Less favourable treatment and protected characteristics
A recent case involving a town council considered the provision of toileting facilities and whether female staff were treated less favourably than male staff when using the same facilities. The case provides a useful reminder of the law on less favourable treatment inherent to a protected characteristic, writes Jason Braier.
In Earl Shilton Town Council v Miller (Re SEX DISCRIMINATION) [2023] EAT 5 the Claimant was an office clerk at the town council. The council was based in part of a building which also hosted a playgroup. The men's toilets are situated in the part of the building used by the council, but the women’s toilets are in the part used by the playgroup. To use those toilets, Ms Miller had to ask playgroup staff for permission and they would then check no child was using the toilets at the time.
A year after Miller has started, the Town Clerk offered female employees joint use of the men's toilets. They are comprised of a single cubicle and a trough urinal (from a quick Lexis search this seems to be the first judgment to ever include the term ‘trough urinal’ - a seminal legal landmark!).
The exterior door of the toilet block had no lock. A warning sign could be affixed to the door when women were using it, but it often did not remain in place. Men could use the urinal and the cubicle. Women obviously only used the cubicle. Ms Miller ran the risk of being confronted by a man using a urinal either on opening the door to the block or on coming out of the cubicle – an unwelcome sight for her.
As well as the urinal issue, there was initially no sanitary bin provided. Belatedly one was added, though it was only emptied if Ms Miller made a specific request. Eventually a lock was also added to the exterior door so that a person using the toilet could stop others entering the room, but Ms Miller had had to suffer the indignity of the urinal gauntlet for a number of months before that happened.
Among other claims, Ms Miller brought a direct sex discrimination claim in respect of the less favourable toilet situation. The Employment Tribunal allowed her claim. The council appealed and the Employment Appeal Tribunal dismissed the appeal.
The Decision
In dismissing the appeal, the Employment Appeal Tribunal focused heavily on cases on inherent discrimination (i.e where the less favourable treatment is inherently because of a protected characteristic), such as Chief Inspector of Education, Children’s Services and Skills (Secretary of State for Education and others intervening) v Interim Executive Board of Al-Hijrah School [2018] IRLR 334, Regina (Coll) v Secretary of State for Justice (Howard League for Penal Reform intervening) [2017] UKSC 40, [2017] 1 W.L.R. 2093 and R v Birmingham CC, ex p EOC [1989] AC 1155.
In simple terms, from Miller's perspective she was treated less favourably than men in being at risk of seeing a man using the urinal when she wanted to go to the toilet (worse than a man entering the toilet and seeing this) and in her sanitary bin needs not being met. The EAT was satisfied she suffered this detriment and that it was a detriment inherent in her being a woman provided with those toileting facilities, and hence that the test for direct discrimination was made out.
The EAT noted in obiter that it might be that a man could also claim direct sex discrimination on the basis that the arrangements treated him less favourably due to the risk of being walked in on by a woman whilst using a urinal. However, as with Al-Hijrah, that potential claim was in no way fatal to Ms Miller’s own discrimination claim based on less favourable treatment as a woman.
Jason Braier is a barrister at 42 Bedford Row.
He provided comment on the case to the Daily Mail: "The judgment doesn't set a precedent, but applies well-trodden principles under the Equality Act on not treating one sex inherently less favourably than the other. However, it will be interesting to see whether the publicity given to this case encourages other toilet-based sex discrimination claims."
