Hutchinson & Others v County Durham and Darlington NHS Foundation Trust (Case No. 2501192/2024 & Others)

In brief

Eight nurses at Darlington Memorial Hospital claimed harassment (s.26), victimisation (s.27) and indirect sex discrimination (s.19) over changing-room sharing with a trans colleague. The Tribunal upheld harassment against the Trust on two grounds - requiring the sharing itself (List of Issues 4(a)) and not taking the claimants' concerns seriously (4(b)) - and upheld indirect sex discrimination carried by PCP 1 (access on self-declaration) with PCP 3 (prioritising one group's interests without balance), para 421. PCP 2 (lack of consultation) was applied but NOT causative and failed (paras 277, 401). Every victimisation claim failed at the Shamoon threshold (para 325). Claims against the trans colleague personally were all dismissed. The Trust's process was condemned: an EqIA reciting 'No differential impact known' was 'lip service' (para 415), the policy was drafted in ignorance of the Workplace (Health, Safety and Welfare) Regulations 1992 whose breach destroyed proportionality (paras 373, 435), and 'No one spoke to Rose to seek Rose's views' - 'no attempt... to strike any kind of balance' (para 434).

Key provisions

• holding-1 — Requiring staff to share changing room with trans colleague can constitute harassment: Requiring the claimants to share a changing room with a trans colleague was unwanted conduct related to sex and gender reassignment with the effect of violating dignity and creating a hostile environment (List of Issues 4(a)); failing to take their concerns seriously was a further, free-standing ground (4(b)).
• holding-2 — Employer's failure to address concerns about changing room access was harassment: An employer's failure to address legitimate concerns about changing room access arrangements constituted harassment by failing to take adequate steps.
• holding-3 — Indirect sex discrimination in Transition in Workplace policy upheld: Indirect sex discrimination succeeded on PCP 1 (changing-room access on self-declaration) in conjunction with PCP 3 (prioritising the perceived rights of trans staff without balancing others'), para 421. PCP 2 (lack of consultation) was applied but did not cause the disadvantage and failed.
• holding-4 — Some harassment claims dismissed on the facts (conduct of the trans employee): Some harassment claims were dismissed on the facts, where the conduct of the trans employee (rather than the employer's policy) was the issue.
• holding-5 — Victimisation claims dismissed: All victimisation claims were dismissed. Media interviews WERE held to be a protected act (para 316 - s.27 does not require the act be addressed to the employer), but every pleaded detriment failed: at the Shamoon reasonable-worker threshold ('The letter angered the Claimants... that is insufficient to amount to a detriment', para 325), on absent factual basis, or on causation.

When relevant

Critical for workplace facilities decisions post-FWS. Teaches: the balancing process itself is what tribunals police ('no attempt to strike any kind of balance', para 434 - including never asking the trans colleague); sham EqIAs are called out as lip service; alternatives must actually exist; statutory compliance layers (Workplace Regulations 1992) can decide proportionality; and detriment's Shamoon threshold cuts down victimisation claims even where harassment succeeds. Pair with KELLY-ET-2025 (no-impact defeats claims despite condemned process), LS-NHSE-ET-2026 (alternate-provision asymmetry) and PEGGIE-ET-2025 (the response as the claim surface).