Kelly v Leonardo UK Limited concerned an employee’s objections to a workplace toilet-access policy and claims of harassment, direct sex discrimination and indirect sex discrimination.
The Scottish Employment Tribunal dismissed all of the claims. The case is useful because it shows that a disagreement with a facilities policy, or anxiety about what might happen under it, does not by itself establish unlawful discrimination.
For organisations, the decision demonstrates the importance of evidence: what actually happened, what facilities were available, how the policy operated and whether the claimant experienced a legally significant disadvantage.
What was Kelly actually about?
The claimant objected to the employer’s approach to toilet access and argued that the policy and its operation disadvantaged her because of sex.
The tribunal examined:
- the terms of the employer’s policy;
- the facilities available at the workplace;
- the claimant’s actual experience;
- the conduct of managers and colleagues;
- whether the legal tests for harassment and direct or indirect discrimination were met; and
- whether any disadvantage was caused by sex.
The dispute was therefore resolved on the evidence before the tribunal, not on a general proposition that every concern about facilities must succeed or fail.
The legal questions
The tribunal had to decide whether:
- the claimant had been treated less favourably because of sex;
- a provision, criterion or practice placed women at a particular disadvantage;
- any such disadvantage had actually affected the claimant;
- the employer’s conduct violated dignity or created the environment required for harassment; and
- the policy or facilities arrangement could be objectively justified where required.
Each claim had its own statutory test. A general objection to the policy was not enough.
Why the claims failed
The tribunal found that the evidence did not establish the required discrimination or harassment.
Relevant factual considerations included:
- the availability of single-occupancy facilities;
- the claimant’s actual use and experience of the workplace;
- the absence of repeated incidents producing the alleged environment;
- the employer’s response to concerns; and
- the lack of evidence connecting the treatment complained of to sex in the way required by the Act.
The tribunal did not accept that the employer’s conduct had violated the claimant’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment within the statutory test.
What the judgment decided
The decision confirms that:
- facilities claims remain fact-specific;
- anticipated concern is not the same as evidence of actual disadvantage;
- the existence and quality of alternative facilities can be relevant;
- harassment requires the statutory elements to be proved; and
- an employer’s documented policy and practical response may be defensible where the evidence supports them.
It is particularly useful as a counterpoint to cases where employer conduct, poor alternatives or detrimental treatment did cross the legal threshold.
What the judgment did not decide
Kelly did not establish that:
- every gender-identity-based access policy is lawful;
- single-sex facilities have no legal significance;
- staff must always use an alternative facility to avoid raising a concern;
- privacy objections may be dismissed without investigation;
- the availability of any alternative automatically defeats a claim; or
- employers can rely on this judgment instead of assessing their own facts.
It is a first-instance Employment Tribunal decision based on one workplace, one policy and one evidential record.
Relationship with For Women Scotland
For Women Scotland settled that sex in the Equality Act means biological sex. That legal classification formed part of the wider post-judgment context.
But the Supreme Court’s interpretation does not automatically answer whether an employer has committed harassment, direct discrimination or indirect discrimination. Those questions still require application of the relevant statutory tests to the actual facts.
Kelly therefore illustrates the difference between knowing the legal classification and proving a particular workplace claim.
Relationship with Peggie and Hutchison
Kelly, Peggie and Hutchison should not be treated as interchangeable.
They involved different workplaces, policies, facilities, evidence and employer responses. Their value lies in comparison:
- Kelly shows a claim failing where the statutory thresholds were not proved;
- Peggie illustrates the importance of conduct, causation and process; and
- Hutchison demonstrates how poor handling, detriment and inadequate alternatives may create liability.
The comparison reinforces that outcomes cannot be predicted from labels alone.
Practical implications for organisations
Employers should:
- identify the legal status and intended use of each facility;
- assess actual privacy and dignity impacts rather than assumptions;
- investigate concerns without presuming that a claim is established;
- provide realistic alternatives without making them inferior or punitive;
- document the policy, evidence and reasons for the chosen arrangement;
- distinguish the existence of concern from proof of unlawful detriment;
- apply conduct and grievance procedures consistently; and
- review the arrangement if circumstances or evidence change.
A sound way to read the case
Decision-makers should ask:
- What exactly happened to the claimant?
- Which statutory claim is being made?
- What evidence establishes disadvantage, causation or harassment?
- What facilities and alternatives were genuinely available?
- How did the employer respond?
- Is the policy justified by evidence rather than assumption?
- Are there material differences from other facilities cases?
Key takeaways
- Facility-access claims do not succeed automatically.
- Evidence of actual treatment, disadvantage and causation matters.
- Alternative facilities and policy process can affect defensibility.
- Harassment must satisfy the statutory test, not merely involve disagreement or discomfort.
- Kelly is persuasive, fact-specific and should be compared carefully with Peggie and Hutchison.
This resource provides general information and does not constitute legal advice.