Court of Appeal rules training repayment clause unenforceable
The Court of Appeal has provided important guidance on the enforceability of training repayment clauses in employment contracts.
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The ET ruled that requiring women to share changing rooms with a trans woman was harassment and indirect sex discrimination, stressing evidence-based employer decisions.
29 January 2026
Case Study
Hutchinson and others v County Durham and Darlington NHS Foundation Trust, an employer that allowed a trans woman to use female changing rooms was found liable for indirect sex discrimination and harassment on the grounds of sex.
The Trust operated a policy permitting employees to use changing rooms in line with their self-declared gender identity. A trans woman employed by the Trust began using the female changing rooms and Ms Hutchinson and several other female employees who also used those facilities raised concerns. The Trust declined to amend its policy and the employees brought claims before the ET.
Case Study
The ET confirmed that it was required to interpret the Equality Act 2010 in light of the Supreme Court’s decision in For Women Scotland (which established that references to ‘sex’ mean biological sex).
Applying that approach, the tribunal found that requiring Ms Hutchinson and her colleagues to share a changing room with a biological male trans woman, and failing to address their objections to the Trust’s policy permitting biological males to access female changing rooms, amounted to harassment related to sex.
In relation to indirect sex discrimination, the tribunal identified two relevant PCPs: (i) allowing access to single-sex changing rooms on the basis of self-declared gender identity; and (ii) prioritising the perceived rights of transgender employees to use facilities aligned with that identity over the rights of other employees to single-sex facilities. While these PCPs applied on their face to both men and women, the tribunal found they placed women at a particular disadvantage. Women were more likely to experience distress, fear or humiliation when required to share communal changing facilities with a member of the opposite biological sex.
The Trust failed to justify the PCPs, and therefore the indirect discrimination claim succeeded. This finding is important in that the other cases either did not consider the issue of indirect discrimination or, for those that did, reached a different finding.
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The Court of Appeal has provided important guidance on the enforceability of training repayment clauses in employment contracts.
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