Provision of Inadequate Toilet Facilities was Direct Sex Discrimination
An employer has been found to have directly discriminated against an employee by providing inadequate toilet facilities in comparison to those provided to male staff.
Inherent Direct Sex Discrimination Argument
In the case of Earl Shilton Town Council v Miller, the Respondent council operated from a church building, where a local playgroup was also hosted. The women's toilets were in a part of the building that was in use by the playgroup. This meant female staff had to attract the attention of playgroup staff in order to be given access to the facilities, which were also shared with children. As an alternative, the Respondent offered access to the men's toilets, but staff would need to walk past the urinals in order to enter a cubicle. Male colleagues could also access the male toilets at any time, and no sanitary bins were provided.
The Claimant complained about the arrangement and argued it constituted inherent direct sex discrimination, because of the different way men and women were treated in respect of the provision of toilet facilities sufficient for their needs.
Tribunal Dismissed Respondent's Appeal
The Tribunal upheld the Claimant's claim. The Respondent appealed to the Employment Appeal Tribunal (EAT), arguing that:
- there were safeguarding reasons for the arrangements that were made for the Claimant to access the female toilets. The reason for the treatment therefore could not be the Claimant's sex
- in respect of women using the men's toilets, there was no less favourable treatment, as men and women were at equal risk of seeing each other in the toilets
The Tribunal dismissed the appeal. The basic position was that the Respondent did not provide the Claimant with toilet facilities that met her needs. This was less favourable treatment compared to the treatment of her male colleagues. As a result of the treatment the Claimant suffered detriment. As this was a claim for direct sex discrimination, the Respondent was not able to argue that the discrimination could be justified.
What Can Employers Learn From This Decision?
Sometimes due to factors beyond an employer's control, it may not be possible to offer exactly the same facilities to both women and men. As a result, cases like this tend to turn on their own facts.
In this case the Tribunal emphasised the unsatisfactory arrangements put in place by the Respondent when the men's toilets had to be shared, and the relatively easy steps which could have been taken to mitigate the situation. Had a lock been fitted to the main toilet door, the risk of men and women seeing each other in the toilets could have been mitigated. Likewise, acting promptly to instal sanitary facilities could have mitigated some of the practical difficulty encountered by the Claimant in using the men's toilets. Had the Respondent taken such proactive action, this could have been enough to defeat the claim.
