Kelly v Leonardo Employment Tribunal Thread 4

A friend of a friend of a friend had gone out to a cafe with her husband and toddler when she felt herself bleeding (she was a couple of months pregnant) so went off to the loo. It was a small cafe so had a single loo in its own room with a floor to ceiling door and sink and drier all inside. She haemorrhaged, threw up, hit her head and passed out. Her husband had the toddler and didn't want to make a scene/draw attention when she had been gone a while so waited a lot longer than he should have before going looking for her.

The emergency services had to destroy the door I think.

I know that this family had to deal with not only the sadness of the miscarriage but the trauma of the very public and dramatic situation around her collapsing in the toilet too and it really made me realise that the gaps and doors you can easily unlock from outside are there for a reason.

Just reread this apologies I read that as sanitary facilities (was rereading Scottish non-domestic regs)

Nearly analogous to people that

• brew up stinky food in the office microwave
• dress inappropriately at work
• wear headphones that bleed enough sound to annoy people
• talk loudly on the phone
• etc.

Unless you believe that no one can tell what anyone's sex is (including their own)

The oft heard suggestion that you could only enforce it by appointing toilet police to guard each entrance is a typical straw man argument, designed as a reductio ad absurdum. You could actually do it the same way as you police bank robberies, by reacting to complaints about transgressors.

No, I do not agree with that, which is why I part company with her on paragraph 244. If you provide separate facilities, you should expect employees to use the facilities that align with their biological sex and be prepared to take disciplinary action against any who refuse.

She's pushed policy decisions about who can use a toiled out of 20(2) and back into 20(1), which (in her argument) allows more latitude.

Do you accept that "providing" separate toilets for men and women doesn't include consideration of any policy as to who is allowed to use them?

Seems to me that even if you build separate toilets, as soon as you say some men can use the women's, you're not providing separate toilets for men and women any more. I just want to confirm with you that you don't agree with that?

The following paragraphs describe either the respondents submission or the judge's conclusion that only one person ever complained about men using the women's lavatory. I am not totally sure which are submissions and which are conclusions because the judgment layout is confusing. But at least the last one or two must be conclusions.

147 (part) In the circumstances it was not considered likely
that female staff had not raised any concerns because they were reluctant to
do so but rather because they didn’t have any material concerns.

345 (part) there were no complaints from any other member of staff

377 (part) and only 1 out of 9,500 employees raised a concern

378 (part) However only 0.05% of the female workforce had complained

The claimant gave evidence that in the JCC they were legitimately delegated to speak on behalf of members of the workforce, but this evidence seems to have been ignored and not recorded in the judgment.

The claimant's evidence that at least a few other women had expressed dissatisfaction was recorded in the judgment, but this evidence was apparently not considered in the conclusions. It might not have been accepted, but paras 377 and 378 apparently ignore it without comment on whether it is believed or not.

Are these significant omissions?

Thank you for your thoughtful post. It is about dignity, possibly rather than propriety. That wording might suggest that the J belives women need to act in a certain manner, whereas we are expecting men, be they trans-identified or not to act with propriety. Whereas having the space for dignity is applicable to both sexes.

I would assume 'immediate', for toilets, to mean without needing to open a standard (as opposed to cubicle) door. If you have dirty hands then standard doors are often too tricky to open without having to get the dirt all over the door as well. Push plates or pull handles - not hygienic or pleasant at all, even if everyone is about to wash their hands when they get to the other side! Could it be successfully argued this way?

My reasoning is that I don't agree with your interpretation of what she has written!

In paragraph 242 she says that regulation 20(2) requires separate toilets for each sex. She does not say that is all it requires. When looking at a legal judgement, it is important not to read into it things that aren't there (a mistake she has made when looking at Croft). It is only with paragraph 244 that she gets on to the question of whether employers are required to control access. The first sentence of 244 could (and perhaps should) have referred to 20(2) rather than 20(1), but the second and third sentences are where she goes seriously astray.

You don't have to rinse every time. I do if there's a sink within arm's reach, otherwise just a quick wipe with paper. Some people carry a water bottle to rinse it into the loo but I doubt I could manage that without making a mess or dropping it.

