Private hospitals and clinics who fall foul of gender rules following the Supreme Court’s clarification of the Equality Act could face pay awards running into the tens of thousands.
This is according to employment lawyers Health & Protection spoke to, who say organisations will need to review policies and could face pay awards of between £12,000 and £30,000 if successful cases are brought against them.
Last week, the UK Supreme Court ruled that the legal definition of a woman is based on biological sex, it also pointed out that transgender people still have legal protection from discrimination.
New guidance
In the wake of the ruling, the chairwoman of the Equality and Human Rights Commission (EHRC) Baroness Falkner told the BBC that the NHS, who along will other public bodies will be receiving new guidance following the ruling, will be pursued if it does not follow new guidance on single-sex spaces.
This is because the ruling could have implications for spaces such as hospital wards, changing rooms and domestic refuges.
The EHRC said it was “working at pace” to provide an updated code of conduct for services, including the NHS and prisons, and it expected its updated guidance to be in place by the summer.
Asked whether the EHRC would pursue the NHS if it does not change in light of the Supreme Court’s clarification, Baroness Falkner replied “yes we will”.
But Melanie Stancliffe, employment partner at Cripps, told Health & Protection the ruling applies equally to private sector hospitals and clinics.
Pay awards running into tens of thousands
Providing further detail on the penalties these organisations could face, Jonathan Mansfield, partner at Spencer West, said they are likely to be brought for injury to feeling.
“There is a risk of some organisations in the private sector being sued by a biological woman who had to share a ward or spaces with a biological man, albeit someone who has transitioned,” Mansfield explained.
“So it is an issue also in the private sector in my view.
“Potentially, some sort of award for injury to feelings would be a possibility.
“That would probably be the main remedy.”
While there is no limit to pay awards for cases brought under the Equality Act, Mansfield explained they would likely run into the tens of thousands.
“Injury to feelings is a specific type of award for discrimination which is not the same as a personal injury award,” Mansfield continued.
“There’s a range of bands depending on the seriousness of it.
“So it might be that if it’s a lower band case, the middle band is £12,000 to £30,000.
“Tens of thousands – that’s the sort of thing you could potentially see.”
