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May 16, 2025
•May 16, 2025•

Q&A: For Women Scotland Ltd v The Scottish Ministers

Unpacking the Implications of the Landmark Supreme Court Judgment in For Women Scotland Ltd v The Scottish Ministers

Author: Swyn Llyr

Key contact: Chris Aldridge

What do employers need to take away from the Supreme Court’s landmark judgment in the case of For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16? We’ve put together this handy Q&A to simplify the implications and help you stay compliant.

In a nutshell, this judgment provides clarity on the interpretation of “sex” under the Equality Act 2010 (“the EqA 2010”) and offers guidance on how to protect trans employees while ensuring compliance with the law. For a detailed case summary, click here.

How does the Supreme Court’s judgment define “sex” under the EqA 2010?

The Supreme Court concluded that the terms “sex”, “man”, and “woman” in the EqA 2010 refer to biological sex, not certificated sex. This means that a person with a Gender Recognition Certificate does not change their sex for the purposes of the EqA 2010.

What is a Gender Recognition Certificate (GRC)?

A GRC is a legal document which allows an individual to have their affirmed gender legally recognised. This recognition is in line with the individual’s gender identity and expression rather than their sex assigned at birth.

What are the implications of the Supreme Court’s definition of “sex” for your workplace policies?

As a result of the Supreme Court’s clarification, employers must interpret and apply sex-based rights and protections in line with this definition. To remain compliant and ensure fair treatment in the workplace, it is best practice for employers to review and update relevant policies, such as those on discrimination, harassment, and equal opportunities, to reflect the biological definition of sex as outlined in the judgment.

How can you protect trans individuals under the EqA 2010?

The Supreme Court’s ruling does not remove or diminish the protections afforded to trans individuals. Trans people continue to be protected under the EqA 2010 through the provisions related to gender reassignment discrimination.

Employers should therefore ensure that their workplace policies explicitly prohibit discrimination based on gender reassignment, irrespective of an individual’s gender identity. This supports an inclusive workplace while remaining aligned with the legal framework.

Can you investigate or request proof if you are unsure of an employee’s biological gender?

No. Employers should not investigate or request proof of an employee’s gender. Doing so can violate privacy rights and potentially lead to discrimination claims under the EqA 2010. Instead, employers should focus on fostering an inclusive and respectful workplace by accepting employees’ self-identification and privacy.

Importantly, an individual does not need a GRC to be protected under the protected characteristic of gender reassignment. Asking for a GRC when deciding how to treat someone, or whether to exclude them from a service or policy, can itself be unlawful and a breach of privacy. It is also essential not to make assumptions about whether someone is trans based on gender stereotypes, such as clothing or appearance.

What strategies can your business adopt to ensure compliance with the law while treating all employees fairly:

To ensure compliance and uphold fair treatment, employers should adopt the following strategies:

  • Familiarise themselves with the judgment’s interpretation that “sex” in the EqA 2010 refers to biological sex, not certificated sex.
  • Review and update policies, handbooks, and training materials to reflect the judgment’s interpretation.
  • Provide targeted training to HR teams and line managers on the practical application of this definition and the implications for decision-making.
  • Respect the privacy of employees, especially in relation to GRCs, and ensure all individuals are treated with dignity and respect.
How should you update your policies to ensure compliance with the clarified definition of “sex”?

Your policies should be updated to reflect that sex-based protections under the EqA 2010 apply to biological sex. Key areas for review include:

  • Anti-discrimination policies: clarify that protections on the grounds of sex relate to biological sex and avoid language that inadvertently extends these rights based on acquired gender through a GRC.
  • Maternity and pregnancy-related policies: ensure these apply specifically to biological women, covering areas such as pregnancy-related health and safety and breastfeeding accommodations.
How should you handle situations involving single-sex services or facilities?

Single-sex services or facilities should be designated based on biological sex, in line with the Supreme Court’s judgment. While the law permits restricting access based on biological sex, this can be complex in practice:

  • A trans individual may present according to their gender identity, which can cause practical and emotional challenges.
  • Access to a single-sex space does not automatically extend to trans individuals with a GRC unless there is a justified and proportionate reason. This means that a person who was born male but identifies as a woman does not have a right to use that space or service.

