Employment tribunal and court judgments | December 2025

The claimant, HL, identifies as non-binary and uses they/them pronouns. Despite changing their name in January 2022 (and promptly notifying their employer of this change), between October 2023 and January 2024, HL faced repeated issues: misgendering  (referring to a person other than in accordance with their gender) by staff, deadname (their birth name or former name) appearing in systems and contracts, misgendering at a vaccination clinic, and being assigned a patient who requested a female therapist. HL maintained that these events fostered a degrading and hostile environment, in violation of protections under the Equality Act 2010.

The Tribunal dismissed all claims. The Tribunal’s decision relied on the rationale in For Women Scotland judgment, which stipulated that sex under the Equality Act is binary and biological, i.e. sex can only be male or female. Thus, since HL identified as non-binary and was not transitioning from male to female or vice versa, they were not undergoing a transition “for the purpose of reassigning their sex” within section 7 of the Equality Act.

Despite former cases considering non-binary identities to be within the scope of section 7 (albeit on different facts), this judgment suggests that the scope of gender reassignment protection may have been narrowed following the Supreme Court’s landmark judgment in For Women Scotland v Scottish Ministers.

Importantly, the Tribunal also dismissed HL’s claims because the incidents were isolated and inadvertent rather than malicious. In addition to immediate apologies, remedial steps had been taken including system updates and workarounds such as notes on service tickets being added to reflect pronouns, changes being made to internal systems and exploring the addition of pronoun fields to databases. The takeaway for employers on this point is to try to find interim solutions even where systems may be limited and document any remedial steps taken. Finally, consider prioritising targeted training sessions for those teams interacting with diverse colleagues and, where possible, release their time for attendance. We offer Gender Diversity Training and Managing Conflicting Beliefs Training. Reach out to Mollie Gascoigne for further information.

This was a first instance and non-binding decision, so future cases may reach a different conclusion on similar facts. This is an evolving and complex area of law, and if you’d like a deeper dive into this, please read our recent article here.

This case concerned an employee (Ms Thomas), who was offered a role with a total pay package of £110,000 which she declined, as deemed the remuneration as too low. The employer later hired another candidate on £100,000 but paid £15,000 in recruitment fees, making the overall spend higher than Ms Thomas’s offer. She argued this amounted to less favourable treatment because the employer was willing to spend £115,000 on the comparator but only offered her £110,000.

The claim was struck out by the Employment Tribunal and the Employment Appeal Tribunal reaffirmed this decision. It was confirmed that direct discrimination requires the claimant to be treated less favourably than a comparator, and on the facts Ms Thomas was in fact offered a higher pay package than the comparator. The employer’s recruitment costs were deemed irrelevant to the comparison.

When assessing discrimination claims, the comparison should be between the remuneration offered to each and not  overall hiring costs. The case also reminds employers to document the reasons for pay offers and decisions where possible, and communicate clearly why an offer is made and what factors influence it to avoid misunderstandings.

MK had worked at L Ltd since 2007 and was promoted to People and Capability Lead in 2024, based in the Edinburgh office (2,800 staff; 20% women; 0.5% transgender). In March 2023, MK informally asked whether toilet access was based on sex or gender identity. After no clear response, she raised a formal query in June 2023.

Later that month, L Ltd confirmed access would be based on gender identity. MK objected, citing concerns about privacy, dignity, and health and safety. She also holds gender-critical beliefs which are capable of protection under the Equality Act.

Following prolonged correspondence, MK brought a claim in September 2024 alleging:

1. The gender identity-based toilet policy was unlawful and discriminatory, and no single-sex facilities were provided.
2. Harassment and discrimination related to sex and her gender-critical beliefs.

The Tribunal accepted that the policy was unwanted by MK and related to sex because it determined access to facilities by gender rather than sex. However, it concluded the policy did not violate her dignity or create a hostile environment. MK’s objections stemmed from her gender-critical beliefs rather than any actual experience of harassment. All claims were dismissed.

As a first-instance decision, this ruling isn’t binding, so future cases could go a different way. What’s clear, though, is the complexity of balancing competing rights and the importance of robust governance when implementing inclusion policies..

This case is part of a growing body of disputes at the intersection of sex, gender identity and workplace rights. Tribunals are being asked to weigh competing protections in highly fact-sensitive contexts and decisions often turn on proportionality and practical impact rather than ideology alone. With societal debate and legal interpretation continuing to evolve, particularly following the Supreme Court’s decision on “sex” in For Women Scotland, employers should expect further claims and scrutiny in this area.  Specialist advice, bespoke training, proactive policy design, consultation and documentation will be critical to reducing risk as this remains one of the most dynamic and closely watched areas of employment law.