Stephen Connolly

All of this makes the facts that arose in the case of Earl Shilton Town Council v Miller very surprising. Here, Ms Miller raised a claim of sex discrimination against her (now former) employer due to their failure to provide her with access to a female toilet.

East Shilton Town Council operated out of a building owned by a 3rd party. The building was shared with a playgroup. The male toilet was located in the part of the building used by the council. The female toilet was located in the part of the building used by the playgroup. The council’s female employees could only use the female toilet if they firstly attracted the attention of playgroup staff, who would then ensure that no children from the playgroup were in the toilet and, only if there were none, the council’s female employees could then make use of those facilities. This was not a satisfactory situation as it was often hard for the council’s employees to attract the attention of playgroup staff who were busy carrying out their own duties.

As an alternative to this arrangement, the council advised its female employees they were free to use the male toilet. This consisted of one cubicle and a urinal trough. To access the cubicle, employees would need to walk past the urinals. There was no lock on the external door to the toilet, so females entering would not know if a male colleague was in the toilet before entering and, potentially, would need to walk past a colleague using the urinals to use the cubicle. While provision was made for a sign to be placed on the door indicating a female was using the toilet, this would often fall off.

Understandably, Ms Miller was unhappy at this arrangement and argued (amongst other things) that this amounted to direct discrimination on grounds of sex.

The law

Direct sex discrimination is covered by section 13(1) of the Equality Act 2010 (EA). It provides that direct sex discrimination occurs where, because of sex, A treats B less favourably than A treats or would treat others.

This will require:

• An employee claiming direct discrimination should show that they have been treated less favourably than a real or hypothetical comparator whose circumstances (other than the existence of the protected characteristic) are not materially different to their own.
• The less favourable treatment must be because of a protected characteristic. This requires the tribunal to consider the reason why the claimant was treated less favourably: what was the employer’s conscious or subconscious reason for the treatment?
• The tribunal will need to consider the conscious or subconscious mental processes which led A to take a particular course of action in respect of B, and to consider whether a protected characteristic played a significant part in the treatment.
• Direct discrimination on grounds of sex cannot be objectively justified.

Ms Miller asserted that the direct discrimination was inherent in the treatment because of a difference of treatment between women and men in the provision of toilet facilities adequate to their needs. Her claim was upheld by the Employment Tribunal, but the council appealed against that decision.

Interestingly, the council sought to argue that:

• the employment tribunal found that the reason for the toilet arrangements made for the claimant resulted from safeguarding requirements as applied to the playgroup, so the unfavourable treatment could not be on the basis of sex.
• the employment tribunal should have considered whether the risk a man faced of being observed using the urinal by a woman was equivalent to that of a woman seeing the man using the urinal, such that there was no less favourable treatment.
• Both of these arguments were rejected by the EAT, who stated “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 bin. That treatment was less favourable than that accorded to men.”

What lessons can be learned?

This case appears to be one that resulted in a sensible decision. The failure to provide a toilet for females is difficult to see in any other light other than that being less favourable treatment.

This may seem an obvious outcome, but it is a timely reminder that employers do need to ensure that adequate facilities are made available for all employees, no matter their gender. While not an issue that, on the facts of this case, is likely to be a troubling or worrying one for employers, it should be remembered that society and workplaces are becoming ever more diverse, with employees and workers identifying and presenting in many different ways: we no longer live in a world where this is limited to male and female. Recent figures suggest there is an ever-increasing number of trans gender related claims being brought before the employment tribunals and the issue raised by Ms Miller is one which may create a need for greater consideration by employers in that context.

A trans person should be free to select the facilities appropriate to the gender in which they present. For example, a trans person living as a male on a full-time basis they should be afforded the right to use the male facilities. Where employers offer gender-neutral toilets and changing facilities, the risk of creating a barrier for transgender people is alleviated. However, if suitable arrangements are not put in place then businesses may find that this creates a further risk of direct discrimination claims on the basis of gender reassignment.

Stephen Connolly is a partner at Blackadders LLP