I agree she’s trying to rewrite the rules. It was clear what was a room and what was a cubicle (with gaps or not). I have never comes across the phrases she is using regarding the 1992 legislation.

Her use of the word ‘gap’ is funny - I wonder if she’s got that off here - officials use ‘space’. There has never been a mixed sex design regulation including door gaps as far as I know. She really is rewriting the rule book.

I used mooncups. No need for anything now! I wish they'd been around when I was younger.

Anyway, I never washed them out in public sinks; a wipe with loo roll was fine. Obviously I don't speak for other women, who may need or prefer to wash them each time they empty them.

Moon cups are a messy business but also a Godsend. They need emptied in the loo, rinsed out and then re-inserted. Ideally at home but sometimes in the wild.

I am proud of my period and want to break down barriers around that. But also hard to make polite chit chat with a man while wiping clots off my hand. Like someone emptying a stoma bag. We know it happens, but when emptying a bag for a relative, I want to offer them dignity and privacy while supporting them. I don’t want to have to do it at open mixed sex sinks.

More fool Michelle and her judicial knowledge of menopause, pregnancy and maternity. The law firm MacRoberts LLP where she worked since min 2010 had single sex toilets, they had breast milk expressing rooms, flexible working, remote working and everything besides. Her dignity and ‘propriety’ was intact.

She then moved on the Justiciary in 2018, and in Judicial chambers where she controls her entire environment. No one is watching her wash blood of her hands. She feels a menopausal flood and she rises. The entire courtroom stands up to accommodate her. She has privacy, dignity and is never questioned.

@Keeptoiletssafe

I don't think she's mixing up rooms and cubicles. I think she's genuinely found a (to her) satisfactory legal way to assert that cubicles (as you and I understand them - with gaps) are adequate to preserve privacy between the sexes. I don't have any doubt that she's wrong, but I think she's trying to rewrite the rules and isn't simply misunderstanding them.

I started in construction in 1988. Any single sex multi person toilet block I was involved in constructing (new buildings and conversions in older ones) had hand washing facilities just outside the toilet cubicles, but still within the space that had an external door back into the corridor.

So no mixed sex hand basins.

The women's toilets had cubicles and sinks, the men's toilets had cubicles urinals and sinks. I cannot imagine why anyone would think it OK to build 2 blocks of single sex toilets then find another space nearby to shove some sinks. If you building toilet blocks you put all the stuff needed in each block.

Ok so I think this is a repeat of something Amplesheep and I have discussed before. And it boils down to definitions and what legislators meant at the time. In both cases the Judge is wrong.

As we all know, your bog-standard (!) single sex provision is a row of cubicles, each containing a WC, within a room you have to enter. The sinks are in the room. I can’t post pictures for some reason but you know what I mean. There’s a floor-door gap in the WC cubicle and a space above the door up to the ceiling.

The judge is mixing up cubicles and rooms. In legislation a room is not a cubicle. Unisex has to be a room. In 1992 what was a room and what was a cubicle is clear in standards. Where does the judge get this: ‘a room can be formed by partitions’ come from in 243?!

This is what the Standards part 1 Section 6.1 said at the time the H&S 1992 legislation 20(2) was being written up:

Doors to WC compartments, WC cubicles and bathrooms should be fitted with simple safety locks, easily released from outside for access in case of emergency. This is particularly important where elderly or disabled persons or children are involved….where a range of WCs is provided, each in a separate cubicle within a single room, e.g. in schools, offices, factories, public buildings and public conveniences, it simplifies ventilation, cleaning and, to some extent, supervision and prevention of wilful misuse, if the cubicle walls terminate above the floor as well as below the ceiling. These advantages are gained only at the expense of a certain degree of privacy. Where cubicles are used, the whole room in which they are situated may be regarded as a single unit for the purposes of ventilation. Where partition walls and doors of WC cubicles are kept clear of the floor, the clearance should be not less than 100 mm and not more than 150 mm. Partitions and doors that terminate below ceiling level should be not less than
2 m in height from the floor.

