In Earl Shilton Town Council v Ms K Miller [2023] EAT 5, the Employment Appeal Tribunal (EAT) upheld a decision that an employer discriminated against an employee because of her sex due to an inadequate provision of toilet facilities.
Background
The Equality Act 2010 (the EA 2010) provides that direct discrimination occurs where “a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.
Facts of the case
Ms Miller (M) raised a claim of sex discrimination (along with some other claims) against her employer (the Council) due to their failure to provide her with access to a female only toilet.
M worked as an office clerk for the town council. The building was shared with a playgroup and the female toilets were in located in the part of the building used by the playgroup. Due to safeguarding issues, M was required to ask the playgroup staff before using the toilets; and this arrangement was unsuitable in case of urgent use. Female employees were instead offered the joint use of the men’s toilets, which consisted of a single cubicle and such access required passing a urinal.
Initially, there was no lock on the external door but an internal lock to the external door was eventually put in place. Female employees were expected to place a sign on the external door when the toilet was “in use by a female”, but the sign did not always stay in place. Consequently, there was a risk of men entering the toilet when a woman was using the toilet cubicle, or a woman entering the toilet while a man was using the urinal. No sanitary bins were provided in this toilet initially and, when one was provided, it was only emptied when M requested it.
M contended that the shared toilet arrangement constituted direct sex discrimination due to the difference of treatment between women and men in the provision of toilet facilities suitable for their needs. M’s claim was upheld by the Employment Tribunal (ET), but the Council appealed against this decision.
The Council argued that:
- as the ET had found the reason for the toilet arrangement came from the safeguarding requirements for the playgroup, the unfavourable treatment could not be on the basis of sex; and
- the risk of a man being observed using a urinal by a woman was equivalent to that of a woman seeing the man using the urinal, which meant there was no less favourable treatment.
EAT decision
On appeal, the EAT considered that the ET had applied “robust common sense” in determining that the treatment of M because of her sex in the provision of adequate toilet facilities constituted direct sex discrimination. M was treated less favourably than men because 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 treatment of M was discriminatory because of her sex – it was because she was a woman that the facilities were inadequate and she was not provided with toilet facilities adequate to her needs. It was therefore correct for the ET to conclude that M’s treatment (as a woman) was less favourable than that accorded to a man. The EAT commented that it might be a man could also claim direct sex discrimination due to the risk of being walked in on by a female employee whilst using the urinal; however, that position was not advanced by the Council at the ET and did not detract from the Claimant’s claim.
What does this mean for employers?
This decision is a reminder for employers to ensure that there are suitable facilities available for their employees. When making or assessing suitable provision for toilet facilities, employers should consult with and consider the needs of all its staff.
How can we help?
If you have any queries about what this decision means for you or your business, please get in touch with a member of our Employment Law team or contact us here.
This article is not and should not be taken as legal advice; it is for general information only.
This article was co-written by Daniel Cormack, Trainee Solicitor.
