have indicated that that employment code is likely to follow the same pattern as the services code. So I will be highly surprised if, once the employment code is updated, that was in any way different from the services code. Of course, it will be more specific to employers, and it will have more practical guidance relating to employers but think the ethos of both of those codes will be very similar, so I think employers can read the services code and I think they can look at the practical implications of the code, and they can draw inferences from the code that they might find useful when making changes to their own policies. The other reason that employers might find the services code useful is because, of course, some employers will also have responsibilities and duties as service providers. So retail clients, for example, will of course employ people, but they will also be service providers, for example, they'll have customers in store. So just because the services code only applies to service providers, it doesn't mean that all employers should simply disregard it.”

Joe Glavina: “What should employers be doing now, Francis, to keep their policies and approach under review?”

Francis Keepfer: “I think the first thing that employers should be doing to keep their facilities and policies under review is conducting an audit to understand what facilities they have in place in each location and where potential issues may arise. I think it's really important to point out that for an employer, their legal obligations in respect of facilities, toilets, changing rooms, shower facilities, are not derived from equality law or from the Equality Act, but from health and safety legislation. So that will be the primary concern for employers to make sure that they are meeting those health and safety and building regulation requirements. So, as I say, I think the first step is for employers to effectively conduct an audit to work out what facilities they have in place and where potential issues may arise. They should also be thinking about what their policies say and making sure that their policies are consistent and are legally compliant with the judgment in For Women Scotland and they should also be keeping the position under review as they move forwards because the position for employers is slightly up in the air in the sense that whilst the legal position is very clear in terms of the Supreme Court ruling, there have been various cases in the Employment Tribunal over the last 18 months or so, that have asked the question: is a policy that allows trans people to access the facilities designated for the opposite sex - for example a trans woman who is biologically male - is it lawful to allow that trans woman to access the women's facilities? There have been different answers from the Employment Tribunal as to whether that policy is lawful or not. We are waiting for some appeal judgments from the Employment Appeal Tribunal on at least two of those cases so employers should conduct that audit, they should review their policies, make sure they're legally compliant, but they should also keep an eye on legal developments as they move forwards because the position may change.”

So, the key point for employers is that this is not a one-off policy exercise. They need to understand where they stand following For Women Scotland, review their policies and workplace facilities now, and keep their approach under review as the case law and the Commission’s guidance continue to develop. Francis is currently working with a number of clients on this, helping them review their policies and facilities and navigate some of the difficult practical issues around single sex spaces in the workplace. If you would like help with this, do contact Francis – his contact details are on screen for you.