Employment Law Coffee Break: The World Cup, provision of workplace facilities, and our June HR Pensions Spotlight

Key areas to address include holiday requests, sickness absence and flexible working. With some matches running into the early hours, staff may be drinking later than usual. Employers should remind staff that attending work under the influence of alcohol is unacceptable and may lead to disciplinary action. Likewise, interest in match results and commentary may see an increase in internet and social media use during working hours. This concern applies equally to employees working from home, where employers have less visibility over activities, and relevant policies should be communicated and applied consistently to home workers as well as those in the workplace.

It will be important to ensure that managers are aware of the organisation’s policies and that they are applied consistently and fairly across the whole workforce. Employers must also be alert to discrimination risks. The Equality Act 2010 protects employees from discrimination on grounds of race and nationality, and these protections apply to workplace behaviour during sporting events. 

If special arrangements are made for home nation fans (such as greater flexibility around kick-off times), the same arrangements should be offered to fans of other nations. Employers should make clear that harassment linked to the event, including hostile or racist remarks about a particular country or its supporters, will not be tolerated and may result in disciplinary action. Any arrangements put in place specifically for the World Cup should be communicated clearly to all employees, and managers may also wish to remind staff to be respectful of each other's loyalties.

Employers should also be prepared to address the repercussions of any employee conduct outside work. The majority of UK matches will kick off in the late evening and be watched at pubs and fan parks across the country; news of incidents or bad behaviour can spread rapidly on social media. It is well established that out-of-work misconduct can, in appropriate circumstances, warrant disciplinary action where it affects the employer’s reputation or workplace relationships. Staff should be reminded of the behaviours expected of them, both inside and outside the workplace, ahead of the tournament. 

By reviewing policies now and clearly communicating any World Cup arrangements in advance, employers can manage risks while turning the tournament into a positive opportunity to strengthen employee engagement and team spirit.

Updated Services Code and further tribunal ruling on facilities: what does this mean for workplaces?

Updates to the EHRC Services Code

Following the Supreme Court's ruling in For Women Scotland Ltd v The Scottish Ministers in April 2025 (which confirmed that "sex", "woman" and "man" refer to biological sex for the purposes of the Equality Act 2010), the Minister for Women and Equalities laid an updated Code of Practice on the Provision of Services, Public Functions and Associations (the Services Code), after consultation, before Parliament on 21 May 2026. It adopts the Supreme Court's definitions in full, as well as reflecting a wider range of legal developments. 

Parliament has 40 days to consider the updated code; if there is no resolution to reject it in that period, an order can be made to bring it into force. Once in force, it will be admissible in evidence before tribunals and courts and any relevant provision must be taken into account.

While the Services Code does not apply directly to employment, the Minister for Equalities confirmed in Parliament on 1 June 2026 that "its explanation of the Equality Act 2010 - particularly around unlawful discrimination and harassment - will be relevant to and helpful for employers in considering how best to comply with their obligations under that legislation." The code also provides guidance which will be equally helpful in the employment context around challenging an individual and the data protection considerations which arise.

Under the Equality Act, services must be provided without discrimination. Where facilities are provided on the basis of single or separate sex, the Equality Act enables service providers to provide facilities on this basis without risk of sex discrimination claims via a statutory exception, provided, among other things, that to do so is a proportionate means of achieving a legitimate aim. The code is clear that permitting individuals to use such facilities on the basis of their gender identity rather than their biological sex will mean the exception is lost, leaving the service provider exposed to claims of unlawful sex discrimination from those who are excluded from the facilities and could give rise to harassment claims from those who using single-sex services with the expectation that this is based on biological sex. 

The code does not provide for a mandatory approach that must be adopted; the proportionality exercise will be fact specific. It states that where a service is one that everyone needs, such as access to toilets, it is very unlikely to be proportionate to place a trans person in a position where they have no service available to them at all. Where a service provider fails to act proportionately in this respect, it will be exposed to claims of direct or indirect discrimination on grounds of gender reassignment. 

The code encourages service providers to consider alternative arrangements, additional provision or mixed-sex services (being services which are available to all) alongside any single-sex offering and sets out worked examples, including:

• A shopping centre that undertakes a renovation and, recognising that requiring trans users to use facilities designated for their biological sex could cause distress or safety risks, decides to provide toilets in individual lockable rooms with hand-basins, accessible to anyone regardless of sex, alongside its separate-sex provision.
• A small advice centre that designates its accessible toilet, which also has baby-changing facilities, as available to anyone who prefers not to use the toilet for their biological sex. This is noted as likely to be proportionate given the size and resources of the centre, subject to ongoing monitoring of any impact on trans and disabled people.

The code recognises that alternative or supplementary arrangements will not always be achievable: for example, because of the type of service being offered, the needs of service users, the physical constraints of the building, or associated disproportionate financial costs. In such cases, the proportionality of any existing arrangement will need to be carefully assessed on the specific facts, considering all affected groups.

