ICA in London: loos

@Keeptoiletssafe Thanks again for the information you provide across multiple threads, I always find your subject knowledge informative and helpful.

‘Under the Health and Safety at Work, etc Act 1974 (HSWA) the person who is in occupation or has control of the premises owes a duty of care to all their visitors. Employers must ensure, as far as is reasonably practicable, that in the course of their activities, persons who are not their employees are not put at risk.
Furthermore, the Management of Health and Safety at Work Regulations 1999 require an employer to “make a suitable and sufficient assessment of the risks to the health and safety of persons not in his employment arising out of their undertaking”. So the duty to carry out risk assessments extends to visitors as well as employees. A risk assessment should look at the potential risks for a visitor entering your premises and decide what precautions should be put in place, such as communicating on site safety information.’ This is from a lawyers website. The HSE info on 1974 regs is here.

I can see a lot of problems in terms of risk assessments for the toilets on their website which I have managed to attach a picture now. The coloured lighting I am presuming is a design choice rather than a way of preventing drug use (which has been deemed unsafe anyway). There are health and safety risks with coloured lighting and the British Toilet Association does not recommend it. I would not consider coloured lights to mean the cubicle is ‘well-lit’ like it should be in legislation.

It looks like the toilet cubicles can be opened easily with a coin turn which is good but I am not sure how they change to open outwards, to allow the retrieval of someone collapsed against the door. A good demonstration of good design can be seen .

There is a danger of someone being in there for a long time as the floor-door gap is minimal. This discriminates against people with medical conditions such as epilepsy, diabetes, heart conditions.

It does say there are female and male toilets in other sections of the building so it could be argued that people with known conditions or those that prefer single sex toilets would have a choice. However, this isn’t great for anyone having a medical emergency like a cardiac arrest (11% happen on loos) or a woman or child getting pushed into the loo. You need good sightlines for many women to feel comfortable. Also having shared sinks isn’t very dignified if you have blood on your hands in front of men.

Unisex toilets (which was traditionally the disabled one) were placed opening on to a main foyer for safety reasons - so you could monitor who was going into the private design. I have got lots of examples where women and children have been abused in toilets in very public spaces for example train carriages, stations, schools, clubs. What seems to be the common factor is the privacy and sound resistance. These don’t look the worst but it depends where they are positioned.

As well as preventing assaults, the door gaps serve as a very quick way of evacuating a building in the event of a fire. When you ‘check the loos’ in a fire drill, it takes much longer when you are checking each individual cubicle rather than checking for feet. There is a duty to risk assess for fire safety. There were some nasty accidents which lead to the introduction to the 1974 Act. There are regs on which doors need to be considered fire doors.

The final bit is ventilation. There should be a specific number of ‘turnovers of air’ so pathogens and smells don’t build up. These should probably need mechanical ventilation to be compliant. I can’t tell from the photo.

There are best suited to healthy men.

I think what you propose to write is good.

You are correct that the specifications for providing single sex toilets in
The Workplace (Health, Safety and Welfare) Regulations 1992 only apply to employees. However, failing to provide women customers with female only toilets or properly enclosed unisex toilets could be discrimination or harassment. This hasn't been tested in law yet. OP, write to the ICA and explain how uncomfortable you felt sharing a toilet space with men. Ask them to provide single sex toilets or properly enclosed toilets for their customers. It is really uncomfortable sharing a hand washing area with men and you are not being unreasonable to raise this.

Are these them @LittleBitofBread ? Are the shared sinks to the right, obscured by the wall?
A quick google of their website showed me this picture. Their website is very inclusive in terms of helping people to navigate and understand what to expect when visiting.

edit: photo didn’t attach so adding link https://www.ica.art/visual-story-guide#what

You make excellent points in your proposed email.

IANAL, but just fyi, sexual harassment is what we would all recognise as such but harassment related to sex under the EA can simply be the presence of a person of the opposite sex. If you experience unwanted behaviour related to being a woman - and the presence of a man in the women's changing room or toilets, regardless of whether he did anything or said anything, counts as that - it could be unlawful discrimination by the service provider who put you in that position.
Though I think you're wise not to go there as a lay person.

https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102kb9l/do-retailers-have-to-provide-single-sex-toilets-and-changing-rooms-for-their-cust

I agree this is very confusing. I disagree with a previous poster on what constitutes a ‘room’ in 1992 legislation. I have references to what building standards they would have been referencing at the time. A room was not a full height cubicle, it was the solid room within which the cubicles were situated. Building Standards were that a mixed sex toilet should contain all the facilities and be in a room. At the time, this mostly meant a disabled toilet or instances like small cafes where there was only one toilet or a ‘super loo’ in the street.

When this legislation was written in 1992 no one would have foreseen that men would be using women’s toilets and vice versa unchallenged. No one would realise we would have cameras in our hands most of the time and cameras could be so cheap and be hidden and be made to look like screws etc.

I also believe that it can be argued 1992 and 1974 Health and Safety legislation does include customers to venues as there is a line about health and safety of visitors to the workplace in legislation.

https://www.legislation.gov.uk/uksi/1992/3004

Part 20 is the section about toilets.

Interestingly the ‘secured from inside’ bit is arguably (rightly) contradicted by building standards. It’s been the case for years you should be able to get inside a public toilet room or cubicle from the outside because people collapse in toilets or misuse them.

