Claimant successful in harassment claim when she had been placed on leave having complained about a doctor, born as a male but living as a female, using the female changing spaces.

The claimant worked as a nurse for more than 30 years and claimed that she was subject to unlawful harassment when she was expected to share a changing room with the second respondent, Dr Upton. Dr Upton was provided with a birth certificate stating sex as male shortly after birth.  However, since January 2022 Dr Upton has identified as female and has been open about that in public since around August 2022. The Tribunal regarded the various ways in which Dr Upton is feminine in style, uses the names Elizabeth/Beth and female pronouns.

An incident arose on Christmas Eve 2023 when both the claimant and the second respondent were in the changing room at Victoria hospital in Kirkcaldy.  Dr Upton subsequently made an allegation of bullying and harassment and cited concerns about patient care.  This led to the claimant being placed on special leave.  The issue was the extent to which these rights could be balanced and the actions taken by the respondent.

The Tribunal recognised that the claimant’s concern at having to share the changing room with someone who was born a man, and whom she regarded as a male, was ‘entirely genuine’. The claimant regarded the changing space as a space for those who were biologically female. There were a whole series of complaints made in relation to the event and subsequent suspension and investigation. The extent to which this led to complexities within the law and the various views on the law was clear with the judgment running to over 1,200 paragraphs without including the appendices.

The Tribunal decided that the claimant had been harassed as the respondent had not revoked Dr Upton’s permission to use the women’s changing room on an interim basis after the initial complaint had been made and until different work rotas for the pair could be brought into effect.  The Tribunal also found that there was an unreasonable length of time to investigate the patient care allegations that had been made against the claimant. The extent of those was that the claimant had walked out on a patient to avoid Dr Upton. They had been brought up shortly after the Christmas Eve 2023 event, in January 2024, but the claimant was not cleared of those allegations until July 2025.

This is only a Tribunal decision so it is possibly unfair to expect that it will resolve all issues or give absolute clarity on how matters relating to trans rights/gender critical ideology are to be dealt with within the workplace. The For Women Scotland decision from the Supreme Court gave an overarching decision and from that there will percolate many questions and issues.  It will be a while before there can be clarity given to how employers are to resolve these matters. The Tribunal here does not provide this clarity but it does outline how there should be an attempt at balance and that investigations should take a reasonable length of time and the 18 months faced by the claimant here was unreasonable.

You can read the case in full here.