EHRC Code of Practice updated: what does it mean for employers?

The EHRC’s Code of Practice for Services, Public Functions and Associations (the Code) on the provision of services was published in the summer, and we looked at the practicalities in part 1 of this blog. 

It updates the original code to reflect the Supreme Court decision in the For Women Scotland Case (FWS) in April 2025.  As a reminder, this case confirmed that “sex” means biological sex for the purposes of the Equality Act 2010. 

Unfortunately, there is no updated code for employers, so we remain at the mercy of case law on issues affected by the decision in FWS, namely single-sex provision in the workplace.  As a result, some of it over the last twelve months has been confusing, and advice published has been contradictory. Despite this ongoing confusion and considering the case of Good Law Project v EHRC (High Court), we can provide some clarification. What is clear is that employers must consider all the needs of their employees and accommodate as best they can for these needs.

Can employers just follow what is said in the Code regarding provision of services?

Whilst the guidance in the Code is useful for employers, it is key to note that the law governing single sex provision differs depending on whether an organisation is a service provider or an employer. For employers, the starting point is the Workplace (Health, Safety and Welfare) Regulations 1992 and then the anti-discrimination provisions in the EqA 2010.  For service providers, the starting point is Schedule 3 of the EqA 2010.  That said, where employers also provide toilets as service providers (to visitors/contractors/clients), the Code will apply. 

Do employers have to provide single sex toilets for their workforce?

The Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide suitable and sufficient sanitary conveniences (Reg 20(1)) for men and women. Conveniences are not suitable unless there are separate facilities for men and women, except where each convenience is in a separate lockable room (Ref 20(2)). The key to the description of this room is that the walls go from floor to ceiling. The Regulations require there be sufficient single sex provision – it does not provide that all provision must be single sex. 

Does the definition of men and women under these Regulations mean biological sex as it does in the EqA 2010?

The High Court ruled, in the case of R (Good Law Project) v Equalities and Human Rights Commission, that, following the FWS case, these Regulations do refer to biological sex. Single sex toilets provided by an employer are only suitable if they are used by employees of the same biological sex or if the convenience is in a secure, lockable room where the walls go from floor to ceiling. These rooms do not have to contain a wash basin – the Regulations permit those to be in a shared space.

Which toilets should transgender employees use?

The judgement is clear that transgender employees should not be required or forced to use the toilet according to their biological sex. If an employer fails to provide some alternative provision to single sex toilets, then the employer is at risk of a discrimination claim on the grounds of gender reassignment.  However, if the employer permits trans employees to use toilets not aligned to their biological sex, they are in breach of the Regulations for not providing sufficient and suitable single sex toilets.  The employer has various options - here are the most obvious;

Option one – an employer could provide single-sex toilets in accordance with the Regulations, alongside gender-neutral accessible toilets for employees who do not wish to use the single-sex facilities. For example, some accessible toilets could be designated as gender-neutral facilities. This is likely to be the most practical option. Employers should, however, monitor usage to ensure that there remain sufficient accessible facilities for disabled employees if other colleagues are also using toilets designed for disabled use. There is also a potential discrimination risk in this approach, as trans employees may feel that being directed or expected to use accessible facilities effectively “outs” them.

Option two – an employer provides single (biological) sex toilets plus gender neutral toilets (other than accessible toilets).  This option further reduces the risk of discrimination claims from disabled and trans employees, although it will demand more extensive changes to the facilities.  If there are not sufficient single sex toilets, then the gender-neutral provision must meet the requirements of the Regulations, e.g. they must be in lockable cubicles with floor-to-ceiling walls.

Option three – an employer provides toilets which are all gender-neutral.  This would be compliant with the Health and Safety Regulations provided that the toilets are within lockable cubicles with floor-to-ceiling walls. It would reduce the risk of discrimination claims from trans employees, although there is a risk of an indirect sex discrimination claim.     

What about changing rooms? 

Where employees need to wear uniform/special clothing and are required to get changed whilst at work, the Regulations again require an employer to provide suitable and sufficient changing facilities for men and women (Reg 24).  Again, men and women means biological sex.  Where changing rooms are required in a workplace, an employer would then need to consider providing gender neutral changing facilities for staff who do not want to use the provision for their biological sex. 

For employers, this may be an easier change to make; reallocating changing rooms to gender neutral provision will be substantially easier than creating new bathrooms and toilets.  The Regulations also permit changing rooms to be used by both genders but separately.  This permits a “one-in-one-out” approach, although it might not be practicable where there are more staff needing to change at the same time. 

How do we ensure that all employees know which bathroom to use?

Clear signage is important, backed up by information provided during induction on what toilet provisions are available.  There should be no direct “policing” of toilets, nor people challenged and questioned on which facility they are using.  Such behaviour could be considered harassment.  If there is concern, it should be brought to the attention of a manager or HR to address.  

Case law has demonstrated the importance of addressing these issues sensitively and confidentially with those concerned and being willing to have the conversations and look to finding a solution.    The balance of avoiding knee-jerk reactions but still taking action is a tricky one for employers.  The High Court noted, “those who provide facilities whether to the public or to their employees should comply with the law but also be guided by common sense and benevolence rather than allow themselves to be blinkered by unyielding ideologies”. 

Take away points

• Audit your current facilities; what provision do you have and are there any gaps which could make you vulnerable to a discrimination claim?
• Where you provide facilities as both a service and for employees, address your obligations under each role.  Whilst the starting point is different, the overarching theme that all users and employees must have provision where they feel comfortable applies to both. 
• Once you have identified the gaps, what can be done reasonably, taking into account the building and cost to fill these gaps and improve your provision?
• If you rent the building, do you need to discuss the provision with the landlord?
• Ensure staff are aware of all the toilets provided throughout the building so understand the extent of the provision made.
• Ensure all toilets are clearly marked and signposted.
• If a disabled toilet is also a gender-neutral provision, monitor its use and whether additional accessible provision is needed for disabled employees. 
• Involve employees in discussions about provision and how to improve it moving forward. Obviously, try to ensure this group is as diverse as possible and represents the different needs of the workforce. 

For further support or discuss your specific arrangements, please contact our Employment Team.