The Employment Appeal Tribunal (EAT) has found that Earl Shilton Town Council discriminated against female employees by providing ‘inadequate’ toilet facilities.
The Judged dismissed an appeal from the Council finding that providing toilet facilities that lacked sanitary bins and required women to walk past men using urinals was discriminatory on the grounds of sex.
The Council operated from a church building that also hosted a playgroup. The women’s toilets were in part of the building used by the play group, so if female employees needed to use them, they had to attract the attention of playgroup staff to ensure the toilets were not occupied by children. This made the arrangement unsuitable if women needed urgent access to the facilities.
Female employees were offered the use of a cubicle in the male toilets which could only be accessed by passing the urinals. There was no lock on the toilet meaning there was a risk that men would enter, and there was no sanitary bin provided.
The Claimant brought a claim in the Employment Tribunal arguing that this arrangement resulted in direct sex discrimination against women on the basis that women were placed at a disadvantage because the toilet provision was not adequate for a woman’s needs. The Tribunal found in the Claimant’s favour and the Council appealed against its decision.
The Council argued:
- That the less favourable treatment could not be because of sex where the toilet arrangements resulted from safeguarding requirements; and
- That there was no less favourable treatment given the risk a man faced of being observed when using the urinal was equivalent to that of a woman seeing the man use the urinal.
The EAT dismissed both arguments and concluded that 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 provisions, and that this treatment was less favourable than that accorded to men.
The EAT also observed that the fact that a man might also be able to assert direct sex discrimination would not be fatal to the Claimant’s claim, just as it may not be fatal if another women did not object to the arrangements.
This case shows the importance of employers providing adequate toilet facilities for female employees in the workplace, not only to avoid expensive claims of sex discrimination but also to adhere to their obligations to provide a safe, supportive and inclusive working environment.
Our Employment Team have significant experience in advising in discrimination at the workplace. If you have any queries, or require any assistance, please contact us on 0345 646 0406 or fill in our online enquiry form and a member of the team will be in touch.