Facts: Ms Miller, the employee, was an office clerk at Earl Shilton Town Council. The Council offices are based in a building which also hosted a playgroup. The male toilets are situated in the part of the building used by the Council, but the female toilets are in the part used by the playgroup. To use those toilets, Ms Miller had to ask playgroup staff for permission and they would then check no child was using the toilets at the time. This caused difficulties because the staff were not always available.
After eight months, female employees were offered the alternative of using the male toilets. This consisted of one cubicle which could only be accessed by passing a urinal. Although the cubicle could be locked, the outside door of the toilet block had no lock. A warning sign was provided to show when the toilet was being used, but it did not always stay in place. Female staff might therefore have to pass men using the urinal when entering or exiting the toilet cubicle. In addition there was no sanitary bin.
It was not until over a year later that a lock was fitted onto the outside door and a sanitary bin was provided (although it was only emptied on request).
Ms Miller brought a Tribunal claim for direct sex discrimination.
The Tribunal upheld Ms Miller’s claim. It said that Ms Miller had been less favourably treated than a comparable man. She did not have immediate direct access to toilet facilities, she risked seeing a man using the urinal and did not have a sanitary bin.
The Council appealed. In particular it argued that a man was just as much at risk of being seen at the urinal as a woman was of seeing them.
The EAT dismissed the appeal. It said that Ms Miller was not provided with toilet facilities that were adequate to her needs. This was 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 provided to men.
The EAT was particularly critical of the Council because it said it could have taken relatively easy steps to improve the situation. It could have fitted a lock to the outside toilet door and taken swift action to provide a sanitary bin.
The EAT noted that a man may also be able claim direct sex discrimination in these circumstances, on the basis that the arrangements treated him less favourably due to the risk of being walked in on by a woman whilst using a urinal. However, this in no way diminished Ms Miller’s own discrimination claim based on less favourable treatment as a woman.
Although there are no legal surprises here, it is a good reminder of the importance of providing suitable toilet facilities and the risks of not doing so. This can present a real headache for employers, particularly those with old or small workplaces. It is also particularly tricky in light of the requirement by some employees for gender neutral toilets.
Therefore in providing such facilities, employers should consult with, and consider the needs of, all its employees. If gender neutral toilets are required, then these should be of a satisfactory standard – unlike in this case.
However, do make sure you still also have male and female toilets. The Health and Safety Executive’s guidance on toilet provision (available here) recommends such separate facilities for men and women (rather than unisex facilities) where possible, or otherwise rooms with lockable doors.