Employers are encouraged to conduct a careful assessment to ensure compliance with the law.

Under what circumstances can we offer a separate-sex service?

A separate-sex service may be provided only where a combined service would be less effective, and offering a separate service is a proportionate way to achieve a legitimate aim – such as protecting the health, safety, or dignity of service users.

The Equality and Human Rights Commission cites the example of a charity offering single-sex homeless hostels for men and women, where mixed accommodation would not meet service users’ needs effectively.

What are the implications of the judgment for your data collection and reporting practices?

In light of the ruling, employers should ensure that data collection and reporting align with biological sex, particularly for areas such as gender pay gap reporting and other equality monitoring activities. Ensuring compliance with the law while respecting employees’ privacy and upholding protections for trans individuals under the characteristic of gender reassignment is of utmost priority.

Whilst For Women Scotland Ltd v The Scottish Ministers has attracted much public attention, the Supreme Court has made clear that the trans community is still protected in law. The implications affect both trans women’s access to single-sex spaces and biological women’s rights to maintain such spaces for safety and dignity. This judgment has generated growing public interest and debate, particularly as its implications become more visible in complex areas, such as sport participation.

For support in drafting, updating, or reviewing your internal policies, please do not hesitate to contact our Employment team.

•May 16, 2025•

AI in the Workplace – Opportunities and Legal Risks

Avoiding AI risks and Reaping the Benefits Through Compliant HR teams

Author: Sophie George

Key contact: Chris Aldridge

Artificial intelligence (“AI”) is transforming how employers recruit, manage, and monitor their people. But its use comes with legal and ethical challenges – particularly around discrimination, privacy, and decision-making. We take a look at AI in the Workplace and unpack the legal risks and opportunities.

Why AI matters for employers

From AI-powered recruitment tools to productivity-tracking software, artificial intelligence is now embedded in many workplace systems. Used responsibly, AI can drive efficiency, reduce bias, and unlock insights. Used carelessly, it can expose employers to significant legal, reputational, and regulatory risks.

Consequently, employers must assess the legal implications of using AI across the employment lifecycle.

Discrimination risks in recruitment and decision-making

AI tools used to shortlist CVs, score interviews, or predict performance are often trained on historical data – data that may reflect existing workplace biases.

Under the Equality Act 2010, if an AI tool disadvantages candidates with a protected characteristic (e.g., age, gender, race, disability), the employer may be liable – even if a third party supplies the tool.

Examples of legal risks and issues:

  • An algorithm that learns to favour candidates who resemble past successful (often male or white) hires.
  • Software that misinterprets neurodivergent behaviours in video interviews.
  • An increased dependence on AI can undermine the personal dynamics of the employment relationship. Unlike human managers, AI tools lack the intuition and judgment needed to make nuanced decisions, potentially resulting in less empathetic and context-aware outcomes.
  • The shift away from human interaction may weaken the bond between line managers and their direct reports, leading to potential challenges in communication, motivation, and overall employee engagement.

Best practice:

  • Conduct equality impact assessments for AI tools.
  • Avoid fully automated decision-making without human oversight.
  • Regularly audit tools for biased outcomes and retain accountability.
AI and productivity monitoring

AI is increasingly used to track employee performance and to manage the employment relationship – for example, by analysing emails, keyboard activity, or time spent on tasks. In managing the employment relationship, employers may use AI-driven tools to decide which employees should undergo performance management or disciplinary/capability procedures.

However, these tools rely on data, and so their effectiveness and impartiality will vary according to the data they are trained on. Employers should therefore remember that human oversight will continue to play a crucial role.

Legal risks involved with relying on AI as a productivity monitoring tool:

  • Infringement of privacy and autonomy rights.
  • The inability to know exactly which factors have been considered, with what weight. Delegating the decision-making process to an AI tool can create a lack of clarity and transparency.

What employers should do:

  • Be transparent about monitoring purposes and methods.
  • Engage with staff and consult representatives where required.
  • Avoid relying exclusively on AI to assess performance or trigger disciplinary/capability proceedings.
Opportunities: efficiency, fairness, and compliance

While risks are real, so are the benefits when AI is applied thoughtfully. Among the many opportunities brought by AI include, teams may benefit from:

  • Standardising recruitment: structured, criteria-led shortlisting can reduce unconscious bias if appropriately trained.
  • Flagging legal risks: AI tools can monitor employment contracts or policies for compliance issues.
  • Identifying wellbeing concerns: sentiment analysis tools may help detect patterns of burnout or disengagement.

