An engineer who took aerospace giant Leonardo UK to an employment tribunal for having to share women’s toilets with transgender colleagues has lost a discrimination claim.
Maria Kelly alleged harassment related to sex, direct sex discrimination and indirect sex discrimination.
Ms Kelly took action after lodging a formal grievance with the company.
The tribunal was heard in Edinburgh in October, but all of her claims have now been dismissed by employment judge Michelle Sutherland.
Ms Kelly said she believes the outcome “fundamentally misunderstands both the law and my case”, as she announced plans to appeal.
In a written judgment published on Wednesday, Ms Sutherland said Leonardo UK’s position was that “one out of 9,500 employees raised a concern about the impact of the policy despite multiple means to do so”.
She found there was no “disadvantage” due to the policy.
Ms Sutherland added: “Any fear or privacy impact could be addressed by affected female staff making recourse to the single occupancy facilities.
“Any effect on risk of assault arising from 0.5% of men using the women’s toilets instead of the men’s toilets would not have changed the overall risk profile across toilet facilities generally.
“In the circumstances of this case, the toilet access policy was in the alternative a proportionate means of achieving a legitimate aim.”
The case followed the UK Supreme Court judgment in April which ruled the terms “woman” and “sex” in the 2010 Equality Act refer to a biological woman and biological sex.
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Ms Kelly, people and capability lead for the firm, had told the tribunal she began using a “secret” toilet at her workplace after encountering a transgender colleague in a female bathroom in March 2023.
She said she had first become aware of a transgender person using the female toilets in 2019 but did not raise the issue with the company at the time as she feared being labelled “transphobic” or being put on the “naughty list”.
Ms Kelly said: “I am of course disappointed by the judgment, which I believe fundamentally misunderstands both the law and my case.
“I intend to appeal, and I will ask the EAT (Employment Appeal Tribunal) to consider expediting my appeal as the decision risks further confounding the already widespread misunderstanding and defiance of the Supreme Court’s judgment in For Women Scotland.”
Maya Forstater, chief executive of charity Sex Matters, said: “This judgment interprets the law as transactivists would wish it to be, and is incompatible with the Supreme Court ruling in For Women Scotland in several places.
“It is incredible that even after the highest court in the land has ruled that the law recognises men and women in terms of biological sex, there are lower courts still trying to see the world in terms of gender identity.”
Leonardo UK acknowledged the tribunal’s judgment.
A spokesperson for the firm added: “We recognise that the process has been demanding for everyone involved and we appreciate the professionalism shown by colleagues who supported the proceedings.
“Our focus now is to ensure that workplace conduct remains respectful and that our facilities’ policies continue to meet legal standards.
“We will review the forthcoming Equality and Human Rights Commission guidance when it is published and will make any adjustments that are required.
“Leonardo remains a supportive and inclusive environment for all employees.”
