Direct Sex Discrimination – A Matter of Common Sense
Did the Employment Tribunal make an error when it decided that the Respondent’s provision of inadequate toilet facilities for women subjected the Claimant to direct sex discrimination?
No, said the Employment Appeal Tribunal (EAT) in the case of Earl Shilton Town Council v Miller. [Case no: EA-2021-000196]
The Respondent operated from a church. The building also hosted a play group. The women’s toilets were in part of the building used by the playgroup and were used by those attending that group. Female employees had to attract the attention of playgroup staff to ensure the toilets were not occupied by children so that they could use them. However, this arrangement made them unsuitable for urgent use. Female employees were offered the use of a toilet cubicle in the male toilets but access required passing the urinals. There was also the risk of men entering the toilet and no sanitary bins.
The Respondent argued, first, that the less favourable treatment could not be because of sex where the toilet arrangements resulted from safeguarding requirements; and second, that there was no less favourable treatment given the risk a man faced being observed when using the urinal was equivalent to that of a woman seeing the man use the urinal.
The EAT dismissed the appeal finding that a woman being at risk of seeing a man using the urinal is not the same as the risk of a man seeing another man using the urinal. Applying ‘robust common sense’ the EAT said that 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 provision. That treatment was less favourable than that afforded to men.
The Respondent did not argue the second limb of the appeal in the EAT. However, it was noted 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 woman did not object to the arrangements.
This blog was written by Kate Lea, Senor Solicitor for didlaw.