The final months of 2025 saw four Employment Tribunal (“ET”) judgments being handed down in cases relating to gender identity, protected beliefs, and the use of single-sex facilities in the workplace – in the cases of Lockwood v Cheshire and Wirral NHS Trust & Others (ET/240211/24) [2025] (“Lockwood”), Kelly v Leonardo UK Ltd (ETS/8001497/24) [2025] (“Kelly”), Peggie v (1) Fife Health Board and (2) Dr Upton (ETS/4104864/24) [2025] (“Peggie”) and Hutchinson & Others v County Durham and Darlington NHS Foundation Trust.

These are the first few ET cases to grapple with the Supreme Court’s landmark April 2025 ruling in For Women Scotland Ltd v The Scottish Ministers [2025] (“For Women Scotland”) – which held that “sex” for the purposes of the Equality Act 2010 (“EqA”) means biological sex at birth (irrespective of Gender Recognition Certificate status) and is a binary concept (i.e. either female or male), but also reiterated that those with the protected characteristic of gender reassignment are protected from all forms of discrimination (as explored in our article here).

We take a look at each of these judgments, in this series of four articles, and consider their implications for employers – starting with Lockwood in more detail below.

Lockwood v Cheshire and Wirral NHS Trust & Others

The first of the four judgments, Lockwood, held that a non-binary employee could not bring claims for harassment on the grounds of gender reassignment. It went on to find that, in any event, the Claimant was not harassed by their employer mistakenly misgendering them (i.e. not using their preferred pronouns) and/or using their name given at birth.

What were the facts of the case?

The Claimant (who was born female) applied for employment with the Respondent in 2021, as a cognitive behavioural therapist, under the name Heather Lockwood; noting on their application form that they were non-binary. On subsequently changing their name by deed poll to Haech Lockwood, in 2022 / 2023 they told colleagues that:

  • they wished to be known as Haech going forward,
  • they did not identify as female or male, but rather as trans / gender fluid,
  • they preferred the pronouns they / them, and
  • using their name given at birth caused them gender dysmorphia.

They asked the IT team to change their email signature accordingly.

Over the course of three months, there were a number of incidents (involving the IT systems, IT support staff, another therapist colleague, and a nurse) mistakenly misgendering the Claimant and/or using their name given at birth, in conversations, correspondence, documents and/or on the IT systems. The Claimant raised a grievance, and remedial action was taken, support offered, and apologies given. Mediation was also offered, but was refused.

The Claimant felt that the apologies given were insufficient, and subsequently brought claims for harassment on grounds of gender reassignment.

What did the ET decide?

In order to have the protected characteristic of “gender reassignment” under section 7 of the EqA, an individual has to “[be] proposing to undergo, [be] undergoing or [have] undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. Following For Women Scotland, “sex” is binary (i.e. either female or male). Though the Supreme Court did not directly consider the scope and application of section 7 of the EqA in that context, the ET in Lockwood, applying For Women Scotland, held that “reassignment” is either a change from female to male or vice versa.

In the Claimant’s case, their birth sex was female, but they did not identify with either of the two sexes (female or male). Though they had taken some steps to move away from the female sex (in their name and personal pronouns), they had taken no other steps to change their sex to male (medical or otherwise); they were not in the process of reassigning their sex from one to the other (i.e. from female to male) and had confirmed that they had no intention of doing so. Though the ET did acknowledge that the Claimant was in the process of moving to a different gender identity – that of non-binary – this was, in the ET’s view, not sufficient to constitute reassignment of sex. The ET therefore found that the Claimant did not have the protected characteristic of gender reassignment, and so their claims failed on that basis.

However, at the request of both parties, the ET nonetheless went on to consider whether the Claimant had been subjected to harassment. It found that, in any event, the Claimant had not been harassed by their employer occasionally, mistakenly, misgendering them and using their name given at birth over a short period of time. The ET stated that the Claimant had not shown facts from which it could conclude that the incidents complained of had the effect of violating their dignity – it commented that violating is a strong word; offending against dignity or hurting is not enough. The ET placed particular emphasis on the statutory requirement that it must be reasonable for the conduct in question to have the alleged effect, assessed objectively in context. In these particular circumstances, it had not been reasonable for the conduct complained of to have had the alleged effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, even if the Claimant had been distressed, upset, offended and/or frustrated by it. Relevant to these findings were the positive and proactive steps the employer had taken to quickly rectify mistakes when they were discovered, sincerely apologise and offer support where appropriate, and foster an environment of inclusivity (including through regular training for staff), and the fact that the conduct had been unintentional and/or done in error.

