The update follows significant legal developments, including the Supreme Court's decision in For Women Scotland Ltd v Scottish Ministers, as well as broader changes in equality law, case law and guidance since the original Code was issued in 2011.
While the Services Code does not directly govern employment relationships (which are covered by the separate Employment Code of Practice), it is important for employers to be aware of its terms. Many employers are also service providers, operate customer-facing facilities, manage membership organisations or exercise public functions. In addition, the updated Services Code provides a strong indication of how the EHRC is interpreting the Equality Act 2010 and may influence future employment guidance.
Key changes in the updated Services Code
1. Updated guidance on sex and gender reassignment
The most widely discussed change concerns the treatment of sex and gender reassignment under the Equality Act. The updated Services Code adopts the Supreme Court's interpretation that, for Equality Act purposes, "sex" means biological sex. It also states that possession of a Gender Recognition Certificate (GRC) does not alter a person's sex for the purposes of applying the Act.
The Services Code also modernises terminology, replacing references to "transsexual" used in the original Services Code with the term "trans" when discussing people with the protected characteristic of gender reassignment.
2. Expanded guidance on single-sex services
A substantial section of the revised Services Code addresses the circumstances in which separate or single-sex services may be provided. It explains that where an Equality Act exception permits a single-sex service, access should generally be determined by biological sex. It also clarifies when service providers may lawfully restrict, modify or exclude access for trans people, provided that doing so is a proportionate means of achieving a legitimate aim such as safety, privacy or dignity.
For organisations operating changing facilities, health services, leisure centres, refuges or other gender-specific services, this guidance represents one of the most significant practical developments in equality law in recent years.
3. Greater clarity on balancing protected characteristics
The updated Services Code includes additional examples and explanatory material designed to help organisations navigate situations where the rights of individuals with different protected characteristics may appear to conflict. The EHRC has indicated that the revisions are intended to help duty holders make lawful, evidence-based decisions while ensuring all service users are treated with dignity and respect.
4. Updates reflecting case law and legislative developments
Beyond the sex and gender-related changes, the Services Code incorporates developments in other areas of equality law, as well as guidance and case law that have emerged since 2011. The revised Services Code therefore provides a much more up-to-date interpretation of how the Equality Act should be applied across a range of practical situations.
Why should employers be interested in the Services Code?
Although this Code is not the statutory employment code, there are several reasons HR teams should familiarise themselves with its contents:
1. It signals the EHRC's current interpretation of equality law. Although the EHRC has confirmed it intends to update employment guidance separately, employers should view the Services Code as an important indicator of the likely direction of future workplace guidance.
2. Many employers are also service providers. Retailers, healthcare providers, universities, charities, leisure operators, housing providers and public bodies are simultaneously employers and service providers. Decisions affecting service users may have implications for staff policies, workplace facilities and employee relations.
3. Increased risk of complaints and litigation. The revised Services Code addresses areas that have attracted significant public and legal debate. Employers whose operations include customer-facing environments may wish to review policies, facilities management arrangements and staff training to ensure decisions are evidence-based, proportionate and legally defensible.
4. Training and policy reviews may be required. Consideration should be given to whether employees, particularly those in customer-facing roles, need updated training that reflects the current legal position. Policies relating to customer interactions, workplace facilities, dignity at work and equality impact assessments may also need to be reviewed.
In a year of many employment law changes, the updated Services Code is a significant development. Although aimed primarily at service providers, public bodies and associations, it provides valuable insight into the regulator's interpretation of the Equality Act following recent legal developments. For employers, understanding the Services Code will be essential not only to support organisational compliance in customer-facing activities but also to prepare for the likely evolution of workplace equality guidance.
