Was the Respondent's provision of inadequate toilet facilities for women inherently less favourable treatment that therefore subjected the Claimant to direct sex discrimination?
Yes, held the EAT in Earl Shilton Town Council v Miller.
The Respondent operated from a church building that 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 the group. Female employees had to attract the attention of playgroup staff to ensure the toilets were not occupied by children. 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:
1. that the less favourable treatment could not be because of sex where the toilet arrangements resulted from safeguarding requirements and;
2. 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 the appeal finding that a women 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’ 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 provisions. That treatment was less favourable than that accorded to men.
The Respondent did not argue the second limb of the appeal in the tribunal. However, it was 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 woman did not object to the arrangements.
Thanks to Kate Lea of didlaw for preparing this case summary.
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