Toilets in the workplace – the legal issues

Few workplace issues generate as much heat, confusion and anxiety as toilets. What was once a purely practical facilities question has become legally complex, politically charged and emotionally sensitive. Employers are expected to balance privacy, dignity, safety, inclusion and equality, all within a legal framework that is still evolving.

Two new tribunal decisions in the last week or so, alongside the Supreme Court’s ruling in For Women Scotland, have sharpened the focus on how toilets are provided and used at work. At the same time, official guidance has shifted, been withdrawn, or remains frustratingly high-level. The result is uncertainty for employers and employees alike.

This article looks at the legal framework governing workplace toilets, how the courts and tribunals have approached recent disputes, and what employers can realistically do now, recognising that this remains a moving feast.

Latest cases referred to: Peggie v Fife Health Board (8th December 2025) and BM Kelly v Leonardo UK (3rd December 2025).

Why toilets have become a legal issue

Toilets engage several overlapping areas of law. Health and safety legislation requires employers to provide suitable sanitary facilities. Equality law prohibits discrimination and harassment and protects multiple characteristics that can come into tension. Human rights law recognises privacy and dignity interests.

Historically, toilets were segregated by sex with little controversy. The emergence of legal protections for trans people, alongside recognition that beliefs about sex are also protected, has brought those assumptions into question. Employers now face competing claims, often sincerely held on all sides.

The legal difficulty is not whether trans people are protected – they are. Nor whether women have rights to privacy and dignity – they do. The difficulty lies in how those rights interact in shared physical spaces, particularly where legislation does not spell out clear answers.

The core legal framework

Any discussion of workplace toilets starts with three main sources of law.

First, the Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide “suitable and sufficient” sanitary conveniences. Regulation 20 refers to separate facilities for men and women, subject to limited exceptions. These regulations are not equality legislation, but they remain in force and are often overlooked.

Secondly, the Equality Act 2010 protects individuals from discrimination, harassment and victimisation at work. Relevant protected characteristics include sex, gender reassignment, religion or belief, pregnancy and maternity, disability and others. Importantly, none of these characteristics automatically overrides another.

Thirdly, the Human Rights Act 1998 incorporates Article 8 of the European Convention on Human Rights, which protects private and family life. While not directly enforceable between private individuals, tribunals increasingly consider privacy and dignity when assessing workplace treatment.

These strands do not always pull in the same direction.

The Equality Act and competing rights

The Equality Act is often misunderstood as requiring employers to prioritise inclusion at all costs. That is not what it says.

Gender reassignment is a protected characteristic. It protects people who are proposing to undergo, are undergoing, or have undergone a process of reassignment. It does not depend on surgery, hormones or a Gender Recognition Certificate. Employers must not discriminate against or harass trans employees because they are trans.

Sex is also a protected characteristic. Women are entitled to protection from discrimination and harassment because they are women. That includes protection of dignity and privacy in appropriate circumstances.

Belief is also protected, including gender critical beliefs, provided they meet the legal test. This has been clear since Forstater, and reaffirmed since.

The Act recognises that conflicts can arise. It allows for proportionate limitations where there is a legitimate aim. What it does not provide is a simple rule that resolves toilet access in every workplace.

For Women Scotland and the meaning of sex

The Supreme Court’s decision in For Women Scotland Ltd v Scottish Ministers has become central to these debates. The Court held that, for the purposes of the Equality Act, “sex” means biological sex, not self-identified gender. A person’s legal sex can change only through a Gender Recognition Certificate, and even then, that does not rewrite every statutory context in which sex is relevant.

The Court was careful to say that this was not a judgment about social policy or lived identity. It was an exercise in statutory interpretation. However, its implications are significant. It undermines the assumption, previously common in some guidance, that sex and gender can simply be treated as interchangeable under equality law.

For workplace toilets, the decision matters because it re-centres biological sex as legally relevant. That does not automatically require exclusion of trans people from facilities aligned with their gender identity. But it does mean that employers cannot assume that treating toilets as mixed-sex by default is legally neutral.

Peggie v Fife Health Board – harassment by mishandling

In Peggie v Fife Health Board, the Employment Tribunal considered a dispute between a nurse with gender critical beliefs and a trans woman doctor using the female staff changing room. The Tribunal rejected claims of discrimination and victimisation and dismissed all claims against the individual doctor.

However, it upheld harassment claims against the employer in four specific respects. These included failing to revisit arrangements after concerns were raised, allowing repeated encounters that caused distress, taking an unreasonably long time to investigate complaints, and issuing unclear instructions that affected dignity.

