A council discriminated against women by providing ‘inadequate’ toilet facilities – namely a cubicle within the men’s toilets, the Employment Appeal Tribunal (EAT) has found.
Judge James Taylor dismissed an appeal from Earl Shilton Town Council, finding that providing toilet facilities that lacked sanitary bins and required women to walk past men using the urinals had been discriminatory on the grounds of sex.
In 2019, an employment tribunal heard that Ms Miller, an office clerk at the Leicestershire town council, worked in a building that did not have female toilet facilities she could access when needed.
The council operates from a building owned by a church and shares this building with a playgroup. The women’s toilets were in the part of the building used by the playgroup, so if Ms Miller and other female council employees needed to use them, they had to ask playgroup staff to check that no children were using them. It was not always easy to attract the playgroup workers’ attention, which made this arrangement unsuitable if she needed to use the toilet urgently.
Toilet access and sex discrimination
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From May 2017, the council offered female staff the use of the men’s toilets, which were in the part of the building it used. There was a sign that could be put on the door when the toilet was being used by a woman, but it did not always stay in place. The only facility for women was a single cubicle and could only be accessed by passing a urinal. Women would not always know if a man was using the urinal before entering the room.
It was not until June 2018 that the church arranged for a lock to be fitted to the external door of the men’s toilets for a woman to use if she was using the cubicle, as well as a sanitary bin. The bin was only emptied if the claimant requested it.
Miller claimed this arrangement resulted in direct sex discrimination against women. She argued that men and women were treated differently because the toilet provision was not adequate for women’s needs.
The employment tribunal found that “any reasonable person could reasonably consider not having immediate direct access to toilet facilities, the risk of seeing a person of the opposite sex using toilet facilities… and not having a bin in which to dispose of sanitary products as a series of detriments”.
The tribunal agreed she had been treated less favourably to a comparable man, describing the case as “inherent discrimination”.
Earl Shilton Town Council appealed against the decision, arguing that the safeguarding requirements, in respect of the playgroup, meant that the toilet access for women was as such.
It also said the tribunal should have considered whether the risk a man faced of being observed using the urinal by a woman was equivalent to that of a woman seeing the man using the urinal.
The EAT dismissed both arguments. Its judgment in Earl Shilton Town Council v Ms K Miller says the tribunal applied robust common sense to determine that this type of treatment constitutes direct sex discrimination.
“A woman being at risk of seeing a man using the urinals is obviously not the same as the risk of a man seeing another
man using the urinals,” the judge said.
“The claimant was not provided with toilet facilities that were adequate to her needs, because of the risk of coming across a man using the urinal and the lack of a sanitary bin. That treatment was less favourable than that accorded to men.
“The fact that a man might also be able to assert direct sex discrimination would not be fatal to the claimant’s claim, just as it was not fatal to the claim of a girl asserting less favourable treatment through segregation in education that a boy might be able to bring a similar claim. Nor did it matter that another woman had not objected to the arrangements because
the discriminatory impact was to be assessed from the perspective of the claimant.”
It added that the safeguarding issue did not prevent women from being directly discriminated against.
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