Key takeaways for employers

This judgment confirms that non-binary gender identity may not automatically be a protected characteristic under the EqA. This will, as ever, be very fact specific, and will depend on the extent to which the individual could be considered to be undergoing gender reassignment (as defined and discussed above).

Importantly, the ET’s decision here is somewhat at odds with the judgment in the 2018 case of Taylor v Jaguar Land Rover Ltd ET/1304471/18 (“Taylor”). In that case, the ET commented that Parliament had intended for the protected characteristic of gender reassignment to include a person at any point on a spectrum of moving away (or transitioning) from birth gender (rather than just those moving from one gender to another). In the particular circumstances of that case, the ET found that an employee who was transitioning from male to female, and referred to themselves as “gender fluid”, was protected under the gender reassignment provisions in the EqA. That finding would, on the face of it, seem to indicate that a non-binary individual could benefit from the protected characteristic of gender reassignment. However, Taylor was decided before the Supreme Court’s decision in For Women Scotland, and the circumstances of that case are also arguably quite significantly different to those in Lockwood – in Taylor the Claimant was transitioning from one gender (male) to another (female) whereas in Lockwood the Claimant had “moved away” from their birth gender (female) but had no intention of ever transitioning to the opposite gender (male). The ET in Lockwood was careful to note these distinguishing factors.

Either way, it is important to bear in mind that the decision in Lockwood is a first instance decision (as was the decision in Taylor), and is not binding on other ETs, which may well decide such matters differently in future cases. It may well also be subject to appeal, and it remains to be seen whether appellate courts would endorse the narrow interpretation adopted by the ET in Lockwood.

Organisations consequently should not necessarily seek to rely on Lockwood when drafting relevant policies or managing staff. Best practice here will remain fostering inclusive workplace cultures, and addressing issues raised by non-binary staff promptly and with care and compassion. Both to ensure that staff feel valued and supported, and to minimise legal risk for the organisation.

While Lockwood should not be treated as definitive authority, it is still instructive in highlighting some of the practical steps employers can take to create an inclusive environment for non-binary staff and to reduce both legal and employee-relations risk (this list is not intended to be exhaustive):

i. Ensure that IT and administrative systems foster inclusivity. In this case, the employer’s IT systems did not keep a record of preferred pronouns, because there was no option to do so. However, workarounds – such as adding pronouns manually, including them in email signatures, and exploring database changes – were introduced. The ET subsequently recognised that the employer had taken extensive steps to rectify the issue, and had demonstrated a genuine desire to foster an inclusive environment for non-binary staff. Communicating system limitations clearly to staff to manage expectations effectively, and finding interim solutions where needed, are both essential.

ii. Provide regular training for staff. In Lockwood, the employer had mandatory equality, diversity and inclusion (“EDI”) training for staff. It also had optional transgender awareness training, though this was missed by the IT team due to workload pressures. Additional training, including “Rainbow Badge” sessions, was also available. Ensuring that staff have regular training, which is updated periodically, will be key to fostering inclusivity in the workplace.

iii. Respond to and rectify any mistakes promptly, and deal with complaints sensitively. In this case, incidents of misgendering or using their name given at birth were followed by prompt apologies (where appropriate), offers of support, and corrective action as needed. Mediation was also offered, though it was refused. The ET commented that the tone of correspondence had been understanding and supportive throughout. Managers had shown a real intention to do their best and ensure that they “got it right” and, in most cases, had put in place positive steps to achieve this. Dealing with issues and any complaints raised by non-binary staff promptly, proactively and with care and compassion will therefore be crucial.

iv. Keep up to date on relevant case law. There are currently conflicting first instance decisions regarding whether non-binary staff will have the protected characteristic of gender reassignment. Employers should understand the current statutory definition contained in section 7 of the EqA (outlined above), and monitor case law developments to ensure that they are up to date on the current legal position. Bear in mind too that the Equality and Human Rights Commission is currently in the process of updating its Codes of Practice on these issues (in the wake of For Women Scotland), which could change the landscape here further.

As this area is in flux, and regularly evolving, organisations should ensure that they keep applicable policies under regular review, and obtain specialist legal advice where needed.

If you’d like to discuss any of the issues outlined in this article, please get in touch and our team of experienced Employment lawyers would be happy to help.

Catch up on the other articles in this series:

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further advice or information about management training which we offer.