Earl Shilton Town Council v Miller
Hello Jaquiline and welcome back to our case law update. Our last case law update covered disability discrimination and redundancy. This week we are looking at sex discrimination and adequate toilet facilities. Before going down the rabbit (plug) hole of this topic a brief housekeeping point to mention of our upcoming seminar.
A huge thank you to those of you who have already booked on. For those of you who haven’t we now have a booking page. The seminar will be on 23 March at Alltech House, Stamford. In addition to sessions on the April Employment Law Update, holiday pay post Brazel v Harpur Trust, Neurodiversity and HR and Home Working and Collective Redundancy, there will also be a prize draw for a free HR Audit. Please feel free to invite members of your HR network, as there will be a gift hamper for the person who refers the most other attendees. Unlike today’s case there will also be toilet facilities!
This Week’s Question
Can less favourable toilet facilities amount to sex discrimination?
The Claimant, Ms Miller, was employed as a clerk for Earl Shildon Town Council, the Respondent. The Respondent’s premises hosted a local playgroup. The men’s toilets were situated in a different part of the building to the playgroup and accessible all day. The women’s toilets were situated in the same part of the building as the playgroup. This meant female staff could not easily access the toilet as they had to notify the playgroup staff, who needed to ensure no children were using it.
The Respondent offered the Claimant and other female staff use of the male toilets whilst the playgroup was in session. The male toilet consisted of one cubicle and a trough urinal. This meant the Claimant was likely to share the toilet with a male colleague if they used the urinal whilst the cubicle was engaged. The Claimant would also likely see male colleagues using the urinal as it was a trough with no dividers. The men’s toilet also had no sanitary bin or exterior lock.
The Claimant issued claims for direct sex discrimination. The claim in essence was that female colleagues had less favourable toilet facilities than male comparators. The Employment Tribunal allowed the claim as the Claimant was at a disadvantage to male comparators due to the lack of sanitary bins and risk of seeing/being seen by males using the toilet.
The Respondent appealed and argued that as the treatment related to child safeguarding it was not discriminatory and also that a male colleague was just as disadvantaged as a women as anyone using the toilet could observe them at the urinal trough, including another man. The Employment Appeal Tribunal dismissed the appeal. The EAT held that men were not at the same disadvantage as women because men faced the chance of being seen using a urinal by another man in any public toilet. The Claimant was therefore at a disadvantage due to her sex.
The Takeaway Point
Yes, a women not having access to sufficient toilet facilities is less favourable treatment. The Tribunal also went at pains to point out that a man seeing another man in the toilet is not comparable to a woman being seen by a man. In this case it would probably have been easier for the Respondent to put a lock device on the toilet which meant neither gender could be disturbed when the toilet was engaged!
