Inadequate shared toilet facilities gave rise to sex discrimination

In a case which could have an impact on golf clubs, the Employment Appeal Tribunal (EAT) case of Earl Shilton Town Council v Miller [2023] EAT 5 has recently considered the question of whether the provision of inadequate toilet facilities in the workplace could give rise to direct sex discrimination.

Background

The respondent was a town council operating from a building, owned by the Methodist church, part of which hosts a playgroup. The men’s toilets were in the part of the building used by the employer and its staff whereas female toilets were in the part of the building used for the playgroup. Women’s toilets were used by both female employees and children attending the playgroup. Before using the toilet, female employees had to speak with one of the playgroup’s staff and wait until the toilets were checked to see if a child was present. From May 2017, the respondent offered female employees the option of using the men’s toilets. The measure in place was a sign that should be placed on the door when the men’s toilets were being used by a woman which did not always stay in place. There was no lock on the entrance door to the men’s toilets and the only facility suitable for women was the single cubicle which could only be accessed by passing the urinal and no sanitary bin was available / provided.

Consequently, there was a risk of a man entering the toilets regardless of the sign on the door or because the sign had not stayed on, which meant that a woman might see a man using the urinal on entering / leaving the men’s toilet. When a sanitary bin was eventually installed in June 2018, a request had to be made for it to be emptied each time. The claimant, a female employee of the respondent, claimed sex discrimination in respect of toilet facilities for the duration of her employment.

The Employment Tribunal (ET) held that the employee had been subjected to a detriment and treated less favourably than men. The respondent appealed, arguing that the ET erred in law.

The law

Section 13 of the Equality Act 2010 (EqA) provides that:

‘A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’
Section 23 EqA provides for a comparator in direct discrimination cases and states that: ‘On a comparison of cases for the purposes of section 13 (…) there must be no material difference between the circumstances relating to each case.’

Decision

The EAT held that the ET did not err in law in holding that the respondent’s provision of toilet facilities for female employees was inadequate and that it had subjected the claimant to direct sex discrimination. The EAT particularly highlighted that:

“A woman being at risk of seeing a man using the urinals is obviously not the same as the risk of a man seeing another man using the urinals … 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.”

The EAT also noted that the issue was a factor in the “…unsatisfactory arrangements put in place when the men’s toilets had to be shared. Those arrangements could be remedied by putting a lock on the main door to the toilet and requiring men and women to lock it when in use.”

Comment

This case highlights that, overall, the provision of sharing toilets would not necessarily amount to direct discrimination of itself. Nevertheless, golf clubs need to consider the facilities they might provide in any shared toilets. Here, it was the fact that women were provided with inadequate toilet facilities in comparison with men that was the issue. Golf clubs should therefore take measures that accommodate all members and employees based on their needs to avoid discrimination.

For further advice on this matter or any other legal issue affecting your golf club, please contact Alistair Smith, CEO of the NGCAA, on office@ngcaa.co.uk or 01886812943