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Is the provision of inadequate toilet facilities direct sex discrimination?

In Earl Shilton Town Council v Miller, the Employment Appeals Tribunal (EAT) found that the Council was discriminating against women, by not providing adequate toilet facilities. The EAT held that a cubicle within the men’s toilets but with access required passing the urinals is inadequate.

So, what happened?

The Council operated from a church building that also hosted a play group. The women’s toilets were in part of the building used by the playgroup and used by those attending the group.

The toilets were not suitable for urgent use because female employees had to ask playgroup staff prior to using the toilets, in order to make sure that the toilets were not occupied by children. They were offered the use of a toilet cubicle, in the male toilets, but access to that cubicle meant that they had to pass the urinals. There was also a risk of men entering the toilet, and, initially, there were no sanitary bins. One sanitary bins were provided, they were only emptied if the claimant requested them to be.

The Council stated that:

  1. the less favourable treatment could not be because of sex where the toilet arrangements resulted from safeguarding requirements; and
  2. there was no less favourable treatment given the risk a man faced of being observed when using the urinal was equivalent to that of a woman seeing the man use the urinal.

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” and agreed that Ms Miller 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 the appeal, stating that “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 EAT also said that the application of ‘robust common sense’ was required; if one starts by considering the nature of Ms Miller’s treatment, toilet facilities that were adequate to her needs were not available, because of the risk of her seeing a man using the urinal coupled with the lack of sanitary provisions. That treatment was therefore less favourable than that given to men.

It was noted that “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”. The EAT added that the safeguarding issue did not prevent women from being directly discriminated against.

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Is the provision of inadequate toilet facilities direct sex discrimination?

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