Unequal access to toilet facilities amounts to sex discrimination

In the case of Earl Shilton Town Council v Miller, the claimant worked as an office clerk for the Town Council, which was operated from the same building that a children’s playgroup was also ran in. Access to the male toilets were in the same part of the building as the office, but the female toilets were in the children’s playgroup area and shared with the children.

For safeguarding reasons, female employees had to get a playgroup staff member’s attention and wait for them to check there were no children in the toilets before they were able to use them. Due to the nature of the playgroup worker’s role, it wasn’t always easy to get their attention, which often led to issues if toilet access was needed urgently.

As an alternative, female employees were given the option of using the male toilets instead, which were made up of a trough style urinal and a single cubical (accessed by walking past the urinal). There was no lock on the main door, so employees were provided with a sign to say there was a female using it, but this didn’t always stay in place. As a result, female staff were worried that, at any point, a man could come into, and use, the bathroom whilst they were there. There was also the concern that there was no means of disposing sanitary products. This led to claims for direct sex discrimination being raised.

The employment tribunal (ET) concluded the respondents’ action were inherently discriminatory. In making its decision, the judge highlighted that not having immediate direct access to toilet facilities, the risk of seeing a person of the opposite sex when using facilities and not having a bin to dispose of sanitary products were a series of detriments. The ET further stated that sex was the nature for these arrangements, so had to amount to sex discrimination.
However, the respondent appealed the decision, arguing that the reason for having such different toilet arrangements was due to the safeguarding concerns in the playgroup, and nothing to do with sex. They also argued that the risk of a man being observed using the urinal was as much of a concern as it was for women seeing them, so the treatment was not less favourable.

The Employment Appeal Tribunal (EAT) rejected this argument and upheld the original decision, confirming no error was found in the ET’s determination of the case. It stated that, as the toilet facilities for women were inadequate compared to the male equivalent, they put women at a detriment, and this less favourable treatment was inherently because of sex. As such, it was found to be a clear act of direct discrimination.

This case is a reminder of the need to ensure that all employees need equal access to equal facilities, with full consideration as to whether one sex (or age, race etc) is treated less favourably than another. If they are, it will likely amount to discrimination, as seen here.

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