Kelly v Leonardo Employment Tribunal Thread 4

My head is getting close to exploding with the various arguments around the regulation and configuration of toilets and basins. I take comfort from the thought that Charlotte Elves will thoroughly go through all of this and then Naomi Cunningham will tie it up in a neat little package that the thickest EAT Judge will easily understand.

Sorry - should have said. The bold text is written by the judge, highlighted by me. It's her interpretation of the regulations.

The Approved Code of Practice from the HSE says this, immediately after the section on toilets:

193 Washbasins should have hot and cold, or warm, running water, and be large enough to allow a worker to wash their face, hands and forearms.

Showers or baths should also be provided where the work is: ■ particularly strenuous; ■ dirty; or ■ results in contamination of the skin by hazardous or offensive materials.

It does appear to suggest that absent any of those conditions being present, if an employer provides facilities for washing only face hands and forearms along with toilets than it has met its duties under the workplace regulations. And those are not required to be single sex.

Where is the wtaf emoji?! Where is the bold bit from? Is she rewriting standards or legislation?

Edit: to my mind, both

I think you're right - the provision for washing hands, forearms and face only is not related to toilets, it's for workplaces where workers get dirty, or where food prep etc is taking place..
There's no need for them to be sex-segregated, as they only involve washing normally exposed parts of the body.

Here's another bit of dubious legal argument from the judgment:

237. If a separate toilet block is provided for men and women, Reg 20(2) does not require separate toilet cubicles for each user. If a separate toilet block is not provided, Reg 20(2) requires each convenience to be in a separate lockable room. The relevant ACOP states: “196. Facilities should be arranged to ensure adequate privacy for the user. In particular: each toilet should be in a separate room or cubicle, with a door that can be secured from the inside”. Accordingly, cubicles with gaps (which may allow for more hygienic cleaning), may, depending upon the circumstances, provide adequate bodily privacy for each user and moral propriety between the sexes if no urinals are provided.

So: as long as you don't have urinals, shared-sex toilets with cubicles provide adequate privacy and propriety. WTAF?

BTW the ACOP is the Approved Code of Practice - an analogue of the EHRC's CoP but for the Workplace Regulations. It doesn't particularly address the issue of single sex toilets.
www.hse.gov.uk/pubns/priced/l24.pdf

I too understood that toilets had to have same sex handwashing facilities. I was in a public loo the other day and a woman came out to wash her hands and mooncup before returning to her cubicle. I was next waiting and just stayed put, for which she thanked me (a bit embarassed). So I'm no legal expert but no way can women be expected to do that in front of male strangers or work colleagues . M aybe the appeal will have to address issues like that which only affect women.

chewing and typing! They are included I think. The lav on old diagrams used to mean the sink area.

Sanitary convenience means the toilet bowl, cistern etc. Handwashing facilities are not sanitary conveniences.

Single occupancy toilets must have a basin inside so no need for sinks outside.

No, they don't. Not until Document T came into force.

Prior to document T, you can have a row of single occupancy full-height-door toilets, and a row of shared handbasins immediately outside.

There was a thread in AIBU a couple of months ago complaining about this arrangements; but it's not unlawful.

But I'm struggling to see how it works.

Single sex loos must have washing facilities immediately adjacent. So in the room with the loos.

Single occupancy toilets must have a basin inside so no need for sinks outside.

When would you have mixed sex washing facilities with single sex loos?

I appreciate schools have them, but pupils are not covered by the workplace regulations in the same way. This was a workplace issue.

That's one possible interpretation but are washing facilities associated with toilets provided for washing hands, forearms and face only or are they provided as part of the sanitary conveniences.

Hand washing facilities in a kitchen would certainly fall within the exception but I'm not convinced that handwashing for toilets would.

If the basins are provided in women's toilets then you don't need to argue it; they're already single sex.

If you look at any basins provided in mixed-sex hand washing facilities you'd have to point to them and get a judge to agree they're not provided for washing only hands forearms and face. It's pretty obvious that small basins aren't suitable for washing anything else, so you'd have a hard time saying they were provided for any purpose that means (3) wouldn't apply.

EDIT: what you want to argue is that toilets need to be accompanied by facilities for washing more than just hands, forearms and face (therefore have to be separated.) On the basis of long-established practice across the country, I don't think you'd get a judge to agree.

Cooking now. Will come back later.

I think also that the requirement for washing facilities to be provided in the immediate vicinity of the toilets, and that the toilets must be provided separately, is an argument for single sex washing facilities in the single sex toilets.

It's like she hasn't looked at the totality of the regulations.

That’s what they have in many schools.

It’s inclusive and a social justice issue.
See Stalledonline. They are influential in this country and the directors work was quoted in the consultation for document T.

Except custom and practice has meant that the exemption is rarely applied. And I could successfully argue that basins provided in women's toilets are not just for hands, forearms and faces.

Washing facilities in general include baths and showers, which of course have to be single sex. But for handwashing facilities the exemption in (3) applies, so they can be mixed sex:

(3) Paragraph (2)(h) shall not apply to facilities which are provided for washing hands, forearms and face only.

Well she's absolutely wrong because Regulation 21 says washing facilities must be provided separately for men and women. See my previous post.

No. And it's a building regulation, so applies to anyone building new toilets or renovating old ones (such that a building permit is required.) - therefore landlords, property managers, construction contractors etc. It's not a duty on employers per se, like the Workplace Regulations. It's likely to have much the same effect, in time, but it definitely doesn't require anyone to comply retrospectively.

Regulation 21 requires washing facilities to be single sex or in single user room

(2) Without prejudice to the generality of paragraph (1), washing facilities shall not be suitable unless—

(h)separate facilities are provided for men and women, except where and so far as they are provided in a room the door of which is capable of being secured from inside and the facilities in each such room are intended to be used by only one person at a time.

(3) Paragraph (2)(h) shall not apply to facilities which are provided for washing hands, forearms and face only.

Regation 21 from the 1992 Workplace Regulations: https://www.legislation.gov.uk/uksi/1992/3004/regulation/21

Washing facilities
21.—(1) Suitable and sufficient washing facilities, including showers if required by the nature of the work or for health reasons, shall be provided at readily accessible places.

2. Without prejudice to the generality of paragraph (1), washing facilities shall not be suitable unless—

(a)they are provided in the immediate vicinity of every sanitary convenience, whether or not provided elsewhere as well;

(b)they are provided in the vicinity of any changing rooms required by these Regulations, whether or not provided elsewhere as well;

(c)they include a supply of clean hot and cold, or warm, water (which shall be running water so far as is practicable);

(d)they include soap or other suitable means of cleaning;

(e)they include towels or other suitable means of drying;

(f)the rooms containing them are sufficiently ventilated and lit;

(g)they and the rooms containing them are kept in a clean and orderly condition; and

(h)separate facilities are provided for men and women, except where and so far as they are provided in a room the door of which is capable of being secured from inside and the facilities in each such room are intended to be used by only one person at a time.

3. Paragraph (2)(h) shall not apply to facilities which are provided for washing hands, forearms and face only.

My emphasis.

I will have a look at my stuff. Unfortunately, bs6465 is £££ but I have got relevant sections and I will look at other legislation.

It a mess because, as others and myself have said, this scenario was unthinkable when legislation and regs were being made. It wouldn’t have crossed people’s minds a woman would have to go to court and a judge would rule that a man’s preference was greater than her needs to use the ladies loo.

Is Document T retrospective though? Most building regs aren't.

It is shocking they would still be permitted.

They're not any more. Document T (I think) requires single-sex washing facilities either in the same toilet room or a separate but still single-sex room.