TUPE and Indirect Discrimination in Anne & Others v Great Ormond Street Hospital
EAT confirms leaving transferred staff on inferior terms can amount to indirect discrimination, even under TUPE.
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The ET dismissed claims from an employee over trans colleagues using female toilets, highlighting best practices for employers on facility access and consultation.
29 January 2026
Case Study
In this case, Ms Kelly (“the Claimant”) raised concerns about the use of female designated toilets by three employees who had transitioned from male to female. The site had female and male toilet blocks and several unisex accessible (single person use) toilet rooms.
Leonardo UK’s policy allowed use of toilet facilities by reference to gender identity. The Claimant continued to query this and ultimately raised a formal grievance in June 2024 in which she asserted, amongst other things, that in failing to provide single sex toilets she was being indirectly discriminated against by her employer on grounds of her sex and her protected belief that sex is immutable. Her grievance was rejected. Ms Kelly appealed against the grievance outcome and her appeal was similarly rejected. In the meantime, Leonardo made changes to its existing toilet facilities so that there would be more unisex single room facilities (resulting in fewer female-only designated facilities).
Ms Kelly brought claims in the ET for direct and indirect sex discrimination, as well as harassment related to sex. (Despite what she had raised in her grievance, she did not pursue any protected belief discrimination claims on the grounds of her gender critical beliefs). Her claims were based on the company permitting the use of female toilet facilities by colleagues who are trans women / biological men and its redesignation of toilet facilities.
Case Study
The ET dismissed all of her claims.
Several factors were relevant to the tribunal’s decision, including the “inconsistency” in her evidence and her continued use of facilities. In this context, the fact that no other employee had raised concerns was relevant.
In particular, the Tribunal noted that trans women had already been using the female toilets for some time without incident; that the Claimant’s own use of the facilities had not changed; and that she had not experienced any specific event amounting to detriment or unwanted conduct. In addition, single-occupancy toilets were available across the site.
In coming to its decision, the ET emphasised that large employers should consult staff and consider equality impacts when introducing or clarifying toilet access arrangements. This would constitute best practice for all employers.
Finally, the ET found that the For Women Scotland case applied to the Equality Act and did not necessarily extend to the Workplace Regulations 1992 governing the provision of toilet facilities.
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