The importance of Peggie lies less in where the Tribunal came down on toilet use, and more in how it assessed the employer’s process. The Tribunal accepted that employers can face genuine difficulty balancing competing rights. What tipped the case into harassment was delay, lack of clarity, and poor handling once conflict was obvious.

In short, it was not the existence of competing rights that caused legal liability, but the failure to manage them carefully.

Kelly v Leonardo UK – toilets, sex and proportionality

Another recent decision in B M Kelly v Leonardo UK Limited went directly to the question of toilet access. The claimant argued that a policy permitting access to toilets based on asserted gender rather than sex amounted to harassment and sex discrimination.

The Tribunal dismissed all claims. It found that the operation of the toilet access policy did not amount to harassment, direct discrimination or indirect discrimination. Importantly, it engaged in a detailed analysis of Regulation 20 of the 1992 Regulations, the Equality Act, and the effect of the policy in practice.

The Tribunal accepted that the employer had legitimate aims, including inclusion and dignity for trans staff, and that the provision of single-occupancy toilets alongside male and female facilities was a proportionate means of achieving those aims. The evidence did not support the conclusion that the claimant had suffered the claimed disadvantage.

What makes Kelly particularly significant is its careful fact-sensitive approach. The Tribunal did not say that gender-based access is always lawful. Nor did it say that sex-based access is required. It examined the physical layout, the availability of alternatives, the actual impact on staff, and the controlled nature of the workplace. 

What these cases tell us – and what they do not

Taken together, For Women Scotland, Peggie and Kelly do not create a single rule for workplace toilets. Instead, they underline that:

• sex remains a legally meaningful concept
• gender reassignment is a protected characteristic that must be respected
• beliefs about sex are protected and cannot be ignored
• employers must balance rights, not pick favourites
• process, evidence and proportionality matter enormously

They also show that tribunals are reluctant to impose blanket solutions. Outcomes depend heavily on context.

The role of official guidance

Employers often rely on guidance from bodies such as ACAS, the EHRC and government departments. This guidance has, however, been inconsistent over time. Some documents have been withdrawn or revised. Much of it is deliberately high-level.

ACAS guidance emphasises dignity and respect, encourages dialogue, and suggests flexible solutions such as single-occupancy facilities where possible. It does not mandate a particular model.

The EHRC Code of Practice recognises that single-sex services can be lawful and that exclusion of trans people may be justified where it is a proportionate means of achieving a legitimate aim. It does not state that toilets must always be accessed by gender identity.

The key point is that guidance does not override legislation. Employers should treat it as informative, not determinative.

Health and safety obligations are not optional

One striking feature of recent cases is how often the Workplace (Health, Safety and Welfare) Regulations are sidelined. These regulations remain binding law. They require suitable facilities and, as tribunals have acknowledged, they use sex-based language.

While the regulations allow flexibility, they do not mandate mixed-sex toilets as a default. Employers who remove all sex-segregated facilities should be confident they can justify that decision, not just on equality grounds, but on health and safety grounds too.

Privacy, dignity and evidence

Tribunals repeatedly emphasise the importance of evidence. Assertions about fear, risk or discomfort need to be grounded in facts. Equally, employers should not assume that because no one has complained, no one is affected.

Privacy and dignity are not abstract concepts. They relate to physical layouts, usage patterns, workforce demographics and cultural context. What works in one workplace may not in another.

Why this remains a moving feast

The law in this area is still developing. Further appeal court decisions are likely. Political and regulatory changes may affect guidance. Employers should resist the temptation to look for a once-and-for-all answer – this article certainly isn’t it!

What is clear is that simplistic approaches are risky. Declaring that “anyone can use any toilet” without analysis is as problematic as rigid exclusion without justification.

Practical lessons for employers

There is no single lawful model for workplace toilets. But there are clear process lessons.

Employers should audit their facilities and understand how they are actually used. They should identify which protected characteristics are engaged, not just one. They should consult meaningfully, document decisions, and be prepared to explain why a particular approach is proportionate in their context.

Providing a mix of options, including single-occupancy toilets, is often sensible. Clear communication matters. Delay and silence rarely help.

Above all, employers should recognise that this is not about ideology. It is about managing real people, with real needs, within a legal framework that requires care and balance.

Final thoughts

Toilets in the workplace have become a legal issue because they sit at the intersection of law, culture and lived experience. The courts have not imposed simple rules, and that is unlikely to change soon.

For now, the safest approach is thoughtful, evidence-based decision-making, grounded in the law as it stands and alive to the fact that it may shift again.

If you would like advice on reviewing your workplace facilities, handling staff concerns, or updating policies in this area, I would be very happy to help.