Toshack v GEO Amey Ltd [2026] ET 8001392/2025

In brief

Mr Toshack, a Prison Custody Officer on probation, was dismissed by GEO Amey after refusing to use transgender prisoners' preferred pronouns or record their affirmed sex on official Prisoner Escort Record forms, contrary to Scottish Prison Service policy. The Employment Tribunal confirmed his gender-critical belief was protected under s.10 EqA 2010, but dismissed all claims: his dismissal was caused by his refusal to comply with lawful policy — a separable manifestation — not by the belief itself, and dismissal was a proportionate response to a legitimate aim in a high-risk custodial context.

Key provisions

• EqA2010-s10-Grainger — Gender-critical belief qualifies as a protected philosophical belief: The belief that sex is binary and immutable satisfies all five Grainger criteria and is protected under s.10 EqA, even where evidence of belief formation was thin and some expressed views were intemperate.
• Page-v-NHS-reason-why — Belief vs manifestation — the 'reason why' test: Direct discrimination turns on the reason why the employer acted. A critical distinction exists between treating someone less favourably because they hold a protected belief, and acting because of an objectionable manifestation of that belief.
• McFarlane-Mackereth-compliance — Refusal to comply with lawful policy is not protected belief manifestation: An employer does not discriminate by requiring all staff to comply with equality-based policies, even where a staff member's beliefs make compliance personally difficult. The objection to compliance is separable from the belief underpinning it.
• EqA2010-s19-group-disadvantage — Indirect discrimination requires evidenced group disadvantage: To establish indirect discrimination, a claimant must adduce evidence that the PCP puts a group sharing the protected characteristic at a particular disadvantage — not merely assert it. Other sex-realist employees complied with the same policies without dismissal.
• BankMellat-Lax-proportionality — Proportionality of dismissal in a high-risk custodial context: Even where some discriminatory conduct is found, it may be objectively justified as a proportionate means of achieving a legitimate aim. In a dynamic, high-risk prison escort environment, requiring compliance with transgender policies was legitimate, rationally connected, and proportionate.
• EqA2010-s26-harassment-threshold — Harassment threshold — subjective perception alone is insufficient: Section 26(4) requires both a subjective element (the claimant felt their dignity was violated) and an objective element (it was reasonable for the conduct to have that effect). Being asked to leave a training room to de-escalate did not meet the threshold.

When relevant

When developing pronoun policies, addressing misgendering complaints, balancing religious belief rights against gender reassignment protections, or defending dismissal of employees who refuse to comply with trans-inclusive operational procedures.