Phillipson: Updated EHRC Code ‘Does Not Apply to Workplaces’

Why It Matters

The clarification leaves NHS trusts and other employers without definitive guidance, heightening legal uncertainty for staff handling gender‑identity issues. It underscores the urgency for employers to adapt policies now to avoid compliance risks.

Key Takeaways

• EHRC code excludes workplace regulations
• Supreme Court defined sex as biological
• NHS urged to act without code
• Employers must already comply with law
• Guidance delay fuels sector uncertainty

Pulse Analysis

The Equality and Human Rights Commission (EHRC) has been overhauling its statutory code of practice, the first major update since 2011. The revision was accelerated after the Supreme Court’s landmark April 2025 decision that the Equality Act’s definition of sex aligns with biological sex, a ruling that reshapes how single‑sex spaces are regulated. While the EHRC submitted a draft covering service providers, public functions and associations, it explicitly excluded employment matters, leaving a regulatory gap for workplaces that must now interpret the court’s judgment without formal guidance.

For the National Health Service, the gap is especially acute. Front‑line nurses like Jennifer Melle, who faced suspension after mis‑gendering a trans patient, are caught in a policy limbo where the employer’s duty‑bearer responsibilities are unclear. The women and equalities minister’s statement that the code does not apply to workplace regulations shifts the onus onto NHS trusts to develop their own compliant policies. This creates immediate pressure on HR departments to reconcile legal obligations with operational realities, risking inconsistent practices across trusts and potential litigation.

The broader market impact extends beyond health care. Employers across sectors are watching the EHRC’s approach, as the lack of an employment‑focused code may set a precedent for self‑regulation. Companies must proactively review contracts, training, and grievance procedures to align with the Supreme Court’s interpretation, consulting legal counsel where necessary. The situation highlights a tension between legislative intent and administrative execution, prompting businesses to prioritize internal compliance frameworks while awaiting formal guidance from the EHRC.