Can providing shared toilets at work discriminate against men and women at the same time?

Yes.  In the case of Earl Shilton Town Council v Miller,  there is no need for any group to be disadvantaged. An arrangement can simultaneously be directly discriminatory against both sexes at the same time.

What did the case involve?

Toilets – to be precise: male and female employees having shared toilets.

The council – a small employer, occupied shared premises with a playgroup. While the male toilets – featuring a urinal trough and a solitary cubicle – were situated in the council’s area, the female toilets were located in the playgroup’s section of the building. Consequently, female employees were required to request the playgroup staff to inspect the toilets for any children present before they could use them.

The council devised an alternative solution whereby they placed a sign on the formerly male-only toilets to signal when a female employee was using them. However, this approach was not entirely fool-proof, and there were instances where female employees would enter the toilets or exit the cubicle while a male employee was using the urinal. Similarly, male employees using the urinal would occasionally be interrupted by female employees entering the toilets.

Ms. Miller brought a direct sex discrimination claim citing various concerns related to the arrangements, as well as the inadequate provision of a sanitary bin that necessitated her to notify a maintenance staff member to empty it. The tribunal ruled in her favour. The Council appealed.

The Appeal

The EAT considered what detriment the female employees suffered –  for direct discrimination claims, there needs to be a comparator. Here the comparator was a male employee – but both male and female employees were happy with the arrangement. Was “being walked in on” as bad as “walking in on” someone?

S13 of the Equality Act is concerned with less favourable treatment rather than different treatment. The EAT considered a Court of Appeal case where a school operated segregated playing areas for boys and girls and found that the same treatment can, at the same time, be less favourable. The individual nature of direct discrimination, not requiring (as indirect discrimination does) any group disadvantage. It was sufficient that a particular boy or girl, from their individual perspective, suffer the detriment of being segregated from the other sex, and they do so because of the protected characteristic of their sex. In particular, the fact that a person of the opposite sex could bring a “mirror image” claim does not invalidate the ability of either to do so.

 “In certain circumstances treatment that is the “same” could be less favourable treatment and in other circumstances treatment that is “different” would not be less favourable”.

HHJ James Taylor

Taken from her perspective the claimant was treated less favourably than men in that she, a woman, was at risk of seeing a man using the urinals. While a man might see another man use the urinals, the treatment of the claimant, as a woman, was less favourable. 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.

15th March 2023




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