The Employment Appeal Tribunal (EAT) has considered whether an employer's requirement for female employees to use the men's toilet facilities amounted to sex discrimination.
Earl Shilton Town Council v Miller [2023] EAT 5
Facts of the case
The claimant, M, worked as an office clerk for the town council. The building was shared with a playgroup, and the female toilets were located in the part of the building used by the playgroup. For safeguarding reasons, M had to ask the playgroup staff before using the toilets; therefore, the arrangement was not suitable if she needed to use the toilet urgently.
Female employees were instead offered the joint use of the men's toilets, which consisted of a single cubicle and a urinal. A sign was put on the external door to indicate when a woman was using the toilet, but there was no lock and the sign did not always stay in place. Consequently, there was a risk of men entering the room when a woman was using the toilet cubicle, or a woman walking in while a man was using the urinal. Initially there was no sanitary bin available, and when it was later provided, it was only emptied on request. A lock was later added to the external door.
M complained that the shared toilet arrangement amounted to direct sex discrimination. Her claim was upheld by the employment tribunal. The Council appealed to the EAT.
EAT decision
The EAT dismissed the appeal, upholding the tribunal's finding that the toilet arrangement was direct sex discrimination. M was treated less favourably than men, as she was at risk of seeing a man using the urinal when she went to the toilet and because her requirement for a sanitary bin to be provided (and emptied) was not met.
The EAT accepted that a man might also claim direct sex discrimination, due to the risk of a woman walking in while he was using the urinal, but this was not fatal to M's own claim. The tribunal was correct in concluding that it did not have to consider the appropriate comparator. The discriminatory treatment in question was inherently because of the claimant's sex; it was because she was a woman that the facilities were inadequate.
It did not matter that another female employee had not objected to the arrangement, as the discriminatory impact had to be assessed from the perspective of the claimant. In addition, the fact that the arrangement had been put in place due to safeguarding concerns relating to the women's toilets was not relevant to the unsatisfactory situation relating to the men's toilet.
The Birketts view
The requirement to provide suitable toilet facilities can present a headache for employers, particularly those with old or small workplaces, and it is often a controversial topic with employees.
It is clear from this decision that the safeguarding issue relating to the nursery was not relevant to the question of whether the claimant had been subjected to sex discrimination. Similarly, the fact that a male employee may have also had a sex discrimination claim was not regarded by the tribunal as material to the claimant's case. In cases where the treatment is inherently related to the claimant's sex, the tribunal is not required to consider the treatment of any comparator.
In making suitable provision for toilet and washing facilities, employers should consult with, and consider the needs of, all its employees. Guidance on toilet provision is also available from the Health and Safety Executive, which still recommends separate facilities for men and women (rather than unisex facilities) where possible, or otherwise rooms with lockable doors.
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