Possible expansion of employment practices liability?

Bethany Hutchison & Others v County Durham and Darlington NHS Foundation Trust (16 January 2026) (2501192/2024 & others).

By way of background, this claim involved a challenge to County Durham and Darlington NHS Foundation Trust’s (“the Trust”) policies, which (1) allowed staff to use the changing room of their choice which corresponds to their affirmed gender (2) prohibits staff from wearing their uniform outside of work and (3) provides changing room facilities to allow staff to change into/out of their uniforms at work. In accordance with the policies in place, a trans woman chose to use the female changing rooms to change into/ out of their uniform. This was objected to by a group of biologically female staff members, who first complained to the Trust and then subsequently brought their allegations to the Employment Tribunal (“the Tribunal”). The claimants argued that by instituting these policies / allowing this conduct, the Trust contravened provisions of the Equality Act 2010 (“the Act”) which resulted in harassment, victimisation and indirect sex discrimination.

The claims had varying levels of success. On the harassment claim, the Tribunal found that while the individual employee’s actions did not constitute harassment, the Trust’s conduct did. The claims of indirect sex discrimination succeeded, with the Tribunal finding that the Trust’s policies prioritised the perceived rights of transgender employees over other employee’s entitlement to single-sex facilities, which amounted to a breach of the Workplace (Health, Safety and Workplace) Regulations 1992 (“the Workplace Regulations”). The victimisation claims were wholly dismissed, with the Tribunal determining that the actions of the Trust in responding to the complaints were reasonable in the circumstances.

Impact on employment practices liability & harassment claims

The decision, while only binding on the parties, could represent an expansion of employment practices liability. The Tribunal held that the Trust’s policies can constitute “conduct” for the purposes of section 26 of the Act. In practice, this means that if an employer adopts and implements a policy which is inconsistent with legislative and regulatory requirements (e.g. the Trust’s policies conflicting with the Workplace Regulations), its mere existence could amount to harassment. The Trust contended that they relied on internal and external guidance when creating their policies, however this was no defence to the policy’s unlawfulness. This suggests that employers cannot simply rely on guidance without undertaking an independent assessment of all applicable legal requirements.

The Tribunal’s distinction between personal liability and employer’s liability is an important feature of the case. The Tribunal’s decision confirms that employers may be directly liable for harassment arising for policies they adopt and implement, even where the individual employee acting under the policy is not personally liable. The Tribunal distinguished between the actions of the individual – who was simply acting in a way that was permitted under the policy by using the changeroom which corresponded with their affirmed gender– and the Trust itself, who created the conditions for the harassment through their policy implementation.

The Trust’s failure to take seriously and address the claimants’ concerns was in itself considered to amount to harassment. The dismissive attitude of senior management contributed to the Tribunal’s finding that the Trust had created a hostile and intimidating environment. This demonstrates that the manner in which a complaint is dealt with in a workplace can itself generate liability for employers.