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Toilets and Sex Discrimination

06/02/2023

TOILETS & DIRECT SEX DISCRIMINATION (3 February 2023)

The GB Employment Appeal Tribunal (EAT) has held that a Respondent’s provision of inadequate toilet facilities for women subjected the claimant to direct sex discrimination.

FACTS

Ms Miller was an Office Clerk for Town Council based in a Church owned building that also hosted a playgroup.

Male toilets were in the Council’s part of the building; female toilets were in part occupied by playgroup and also used by the children.

To use the playgroup toilets females had to:

  • attract the attention of playground staff (not always easy to do);
  • wait until toilets were checked to see if child was present.

[This arrangement was not suitable if females needed to use toilet urgently.]

Council then allowed females to use male toilets. These consisted of single cubicle & trough urinal. To use them:

  • Sign was placed on door when being used by females;
  • Sign did not always stay in place;
  • Females could only use the cubicle;
  • Cubicle was only accessed by passing urinal;
  • Risk of males entering despite any sign (lock ONLY installed on internal toilet main door 13 months later);
  • Females might see male using the urinal;
  • Male toilets had no sanitary bin (only installed 6 months after complaint) and then only emptied on request.

EAT JUDGMENT:
EAT identified 3 principles issues:

  • What was the treatment
  • Was it less favourable than that of actual or hypothetical comparator
  • Was there detriment.

EAT was keen to emphasise that ‘different‘ treatment is not always less favourable and; the same treatment can be less favourable.

Here, despite the provision of the same toilet it was less favourable as she was not provided with toilet facilities that were adequate to her needs because there was:

  • risk of coming across males using the urinal and;
  • a lack of sanitary bin which was regularly emptied.

EAT found it did not have to consider the mental process of discriminator because the treatment was inherently because of sex.

COMMENT

Unlike indirect discrimination, direct discrimination (with the exception of age) cannot be justified.

So when she succeeded in establishing direct discrimination she won her case.

This is a salutary warning to business  to ensure that facilities provided to females are no less favourable to one sex when compared to the males, or vice versa.

See Earl Shilton Town Council v Miller