A record should be kept of the reasons for any decision made. 

Tribunal emphasises the importance of consultation on facilities policy

This month has also seen a tribunal decision handed down in which an employee has succeeded in claims of indirect discrimination and harassment arising from her employer's policy of permitting trans colleagues to use toilet and changing room facilities corresponding to their gender identity rather than their biological sex. The policy stated that it was "not acceptable" to require a trans person to use only disabled or unisex toilets unless those were the only facilities available or preferred by the trans person.

The employer conceded that the policy placed women at a group and individual disadvantage. In considering whether or not the employer's response was proportional, the tribunal found that the employer had not genuinely considered alternative provision for trans employees, such as gender-neutral facilities, before extending access to existing single-sex spaces. Providing a gender-neutral option would have had a materially lesser impact on female employees, who substantially outnumbered trans employees in the workforce. While the employer had consulted some staff networks, it had not engaged with wider networks, such as those representing women or employees with religious beliefs. 

The tribunal also stated that while the employer contended that it had applied the law as it understood it at the time and had sought guidance from a range of external bodies, reliance on external guidance or prevailing good practice cannot justify a misapplication of the law. Independent legal advice must be sought and applied; responsibility for legal compliance rests with the employer regardless of what external bodies have recommended.

The tribunal concluded that the policy had violated the claimant's dignity and created a hostile, degrading or offensive environment for her, both by reason of her sex and her gender-critical belief (albeit this had not been the purpose of the policy). The claimant's separate claims of indirect religious belief discrimination and indirect disability discrimination were dismissed. 

As a first instance decision, this ruling is not binding on other tribunals and should be read alongside the growing body of developing case law in this area, much of which is currently subject to appeal.

What does this mean for employers?

In a workplace context, employers' obligations regarding single-sex facilities arise primarily under the Workplace (Health, Safety and Welfare) Regulations 1992. An employer must provide suitable and sufficient toilets and, where required, separate changing and washing facilities for men and women, unless the relevant facilities are contained in a separate room that can be locked from the inside, in which case they may be used on a mixed-sex basis. The High Court has confirmed that "men" and "women" in these regulations should be interpreted on the basis of biological sex, even where an employee holds a gender recognition certificate. It is understood that an application for appeal is still live.

Employers must also have regard to the applicable provisions of the Equality Act prohibiting unlawful discrimination and harassment in the workplace. While the Services Code does not apply to workplaces, as referred to above, the Minister for Equalities has indicated that it will be relevant and helpful for employers in considering how best to comply with their obligations under the Equality Act 2010. This gives a strong indication that any Employment Code seems likely to adopt the same principles. 

This is an area which the Equality and Human Rights Commission (EHRC) is actively monitoring and taking appropriate enforcement action. As part of its review of evidence from the government's call for input, the EHRC assessed approximately 404 organisational policies relating to single-sex spaces and services, identifying around 10% as misrepresenting the single-sex provisions of the Equality Act 2010 and requiring these organisations to amend or withdraw their policies. 

It is clear on the current interpretations that where single-sex facilities are provided, this should be on the basis of biological sex but careful consideration must be given to ensuring that all employees are able to access toilet facilities, whether by providing additional facilities alongside single-sex facilities or providing toilets within single standalone lockable rooms. 

Where additional facilities are provided alongside single-sex facilities, it will be important to consider the impact on other users. Accessible toilets are often gender neutral, but requiring trans employees to use these facilities limits their availability to disabled employees as well as leading to consequent issues for trans employees (for example, some may not have disclosed they are trans or will have been previously using the facilities of their chosen gender). Providing only mixed-sex facilities, with no single-sex option, could itself give rise to claims of indirect sex discrimination or harassment in circumstances where a biological women's safety, privacy or dignity would be at risk. 

Supportive and empathetic consultation with those affected by this decision is good practice and the most sensitive way to take account of all those affected. As case law has highlighted, employers should reach out to a wide range of networks representing the different interests of employees and an equality impact assessment should be carried out as part of the process.

Any concerns or complaints raised should be treated sensitively, with compassion and in line with the employer's applicable policies. The expectation is that staff will be trained to handle concerns sensitively and proportionately and individuals should be encouraged to raise any concern with a manager or HR rather than confronting a colleague directly. At all times, care must be taken to ensure compliance with data protection and wider employment law obligations to individuals.

The context of the evolving legal picture will inevitably give rise to concern among those affected and therefore employers should remain vigilant in supporting them. Engaging in open dialogue and consultation with all affected staff can help develop policies that respect legal requirements while upholding the organisation's values of diversity and inclusion. 

We are now expecting the EHRC to update the Employment Code but, given how long it has taken the Services Code to be put before Parliament, this could be some way off. Employers should continue to keep their position under review.