The above shows that cubicles and rooms were very much thought as separate entities, even if there were no door gaps. It shows privacy is affected to a degree when you have door gaps and importantly completely ties in with 20 (2) in the H&S legislation 1992:

20 (2)c Sanitary conveniences
20.—(1) Suitable and sufficient sanitary conveniences shall be provided at readily accessible places.
(2) Without prejudice to the generality of paragraph (1), sanitary conveniences shall not be suitable unless—

1. the rooms containing them are adequately ventilated and lit;
2. they and the rooms containing them are kept in a clean and orderly condition; and
3. separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside.

My bold.

Interesting. Mooncups only came long after I finished my early menopause, so I've never used one. No girls in the family, so I've never needed to understand how they work. I genuinely hadn't realised that women needed to rinse them out during the day. In my head i just thought start and end of day at home. You could be anywhere - work, public toilets, cafes, etc. So your final point is well made - thank you.

What's your reasoning to follow her interpretation of 242?

To my mind when you "provide" something in a particular way, you have to not just build it, but operate it in such a manner as to meet the required condition.

In the sense that the law is always speaking, the requirement that "separate rooms are provided" reaches through the moment that the user enters the toilet and extends to the time they leave it, and beyond. I don't see how you can terminate that requirement after the bricks and mortar are assembled.

If I agree to provide you with lunch, that doesn't mean just once back in 1963, it means I have to make a lunch available to you, at lunchtime.

I agree with her paragraphs 242 and 243, but paragraph 244 is ludicrous. She offers no evidence that a biological or certified gender approach could be "counter to the primary purpose" and asserts that neither approach is reasonably practicable, so clearly it is not, in her view, reasonably practicable for an employer to tell employees that they should use the facilities that align with their biological sex and expect them to do so. That, after all, is all that is required. I can only assume she thinks that controlling use would require someone stationed outside the toilets administering gender tests on anyone who wanted to enter.

It is the same person. It’s through kids names but it’s her.

The FWS covered single sex ablution spaces.
A lower court cannot contradict a higher one and expect to go unchallenged.
Nice for Naomi and Charlotte to get more fees.
Bad for UK civil society.

Not trying to explode anyone's head, but instead trying to understand the judgement, the better to understand what might be appealable.

Here's the summary of the section on the interpretation of the Workplace Regulations as interpreted by the Judge, with my commentary restatement of her argument as I follow it to be.

242. In summary, the specific duty under Reg 20(2) requires the provision of separate toilets for men and women by way of the physical estate designed to meet their different physiological and biological needs such that workplaces are commonly constructed or adapted to have a toilet facility with cubicles and 25 a urinal badged as male, a toilet facility with cubicles and sanitary bins badged as female and an accessible toilet facilities badged as disabled.

The requirement for "separate rooms containing conveniences are provided for men and women" should be interpreted as a duty extending only as far as building separate spaces, such that the men's suits men's physiological needs, and the women's mutatis mutandis.

243. Under Reg 20(2) separate toilet blocks must be provided for men and women except where each toilet is in a separate lockable room which may be formed by partitions. There is no requirement under the 1992 Regs for that room to 30 contain the hand basin provided it is readily accessible. Each toilet must be compliant with the general duty of health, safety and welfare under the 1974 Act, but it is not necessary for all toilets to comply with Reg 20 provided a sufficient number do comply.

Other than the comments on whether washbasins have to be in the room or not, all toilets must be generally safe etc. but it's not necessary for all toilets to comply with regulation 20, as long as enough of them do.

244. The broader duty under Reg 20(1) to provide suitable and sufficient facilities requires access to those facilities to be controlled only to the extent reasonably practicable to ensure the primary purpose of health, safety and welfare (including bodily privacy) for all users and the secondary purpose of moral propriety between the sexes. This does not necessarily require either a biological or certified gender approach which may be counter to the primary 40 purpose and in any event not reasonably practicable. In most cases the respondent will have no reason to distinguish between sex and gender.

As far as policy on who can use which toilet, this is explicitly not covered by the absolute "separate rooms ... for men and women" clause. Instead, policy has to reasonably ensure primarily health safety and welfare, with a secondary purpose of propriety between the sexes. This could be done on a biological, or certified gender, or another approach. And in fact a biological separation of who uses which toilet might not only be impossible but could be contrary to the primary health, safety and welfare purpose of the legislation.

Unbelievable.

Yes, I realise, I was wtaf agreeing!

It what secondary school children have to put up with. It’s awful.