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Inadequate shared toilet facilities gave rise to sex discrimination
The Employment Appeal Tribunal (EAT) has recently considered the question of whether provision of inadequate toilet facilities in the workplace could give rise to direct sex discrimination.
The Respondent was a town council operating from a building, owned by the Methodist church, part of which hosts a playgroup. The men’s toilets were in the part of the building used by the employer and its staff whereas female toilets were in the part of the building used for the playgroup. Women’s toilets were used by both female employees and children attending the playgroup. Before using the toilet, female employees had to speak with one of the playgroup’s staff and wait until the toilets were checked to see if a child was present. From May 2017, the Respondent offered female employees the option of using the men’s toilets. The measure in place was a sign that should be placed on the door when the men’s toilets were being used by a woman which did not always stay in place. There was no lock on the entrance door to the men’s toilets and the only facility suitable for women was the single cubicle which could only be accessed by passing the urinal and no sanitary bin was available/provided.
Consequently, there was a risk of a man entering the toilets regardless of the sign on the door or because the sign had not stayed on, which meant that a woman might see a man using the urinal on entering/leaving the men’s toilet. When a sanitary bin was eventually installed in June 2018, a request had to be made for it to be emptied each time. The Claimant, a female employee of the Respondent, claimed sex discrimination in respect of toilet facilities for the duration of her employment.
The Employment Tribunal (ET) held that the employee had been subjected to a detriment and treated less favourably than that accorded to men. The Respondent appealed arguing that the ET erred in law.
Section 13 of the Equality Act 2010 (EqA) provides that:
‘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.’
Section 23 EqA provides for a comparator in direct discrimination cases and states that: ‘On a comparison of cases for the purposes of section 13 (…) there must be no material difference between the circumstances relating to each case.’
The EAT held that the ET did not err in law in holding that the Respondent’s provision of toilet facilities for female employees was inadequate and subjected the Claimant to direct sex discrimination. The EAT particularly highlighted that,
“(..) if one starts by considering the nature of the treatment, 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 sanitary bin.”
The EAT also noted that the issue was“a factor in the claimant not being able to use the women’s toilets but not in the unsatisfactory arrangements put in place when the men’s toilets had to be shared. Those arrangement could be remedied by putting a lock on the main door”.
This case highlights that, overall, the provision of sharing toilets would not necessarily amount to direct discrimination of itself. Nevertheless, employers need to consider the facilities it might provide in any shared toilets. Here, it was the fact that women were provided with inadequate toilet facilities in comparison with men that was the issue. Employers should therefore take measures that accommodate all employees based on their needs to avoid discrimination.