The Equality and Human Rights Commission’s (“EHRC”) updated Code of Practice for Services, Public Functions and Associations came into force on 5 August 2026 (“the Code”), replacing the previous 2011 version. While the Code is not directed at employers and does not alter the law itself, it provides important insight into how the EHRC interprets the Equality Act 2010 following For Women Scotland Ltd v Scottish Ministers in which the Supreme Court held that the terms “sex”, “woman” and “man” in the Equality Act 2010 refer to biological sex.

For many employers, particularly those operating customer-facing businesses, leisure facilities, healthcare services, educational institutions, hospitality venues, or other public services, the Code has significant practical implications. It may also offer an indication of how the EHRC is likely to approach workplace issues pending any future update to the Employment Code of Practice.

What has changed?

The EHRC’s updated guidance states that, for Equality Act 2010 purposes, a person’s sex is determined by biological sex and that obtaining a Gender Recognition Certificate does not change a person’s sex for the purposes of the Act. At the same time, transgender individuals continue to be protected against discrimination because of the protected characteristic of gender reassignment.

The Code explains the circumstances in which organisations may lawfully provide separate-sex or single-sex services and when access may be restricted based on biological sex, provided the arrangement is a proportionate means of achieving a legitimate aim. Legitimate aims may include, but are not limited to, considerations such as privacy, dignity, safety, or the specific needs of service users.

Why does this matter to employers?

Although the Code expressly relates to services, public functions and associations, many employers wear multiple hats. An organisation may simultaneously be:

· An employer (Part 5 of the Equality Act 2010);

· A service provider (Part 3 of the Equality Act 2010); and

· An occupier of premises providing facilities to staff, customers or visitors.

Consequently, organisations need to consider both their employment law obligations and their obligations as service providers.

The challenge for employers is that workplace issues relating to toilets, changing facilities, occupational requirements, diversity initiatives and inclusion policies continue to evolve. While the EHRC has indicated that an updated employment code may be considered in future, no replacement employment guidance has yet been issued.

Single-sex facilities in the workplace

One of the most sensitive and potentially contentious areas for employers concerns workplace facilities.

Whilst the Code is focused on services rather than employment, it reflects EHRC’s broader interpretation of the Equality Act 2010 following the Supreme Court decision. Employers should therefore review existing arrangements for toilets, showers, changing rooms and similar facilities to ensure they remain legally compliant and appropriately balance competing rights.

Employers should remember that they owe duties not only to transgender employees but also to employees who may raise concerns relating to privacy, dignity, religion, belief or sex-based rights. Policies that automatically prioritise one protected characteristic without considering others may expose employers to legal risk.

Avoiding a “one-size-fits-all” approach

A key theme running through the Code is proportionality.

EHRC stresses that decisions regarding separate-sex and single-sex provision require careful assessment of the circumstances and the legitimate aim being pursued. Blanket policies are unlikely to be appropriate in every context. Instead, organisations should consider factors such as:

· The nature of the services or facilities being provided;

· Privacy and dignity considerations;

· Health and safety requirements;

· The needs of all affected groups;

· The availability of alternative arrangements; and

· Whether less restrictive measures could achieve the same objective.

For employers, this highlights the importance of undertaking evidence-based assessments rather than simply reacting to external pressure or adopting policies used by other organisations.

Reviewing policies and training

The introduction of the new Code provides a timely opportunity for employers to review workplace policies.

Particular attention should be given to:

1. Equality, diversity and inclusion policies

Policies should accurately reflect the current law and recognise the protections afforded to all protected characteristics under the Equality Act 2010, whist taking into consideration the Code. Employers should avoid language that suggests one protected group automatically takes precedence over another.

2. Dignity at work and anti-harassment policies

The legal and social debate surrounding sex and gender remains highly polarised. Employers should ensure that managers understand the distinction between lawful expression of beliefs, unlawful discrimination and workplace harassment, and necessary training should be provided to line management and senior leadership members in order to deal with any workplace queries.

3. Grievance procedures

Organisations may expect an increase in grievances relating to facilities, inclusion initiatives and competing protected rights. Management and HR should be trained to investigate such concerns carefully and impartially.

Practical steps for employers

In light of the Code, there are a number of considerations to take into account to ensure compliance and adherence with the Equality Act 200 and update guidance:

· Review policies relating to workplace facilities and inclusion.

· Audit existing toilet, changing and welfare facilities.

· Assess whether additional gender-neutral facilities may be appropriate.

· Train HR teams and managers on developments following the Supreme Court decision and the Code.

· Ensure decisions are supported by documented risk assessments and proportionality analyses.

· Monitor future EHRC guidance, particularly any proposed update to the Employment Code of Practice.

It is important to note that the Code does not create new legal obligations, nor does it directly govern employment relationships. However, it is an important statement of the regulator’s interpretation of the Equality Act 2010 following the Supreme Court’s decision on the meaning of sex. Tribunals may take the Code into account when determining disputes under the Equality Act 2010.

We are happy to work with employers and organisations to understand their duties under the Equality Act 2010 as well as understanding the updated EHRC guidance, and the changes that can be made to workplace policies and strategies to ensure legal compliance. Please feel free to reach out to our expert team at employment@berrysmith.com or on 02920 345 511.

Please note the contents of this article do not constitute legal advice.