Permitting unequal access to toilets and toilet facilities between male and female members of staff can amount to direct sex discrimination when the inherent reason for less favourable treatment is that of sex.
Section 39 of the Equality Act 2010 (EQA) renders detrimental discriminatory treatment unlawful:
(2) An employer (A) must not discriminate against an employee of A's (B)—
(d) by subjecting B to any other detriment.
Direct discrimination is defined by section 13 EQA:
(1) 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.
The claimant worked as an Office Clerk for the Town Council, which was operated from a building from which a playgroup was also running.
To access the male toilets, it was simple. They were in the part of the building used by the respondent.
However, for female staff members to use their toilets, they had to share them with the children in the playgroup. Due to child safeguarding and security, in order to access these toilets female employees had to attract the attention of one of the playgroup staff members, and wait for them to check that no children were using the toilets.
Due to the nature of their work, it was not always possible to attract the attention of the playgroup staff and this therefore could lead to issues if the toilet were needed urgently.
In an attempt to work around this, females were offered the use of the male toilets, which consisted of a trough-style urinal and a single cubicle (accessed by walking past the urinal).
As there was no lock on the main toilet door, a sign was provided for the door to say a woman was using it, but this did not always stay in place. As such, there was a risk that a man could enter the toilet whilst in use by a woman, potentially leading to a woman seeing him using the urinal.
As a men’s toilet, there was also no means of disposing of sanitary products. Five months after this arrangement began, an internal lock and sanitary bin were provided, however, this was only emptied upon request.
A claim for direct sex discrimination was made.
Employment Tribunal (ET)
The ET was in no doubt that the claimant was subjected to a detriment as a result of the arrangement put in place by the respondent; the fact the respondent tried to argue that female employees did not have to use the men’s if they didn’t want to, and the lack of sanitary disposal was merely an ‘oversight’, was no defence:
“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 (the risk need not have materialised to be a detriment in our judgment) and not having a bin in which to dispose of sanitary products as a series of detriments.”
The claimant was also treated less favourably, as at no point were any of the men working for the respondent prevented from having immediate access to a toilet. There was no risk of a man seeing a member of the opposite sex using the toilet, nor of being disadvantaged by not having access to a sanitary bin (nor facing the invasion of privacy by having to request to have that bin emptied).
The ET then had to ask itself if this difference in treatment was sex. The answer was a resounding yes – sex was the reason for the nature of the arrangements, and therefore the respondents’ actions were inherently discriminatory.
This was appealed.
Employment Appeal Tribunal (EAT)
It was argued in the appeal that the reason for the different toilet arrangements was due to safeguarding concerns around the children in the playgroup, and had nothing to do with sex. It was also said that the risk of a man being observed using the urinal was as much a concern as for the women risking seeing it, and therefore the treatment was not less favourable.
The EAT rejected the appeal. No error was found in the ET’s determination of the case, and the argument put forward by the respondent was incorrect:
“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 urinal is obviously not the same as the risk of a man seeing another man using the urinals.
Put another way, 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 a sanitary bin. That treatment was less favourable than that accorded to men.”
(Note, it was not argued before the ET that a man at risk of being seen by a woman whilst using the toilet was being treated less favourably.).
It was held that as the toileting provision for women was inadequate compared to the male equivalent, and therefore put women at a detriment, and thus less favourable treatment was inherent because of sex, this was a clear act of direct discrimination.
Note for employers
This case is a reminder of the need to ensure that all employees need equal access to equal facilities. Unlike indirect discrimination, direct discrimination cannot be objectively justified. As such, the safeguarding matters could not be taken into account by the tribunal as an attempt to justify the unequal treatment (whether or not that would have succeeded is another matter).
Ultimately, it comes down to the question: do the arrangements in place put one sex (or race, or age, etc.) at a detriment not faced by the other? To answer this, employers should take into account a range of views from both sides before making an informed decision.
The claimant who worked for the Town Council brought a claim against the council for direct sex discrimination. Due to the females not having access to a toilet, and having to use the male toilets which weren’t fit for purpose (facilities to dispose of sanitary products and locks on the cubicles).
At the employment tribunal, they were in no doubt that the claimant was subjected to a detriment as a result of the arrangement put in place by the respondent. They had to ask themselves if the difference in treatment was down to sex. The answer was a resounding yes.
The respondent appealed the claim, which was rejected, as no error was found in the ET’s determination of the case, and the argument the respondent put forward was incorrect.
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