In April this year the Supreme Court handed down its judgment in For Women Scotland v The Scottish Ministers. The judgment stated that, for the purposes of interpretation of the Equality Act 2010, the definition of "man", "woman" and "sex" meant biological sex only. While the judgment itself began by explaining that the purpose was to give those words a coherent and predictable meaning within the confines of the legislation, the unavoidable consequence has been a lack of clarity about how employers manage the practical, day-to-day impact of it.
What advice is available for employers?
The Equality and Human Rights Commission ("EHRC") published an interim update following the judgment. Following criticism of its content, the EHRC updated its position regarding the requirement for workplaces to provide single-sex toilets, changing and washing facilities. The updated guidance confirms that the requirements for workplaces in relation to the provision of these types of facilities are governed by the Workplace (Health, Safety and Welfare) Regulations 1992 ("the Regulations"). In summary this means:
- Employers must provide suitable and sufficient facilities including toilets and, in some cases, changing facilities and showers.
- These facilities may be mixed-sex where they are in a separate room lockable from the inside.
- Where washing and changing facilities are required under the Regulations, and where it is necessary for reasons of propriety, there must be separate facilities for men and women or separate use of those facilities.
The EHRC has made clear that the interim update is not intended to be formal guidance.
EHRC Codes of Practice
Both the EHRC Code of Practice on Services, Public Functions and Associations ("the Services Code") and the EHRC Code of Practice on Employment ("the Employment Code") need to be updated in light of the judgment. Frustratingly for employers, the EHRC has chosen to proceed with updating the Services Code, with the Employment Code being looked at thereafter. A number of organisations, including Acas, have criticised this approach, recommending instead that both Codes are updated in parallel. Although Acas is reviewing its own advice, it has indicated that without the updated Employment Code it will not have the clarity it needs to update it.
The EHRC launched a consultation on the Services Code in May 2025, which ran until 30 June 2025. Initially, the aim was to provide the final updated Code to the UK government by the end of July. Subsequent reports suggest that this will now be the end of August 2025. At the time of writing the final Code is still awaited.
The situation regarding an update of the Employment Code remains unclear. The EHRC's intention to update the Employment Code only once the Services Code was finalised pre-dates the Supreme Court judgment, and this still appears to be the intention. As yet, no timescale for the update has been provided.
What should employers be doing?
The current lack of clarity on this issue means an increased risk of litigation for employers. Until more clarity is available, employers can take steps to mitigate their risk. Good communication is essential, engaging with and providing reassurance to affected employees and managing any issues with sensitivity. As always, good practice means making contemporaneous notes of decisions that are taken, and the reasons for them. Where employers are unsure what they should be doing, legal advice should be sought.
