Updates To Guidance On Pay Gap Reporting And Code Of Practice On Services To Reflect For Women Scotland Judgment

The Government Equalities Office has updated its statutory guidance for employers on gender pay gap reporting to reflect the Supreme Court judgment in For Woman Scotland (that, for the purposes of the Equality Act 2010, 'sex' means biological sex). The guidance clarifies that gender pay gap reporting must be based on employee's biological sex and discusses how data can be collected sensitively and confidentially.  Some employers may also be relieved to note that the extension of pay gap reporting to ethnicity and disability (see here) is not as imminent as initially expected, given legislation was not included in the King's Speech on 13 May 2026 and a final impact assessment for the government's proposals suggests it will only become operational in 2029.

On 21 May 2026 the EHRC's revised Code of Practice on Services, Public Functions and Associations, updated to reflect changes in the law including For Women Scotland, was laid before Parliament for approval.  It will come into force after 40 days unless disapproved. The Code contains updated guidance for service providers on the provision of single sex facilities, suggesting that in many cases it will be proportionate to provide a mix of services, some single-sex (ie, single biological sex) and some mixed.  It also makes the (perhaps obvious) point that, in relation to services which are necessary for everybody such as toilets, it is very unlikely to be proportionate not to have a facility which trans persons are able to use.  Although the Code does not apply in the employment context, it does indicate the approach the EHRC is likely to take when updating its guidance for employers.  Employers should also watch out for forthcoming Employment Appeal Tribunal guidance on how the rights of different protected groups should be balanced in relation to workplace toilets and changing rooms; this continues to feature in employment tribunal cases and at least two decisions have been appealed.