Yes said the Employment Appeal Tribunal (EAT) in the case of Earl Shilton Town Council v Miller  EAT 5.
The Claimant in this case was employed as an Office Clerk to the Council, which operated out of a church. The same church hosted a playgroup. When the playgroup was in operation the women’s toilets were used by children attending the playgroup. If any of the female Council employees wanted to use the female toilets they needed to attract one of the playgroup staff who would check that the toilets were not being used by children (for safeguarding reasons), before the Council employees could use the facilities.
This arrangement caused problems for the Claimant when she needed the toilet urgently as it was not always easy to get the attention of staff.
To address this situation, the Council’s Town Clerk offered female employees the use of the men’s toilets (which consisted of one trough urinal and a single cubicle). There was no lock on the door to the men’s toilets. There was a sign that could be used when a female was using the facilities but it would often not stay in place. There was no sanitary bin in the cubicle and the cubicle could only be accessed by walking past the urinal. There was therefore a high risk that a woman using the facilities may walk out of the cubicle after use to see a man using the urinal.
The Claimant argued that the toilet facilities for women were inadequate and this amounted to unfavorable treatment that amounted to direct sex discrimination.
In response 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 of a man being observed when using the urinal was equivalent to that of a woman seeing the man use the urinal.
The Claimant won her claim at the Employment Tribunal and following an appeal by the Council, the EAT dismissed the appeal.
The EAT found that a woman being at risk of seeing a man using the urinal was not the same as the risk of a man seeing another man using the urinal. It said 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 products. The treatment was therefore less favourable than that afforded to men.
Whilst not raised in the claim, it was also considered that any failure to object to the arrangements by a woman would not be fatal to the claim: the key issue was whether there was unfavourable treatment compared to men and in this case, there was.
This is quite a unique case and more often than not, common sense will prevail to prevent such a situation arising. An easy solution here was a lock being put on the men’s door and a sanitary bin being put in the cubicle but this did not happen until quite some time after the arrangement was put in place, and whilst this remedial action was necessary, it did not negate the existence of unfavorable treatment having occurred.
This case serves as a useful reminder to continually review what facilities are provided to staff, and where there is an issue with these, promptly provide alternative solutions that are fit for purpose and comparable for all employees.