Why are lawyers encouraging confusion about the law?

Following the For Women Scotland judgment there has been a flurry of interest by lawyers in providing complicated, confusing legal advice and opinions about what kinds of facilities employers need to provide; who is allowed into which workplace toilets and changing rooms; and how transgender people should be accommodated. 

The relevant law is the Health and Safety at Work etc Act 1974. Specific provisions are set out in the Workplace (Health, Safety and Welfare) Regulations 1992 and it is very clear. 

The Health and Safety Executive, which is the regulator, explains that employers have to provide facilities suitable for any worker, which includes separate facilities for men and women, (except where each toilet is in a fully-enclosed room lockable from the inside):

Following the Supreme Court judgment which confirmed that the meaning of man and woman in the Equality Act is the ordinary biological meaning, the EHRC issued an update explaining the practical implications of this in relation to single-and separate-sex facilities:

In short: employees must not let staff use opposite-sex facilities. They should consider the needs of transgender employees who may be more comfortable using a unisex option than the separate-sex toilets provided for their own sex. In general transgender employees should not be excluded or treated less favourably in toilets for their own sex: this would be gender reassignment discrimination, but it may be permitted for an individual to be excluded from these facilities where it is a proportionate means to a legitimate aim. 

This is also in line with the guidance in the EHRC’s Statutory Code for Employment, which is not being updated. 

It is very clear and there is nothing to wait for.

The only problem is that it requires saying “no” to trans-identifying employees who wish to use opposite-sex facilities, and “no” to Stonewall and other lobby groups that have misled employers about the law. Employers that have taken on and championed the unlawful approach must now take steps to undo the impact of years of training where they have misled, harassed and discriminated against employees who simply expected their legal rights to suitable and adequate workplace facilities to be met. 

Stonewall (and others) have encouraged employers to adopt an unlawful policy, and are still encouraging them to stall rather than take immediate action to bring their policy in line with the law. We have complained to the Charity Commission. 

Is it lawful to operate based on gender self-ID?

On Thursday 8th May Jason Coppel KC, Zoe Gannon and Ruth Kennedy from 11KBW held a webinar on the implications of the FWS judgment to which hundreds of lawyers tuned in online. 

They suggested there was ambiguity about the law, and said that it is likely that an employer could continue to operate a “self ID”, “trans-inclusive” policy of allowing anyone to use separate-sex facilities as long as the facilities which are labelled as separate-sex are fully-enclosed rooms. 

This is nonsense. 

The workplace regulations are clear that employers must provide separate-sex facilities or unisex fully-enclosed rooms. They do this by means of providing facilities with clear signage. If there is a sign on the door indicating it is for one sex only, then it is intended for one sex only, regardless of the nature of the facilities behind that door.

Employers are required to explain health and safety rules to employees. And employees are expected to follow the rules. 

The signs which indicate single-sex and separate-sex facilities are health and safety signs. 

What the signs explain is whether a facility is intended for use by members of one sex, or both sexes. They do not tell you the layout of the specific facilities behind the door. It may be a single toilet in a closed room, or a series of separate toilets. The doors to these may reach the floor and ceiling, or they might not. There may be a shower or a changing area. It may be communal or it may have curtains or cubicles. Whatever the physical facilities are they will be suitable for the intended users. 

It is not acceptable for a male staff member to peek behind any door with the “female” sign on it to check if there are floor-to-ceiling cubicles, or if it is a single room, and then decide that it is acceptable for him to reclassify these particular female facilities as unisex. Nor is it acceptable for his employer to tell him it is OK to do this, or to allow him to harass those that explain the rules or complain about him breaching them. He should, like all employees, follow all policies and signs put in place for health and safety. 

If the room is fully enclosed and the employer’s policy is that it is for everyone, then the sign on the door should be the unisex one.

Under the The Management of Health and Safety at Work Regulations 1999, employers are required to provide information to employees about health and safety, and to give them adequate training. And employees have responsibility (under rule 14) to use the equipment and devices provided by their employer safely, for their intended purpose. 

“In accordance both with any training in the use of the equipment concerned which has been received by him and the instructions respecting that use which have been provided to him by the said employer in compliance with the requirements and prohibitions imposed upon that employer by or under the relevant statutory provisions.”

Furthermore, employees have a responsibility to inform their employer: 

“of any work situation which a person with the first-mentioned employee’s training and instruction would reasonably consider represented a serious and immediate danger to health and safety; and

“of any matter which a person with the first-mentioned employee’s training and instruction would reasonably consider represented a shortcoming in the employer’s protection arrangements for health and safety.”

It is simply not lawful to tell a particular male employee, or any group of male employees, that they can ignore health and safety signs in a particular location, or where they happen to know that a women’s toilet is a lockable room, or where their immediate colleagues in that location have encouraged them, or where they think they “pass” as the opposite sex, or where no one says anything. 

This is not “inclusive”. It is unlawful. 

Health and safety rules and policies apply to everyone, everywhere throughout the organisation.

Employers are required to continuously assess the risks to the health and safety of employees (as well as the risks to the health and safety of others arising out of or in connection with the business). 

If they have employees who wrongly think that individuals can use opposite-sex facilities, this is a risk that they should address right now in order to comply with the relevant statutory provisions.

Where they have themselves created this risk, by messaging from the top, and through training (such as this training video made used in the civil service) suggesting that it is acceptable and “inclusive” to breach health and safety rules in this way, they should ensure that they broadcast the messages correcting this misinformation from the same level, and with similar reach and urgency. 

Read our guidance on what to do if your employer is not following Health and Safety law, including complaining to the regulator: