The Case of Kelly v Leonardo UK Ltd: A Philosophical Belief Challenged
In Kelly v Leonardo UK Ltd, the Employment Tribunal had to consider whether a policy which permitted transgender women to use female toilets constituted direct or indirect sex discrimination or harassment.
Ms Kelly held the belief that biological sex is immutable, and people cannot have a gender identity separate from their biological sex. Case law has established that this is a philosophical belief which may be protected under the Equality Act 2010. Ms Kelly objected to her employer, Leonardo UK Ltd, allowing transgender staff to use the toilet facilities of their asserted gender identity rather than their biological sex. She argued that the toilet access policy and the language used in some of the staff networks put the views of employees who believed in gender identity theory above employees who (like her) had gender-critical views, as well as compromising women’s privacy, dignity and safety. Ms Kelly also stated that this type of language made her fearful of being accused of intolerance and transphobia.
After bringing a grievance which was not upheld, Ms Kelly brought Employment Tribunal proceedings alleging that the toilet access policy constituted harassment related to sex and direct and indirect sex discrimination.
Assessing Discrimination Claims: Harassment, Direct, and Indirect Sex Discrimination
All Ms Kelly’s claims were dismissed by the Tribunal. The Tribunal considered that, by providing separate male and female blocks and single-occupancy options, the company had complied with the Workplace (Health, Safety and Welfare) Regulations 1992, which require toilets to be “suitable and sufficient”. Her discrimination claims were dismissed on the following grounds:
- Harassment: The toilet policy constituted unwanted conduct related to sex, but it did not have the effect of violating Ms Kelly’s dignity or creating an intimidating, hostile or offensive environment. She continued to use the female toilets, and the policy had no material impact on her in practice. The Tribunal also noted that her grievance had been focused more on ideological disagreement with gender identity theory rather than concerns about a degrading environment.
- Direct Sex Discrimination: The policy of allowing employees to use facilities aligned with their gender identity applied equally to men and women and was not inherently less favourable to women. Leonardo UK did not treat Ms Kelly less favourably than a male comparator using toilets accessed by trans men. In addition, both male and female toilets had lockable cubicles, and separate single-occupancy toilets were available across the site.
- Indirect Discrimination: The policy did not put women at a particular disadvantage when compared to men, and Ms Kelly’s assertions of fear and harm to privacy were based on personal views rather than evidence of actual disadvantage. Even if any minor disadvantage had existed, the policy would have been justified as a proportionate means of achieving the legitimate aims of treating transgender employees lawfully and fostering inclusion.
Employer's Responsibilities: Consultation and Impact Assessments
This decision confirms that it is not necessarily discriminatory towards female employees to allow trans women access to female toilets, although this will depend on the precise facts and circumstances in each case. It was relevant here that no other member of staff had raised the issue of access to toilet facilities in staff surveys, an anonymous whistleblowing hotline, or through collective consultation. However, given its considerable size and resources, the Tribunal was particularly critical of the employer’s failure to carry out an initial information and consultation exercise with staff and recognised unions regarding the toilet access policy, as well as its failure to undertake an equality impact assessment.
