Background:

The employer, the Town Council, operated from a building owned by the Methodist Church.  Part of the building was used by the Town Council and another part of the building was used for the purpose of a playgroup.  The issue arising was that the men’s toilets were included in part of the building used by the Council yet the women’s toilets were in the part used by the playgroup.   This led to the employee taking an action citing sex discrimination.  This was primarily based upon the fact that if they wanted to use the women’s toilets they would have to check to see if a child was present.  They were later offered the use of the men’s toilets but there was only one cubicle where the users would have to pass a urinal.  Additionally, there was a sign given to say it was being used by a female (there was no external lock) yet this fell off.  There was also no sanitary bin and when one was later provided a request had to be made for it to be emptied.

Outcome:

The Tribunal, at first instance, found that the claimant had been subject to detriment and treated less favourably than male employees.  The Town Council appealed that decision to the EAT.

In terms of detriment the respondent asserted that the Tribunal should have considered whether the risk faced by a man faced by being observed using a urinal was the same as a woman seeing the man using the urinal.  That would, in their view, mean there was no less favourable treatment.   This point was not agreed by the EAT citing that the Tribunal was able to conclude that the toilet facilities were inadequate.  When it came to a comparator, the employer stated that the EAT should consider that there were safeguarding requirements in relation to the toilet arrangement and that the less favourable treatment was not based upon sex. The Tribunal had determined that the treatment was inherently based upon sex and so the ‘mental process’ did not have to be considered. This was agreed by the EAT.  The safeguarding issue could go only go to motive and not prevent direct discrimination.   The EAT provided some practical advice citing that the arrangement could be remedied by putting a lock on the external door and requiring to be locked when in use. As a result, the appeal failed.

Practical Guidance for Employers:

This case relates to the issue of toilet provision which clearly gives rise to potential issues of sex discrimination.  In this case, the EAT has made it clear that where there is a difference in provision then that would be direct discrimination as it is inherently based upon sex.  This was even so where there were other issues at play, such as safeguarding, considering the proximity of the playgroup.  Bearing that in mind, employers should be mindful of toilet provision and that there is equal provision given as it could lead to a sex discrimination claim if that were not the case.  
https://www.gov.uk/employment-appeal-tribunal-decisions/earl-shilton-town-council-v-ms-k-miller-2023-eat-5