The tools currently available mark just the beginning of AI’s potential in the workplace.

But employers must retain oversight. Delegating HR decisions entirely to machines is not just risky – it may soon be unlawful under upcoming UK and EU AI regulation.

Next steps for employers

To balance innovation with compliance, employers need to:

  1. Audit current AI tools: what data is being used, and for what purpose?
  2. Train HR and managers: help them understand the limits and responsibilities around AI use.
  3. Update policies: reflect AI use in data protection, recruitment, and disciplinary policies.
How can Acuity help?

At Acuity Law, we advise employers on the responsible use of AI – from risk assessments to policy drafting and data compliance. Whether you are implementing modern technology, reviewing existing practices or looking to implement a new AI in the workplace policy, we can help you stay compliant and ahead of regulatory change.

Contact our Employment and Commercial & Technology teams to ensure your AI tools are working for – not against – your business. And check out our upcoming seminar in June: AI Uncovered: A Playbook for Legal Success for hints and tips when implementing AI solutions.

•May 16, 2025•

Employment Law Update: Victimisation and “Protected Acts”

Kokomane v Boots Management Services Ltd: Actions an Employee Can Take Without Fear of Retaliation or Victimisation

In Kokomane v Boots Management Services Ltd, the Employment Appeal Tribunal (EAT) has emphasised the need for a contextual approach when assessing whether an employee has executed a “protected act” for the purposes of a victimisation claim under the Equality Act 2010. We examine victimisation and “protected acts”, and how to avoid accusations of discrimination when dealing with grievances.

The case

Ms Kokomane raised an initial grievance after being accused of shouting in the workplace, alleging she was being treated differently to colleagues. She later raised a second grievance, complaining that her first grievance had not been acted on and alleging she had been bullied. Neither grievance explicitly alleged race discrimination. However, during the grievance process, the Claimant mentioned that negative stereotypes about black women and shouting may have influenced how she was treated. Ms Kokomane brought a claim of victimisation against Boots Management Services, alleging her grievances were “protected acts” under the Equality Act 2010.

The Employment Tribunal initially rejected the claim, concluding that her grievances did not amount to “protected acts” because they lacked a direct reference to race discrimination.

On appeal, the EAT disagreed and ruled that:

  • A complaint need not explicitly reference discrimination to qualify as a “protected act”.
  • Tribunals must consider the full context – including what the employer knew at the time.
  • The test is: what would the employer reasonably have understood the complaint to mean, in light of the circumstances?

In this particular case, Boots Management Services knew Ms Kokomane was the only black employee and had raised concerns about racialised perceptions during the grievance process.

Practical tips for employers

This decision is a reminder to employers of the importance of recognising and responding appropriately to potential discrimination complaints – even if they are not framed in legal language.

Here’s how employers can reduce the risk of victimisation claims:

  • Train managers and HR to spot potential “protected acts” : a grievance or complaint doesn’t need to use the word “discrimination” to trigger legal protection. Staff should be alert to concerns that could relate to protected characteristics.
  • Take all grievances seriously and act promptly: failing to act on a grievance – even if it seems vague – can form the basis of a victimisation claim. Ensure there is a consistent, documented process for handling all complaints.
  • Avoid treating complainants unfavourably: decisions taken shortly after a grievance – such as disciplinary action or exclusion from opportunities – will be closely scrutinised.
  • Keep context in mind: consider what a complaint might reasonably mean, not just what is written. This includes understanding the workplace dynamics and employee relationships.
  • Review grievance outcomes and communications carefully: language matters. Be sensitive in how findings are communicated and avoid dismissive or minimising language that might deter future disclosures.
Final thoughts

The Kokomane v Boots Management Services underlines that the threshold for what qualifies as a “protected act” is not as high as some employers might assume. A failure to recognise this can expose businesses to costly and reputationally damaging claims.

If you are unsure whether a complaint might engage legal obligations under the Equality Act 2010, contact our Employment team.