The Case of Kelly v Leonardo UK Ltd: A Philosophical Belief Challenged
In Kelly v Leonardo UK Ltd, the Tribunal considered whether the Respondent’s approach to workplace toilet access (permitting access by reference to asserted gender identity rather than sex) amounted to harassment related to sex, direct sex discrimination, or indirect sex discrimination under the Equality Act 2010.
Ms Kelly held the belief that biological sex is immutable, and people cannot have a gender identity separate from their biological sex. 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 employer’s stance on it) 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.
Ms Kelly also stated that this type of language made her fearful of being accused of intolerance and transphobia.
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 a sufficient number of separate male and female toilet blocks and lockable single-occupancy options, the company had complied with the Workplace (Health, Safety and Welfare) Regulations 1992, which require toilets to be “suitable and sufficient”. The Tribunal also noted that compliance with Regulation 20 is enforceable through criminal law (rather than a free-standing civil claim), but it was relevant background to the Equality Act analysis.
Her discrimination claims were dismissed on the following grounds:
- Harassment: The toilet access approach amounted to unwanted conduct related to sex, but it did not have the effect of violating Ms Kelly’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. She continued to use the female toilets, the approach had no practical impact on her, and she was found not to have been upset by it (although she was annoyed).
- Direct sex discrimination: The approach applied equally to men and women and, on the pleaded case and evidence, there was no basis to conclude it was inherently less favourable to women or that it violated women’s privacy but would not violate men’s privacy.
- Indirect sex discrimination: Ms Kelly did not establish that the approach put women, as a group, at a particular disadvantage compared with men (or that it caused her individual disadvantage) on the evidence at the Edinburgh site. In any event, the Tribunal found that any disadvantage would have been minor and the approach would, in the alternative, have been objectively justified.
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. This decision illustrates that, on the facts found by the Tribunal, the employer’s approach to toilet access did not amount to harassment related to sex or direct/indirect sex discrimination, but the outcome was fact-sensitive and the Tribunal recognised that similar arrangements could, in different circumstances, have a prohibited effect. 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 consult or warn staff (including via the recognised trade union, the JCC and staff networks) before introducing the toilet access policy, and the fact staff were not made aware of the change until it was disseminated through the JCC minutes in June 2024, as well as its failure to undertake an equality impact assessment. The Tribunal described an equality impact assessment as best practice (rather than compulsory for a private sector employer), and treated the absence of consultation and an impact assessment as part of its broader evaluation of the evidence and proportionality.