Whats happened is we have a huge mishmash of designs which are the worst of all worlds. You can end up with a mixed sex cubicle that is private (no floor to door gaps) and replacing a single sex design so out of the way. The occupant can’t see or hear what is going on but a man can let himself into or lead or push a woman back into. It also means anyone collapsing can’t be seen on the floor (from outside the cubicle) to be rescued in time and the body can be there for days. This used to happen more in disabled toilets but this tragically has spread to offices, restaurants, clubs and even schools.

It is absolutely right that Document T says single sex toilets should be prioritised. In document T it is clear that single sex toilets are the only ones that can have door gaps but it doesn’t specifically state they should. That’s what I have discussed (via email) with HSE to hopefully get the details added back again.
Obviously in order to have door gaps above and below the door the area in front of the toilets, usually containing the sinks, should be single sex too.

There is a section in health and safety legislation about the toilets being adequately ventilated and lit. This has become more of a problem recently with enclosed toilets, particularly when the door rests in the closed position. Scientific evidence shows the pathogen load is much greater due to reduced ventilation and reduced ability to clean.

I agree it is discrimination to only have mixed sex facilities.

I strongly believe single sex toilets with door gaps should be provided as the default so anyone having a medical emergency stands a better chance of being rescued in time. This would save the lives of men, women and children each year. I would categorise it as an essential (very) reasonable adjustment for the millions of people in this country with epilepsy, diabetes, brain and heart conditions. Some of these conditions are classed as disabilities. From my research I know this design prevents women and children from being assaulted inside toilet cubicles and rooms, by men. It would also reduce the opportunity for hidden cameras to be positioned, particularly in women’s toilets. Perpetrators don’t like witnesses. Voyeurs are always men.

I ageee there’s an arguable claim under the EA for discrimination (I’m not sue harassment will fly, nobody is forcing the OP to use this toilet, but what do I know?).

Until there’s a body of case law to that effect though it’s just a claim. Let’s say the OP says “this is unlawful harassment” and the ICA tells her “no it’s not, please kindly fuck off”. What is she going to do next?

I'm no longer talking about Doc T.

The volunteer's case in Earl Shilton vs Miller was argued under the EA. The principle was established (or confirmed?) in the EAT that making men and women share toilets was harassment of this woman on sexual grounds and infringed the rights of both men and women to privacy and dignity. It would be irrational to say none of that matters because the women are not employees. I also seem to recall a section in the EHRC guidance about single sex rather than unisex facilities being the norm and failure to provide ss facilities for women (unless space precluded this) could lead to liability for sex discrimination. Does that ring a bell for you? I now can't find the guidance, of course.
The EA doesn't mandate separate toilets but it does outlaw discrimination. So if women (or men) are disproportionately disadvantaged by the way a duty-bearer chooses to provide facilities/opportunities etc and no exception applies, then the duty-bearer is unlawfully discriminating on the basis of a PC.

Those cases don’t help us because this is not an employment situation. Document T doesn’t apply to anything built before 2024.

There’s no obligation on service providers to provide single-sex toilet facilities. They can if they want but it’s not mandatory.

You may be able to look into local licencing bylaws. It’s hard to imagine that the ICA could get away with no toilets at all, and the regulations (whatever they are) that mean they’ll only get whatever sort of licence they need might say what kind of toilets are needed from a licencing perspective.

https://assets.publishing.service.gov.uk/media/63d8076fd3bf7f252a730a11/EarlShiltonTownCouncil-v-MsKMiller2023EAT5.pdf
Regarding what Jellysaurus said above - this is an Employment Appeal Tribunal case which agreed that a female volunteer was being discriminated against because she had to share toilet facilities with men.

Toilets are also at issue in the ongoing Employment Tribunal case of Kelly Vs Leonardo - among other things, a formerly women only toilet was rebadged as unisex.

ETA: The expert on toilets generally and Document T is keeptoiletssafe.
And MariedeGournay has studied Doc T.

You’re right that there is only legislation around toilet facilities provided for certain demographics (employees, schoolchildren, andNHS patients, IIRC).

Providing only mixed-sex communal facilities that do not offer security and privacy to the user could be discriminatory to those unable to use mixed-sex facilities, regardless of who that user is. This has not AFAIK been tested in court.

The fact that woman=human female was so obvious that legally defining it did not occur to people - until women had fight the men who took advantage of the lack of definition to legitimise abusive behaviour. Similarly, the idea that mixed-sex toilets discriminate against women is obvious. But, as with what a woman is, it will take court cases to establish something that everybody knows.

Hello - regarding opening out into a public area rather than a lobby with the sinks in it, I was thinking about Document T but it only applies to new buildings.
Apologies.

Ok, now I’m confused. Are they in breach of the law or not?

No. Ask anyone who tells you they are to specify which law they breach.

I was responding to a pp who says, ‘These loos are only suitable for single sex use - they are not self-contained cubicles and they don't open onto a public area

I know. Ask that poster what law requires that.

Can I ask: do unisex loos have to open onto a public area? What’s the reasoning?

I would ask anyone claiming that they do to say which regulation requires this.

It’s legal for public use: there’s no law mandating the provision of single sex toilets other than to employees.

There may be a case of discrimination to answer, but nobody has taken this to court yet. So it’s a long way from there to say they’re unlawful right now.

For employers to provide to employees: they’re legal if the cubicle doors are floor-to-ceiling (and are therefore individual rooms). There’s no law that says unisex washing facilities have to be in the same single-user room as a sanitary facility, up until the 2024 update to the building regulations which apply only to new and refurbished facilities.

For anything built or refurbished since 2024, they’re not legal, and wouldn’t have got LA approval to be built that way.

You are correct.