Kelly v Leonardo Employment Tribunal Thread 4

I’ve collapsed in a loo, fortunately in my own house and fell with enough of a bang to wake DH up. On the odd occasion when I’ve felt unwell I’ve always headed to the bathroom or loo, not just because I’ve wanted to vomit, but also to lay on the floor as it’s generally the coldest place in the house.

My brother’s wife went through a spell of collapsing after using the loo, and so did a colleague of my DH. All three of us otherwise generally fit and well, and put down as vasovagal episodes.

I hate talking about what I did in my previous post but I think Judges need to realise why total privacy isn’t safety.

That is why single sex toilets with door gaps are better for boys and men too.
Imagine you let your son go to a supermarket toilet on their own. Which design is safer? A male toilet that’s enclosed, a unisex toilet that’s enclosed or a male toilet that’s got door gaps?

My data shows which design is safer. The fact that we have exceptions for children going into toilets with their parents is right, but we need to also protect the child going into a toilet with any adult. That’s why a reason for more enclosed toilets shouldn’t be so a man can take a female child in there.

If you have two sets of regulations apparently saying different things, the regulations that are more specific to the situation apply. So, for example, the Building Regulations Schedule 1 Part T applies generally to buildings other than dwellings, care homes, schools, nurseries and prison cells. However, the Workplace Regulations apply specifically to places of work and an employer's duty to their employees. So, when looking at toilet provision by an employer, an arrangement that does not comply with the Workplace Regulations is unlawful even if it complies with Building Regulations.

This is the problem with building standards and whether they are enforceable or not. When part of my house fell down, I made sure it was inspected and the work was signed off by a building inspector. Venues aren’t following building standards or getting stuff signed off.

It’s important to know what the BS6465 was at the time of H&S legislation as that’s what legislators were working to. That was single sex toilets with gaps btw!

She had added in 'propriety' hasn't she? It doesn't appear in Reg 20; it only appears in Reg 24 in relation to changing clothes? She's making an appeal to the transient nature of the social construct of propriety that isn't in the Reg she relies on for her argument.
https://www.legislation.gov.uk/uksi/1992/3004/regulation/20
https://www.legislation.gov.uk/uksi/1992/3004/regulation/24

And the face of Paul Eddington's Hacker who above all did not want to be doing anything brave. 🤣

Yes, it seems a bit disingenuous to say you have to provide separate toilets but hey, who knows what happens after that?

By the same logic presumably construction sites have to have hard hat areas, but people don't actually have to wear hard hats in them - they just need to be hard hat areas.

It gets harder if you also find that foxes attack other foxes in fox enclosures, and so that chickens in a chicken-only enclosure are already at a positive advantage to foxes in a fox-only enclosure.

That is certainly a valid argument - that all single-sex spaces are discriminatory against men, because that enables women to be away from the violent sex.

If men have to be in with other men, then it's only fair that women should have to be in with them.

It obviously massively breaches all sane safeguarding and harm minimisation, but it makes sense if looked at from the point of view of discrimination only.

Except that the Equality Act explicitly made all the exceptions permitting that form of discrimination, knowing that "pure" discrimination legislation would have made such safeguarding problematic.

Yes, it seems a bit disingenuous to say you have to provide separate toilets but hey, who knows what happens after that?
It seems obvious that if an employer correctly provides separate toilets, correctly signed as being exclusively for women/men, they should expect their employees to use the facilities accordingly.

They can't police who uses which, but they can and should clearly state that it is company policy that single sex toilets are to be used according to biological sex, not according to individual choice.

A male employee who persists in using the women's toilet would be refusing to comply with a clearly-stated policy. An employee who persisted in parking on a space which was reserved for deliveries would be told to stop, and would face some kind of sanction if they refused to stop, so the same should apply to the man using the women's facilities.

I think all that was expected of employers in the wake of the SC judgement was to assert that they were following the law and their single-sex toilets were separated on the basis of biological sex. Nobody expected them to have a security guard with a swab kit at the door, but it wasn't too much to ask them to assert the rules, and be open to dealing with complaints about persistent cases of breaking the rules.

Not the free-for-all that this judge seems to think is OK.

I don't disagree with you on points of fact, but I don't think anyone put those facts before the tribunal in this case.

The wider point is that where a regulation more or less explicitly permits a particular toilet and washing facility arrangement, it's a tough row to hoe to use a different regulation or law to hold that particular toilet and washing facility arrangement to be unlawful.

Especially when it’s a hidden, sound resistant enclosure for one.

It's easier if you present the court with solid, reliable, well-sourced data on the danger chickens pose to foxes in fox enclosures vs the danger foxes pose to chickens in chicken enclosures.

It gets harder if you also find that foxes attack other foxes in fox enclosures, and so that chickens in a chicken-only enclosure are already at a positive advantage to foxes in a fox-only enclosure.

It falls down on Health and Safety because the designs for a single sex toilet are not the same as the designs for a mixed sex toilet. Although they all have to have doors you can open from the outside, the mixed sex toilets have to be enclosed and completely private. That is worse for women, children and medically vulnerable for safety reasons.

Health for example
https://salus.global/article-show/pathogen-findings-raise-concerns-about-move-to-unisex-hospital-facilities

@MyAmpleSheep ’Also - regulations (up until Document T, I think) allow for single-occupant toilets with mixed-sex hand washing facilities’. I don’t think this is correct. Document T is not applicable in Scotland either which I believe this was in.

If chickens are allowed in the fox enclosure, and foxes are allowed in the chicken enclosure, is it hard to argue that chickens are being disadvantaged more than foxes?

There are some good points in there though. For instance, if men are allowed in the women's, and women are allowed in the men's, then it's hard(er) to argue that women are being disadvantaged more than men are.

Also - regulations (up until Document T, I think) allow for single-occupant toilets with mixed-sex hand washing facilities. An argument that menstrual blood requires women to have single-sex hand washing facilities (and that without which they necessarily will succeed in a claim for unlawful discrimination) would require all such previously-lawful facilities to need rebuilding or refitting. I don't think a court is going to rush to that conclusion.

Would this judges other interests fit the circumstances for recusal for bias

I'm looking at paragraphs 207ff of the judgement. The judge draws attention to the fact that regulation 20 in the Workplace regulation is split in two parts. She says that the requirement to provide separate toilets for men and women is in 20(2) and is absolute. But she says that refers to physical estate only. She says that any requirement to police or manage who uses which toilet falls entirely under 20(1), that requires the broader duty to provide "suitable and sufficient sanitary facilities".

She also says that the Approved Code of Practice from the HSE "does not articulate any requirement to control access to the toilet facilities. Accordingly, any requirement to control access (presumably through effective and enforced policy) must therefore be limited to what is reasonably practicable for the purpose of ensuring health, safety and welfare (including their bodily privacy) and moral propriety."

Then she can use her own opinion of what is both proper, and practicable to argue that trans identifying men can be permitted in the womens' toilets.

Personally I think that when 20(2) requires the employer to "provide" separate toilets for men and women, the extent of that provision goes beyond simply building them and putting stickers on the doors. I don't think it's very hard to see that if an employer has a policy of allowing any men to use the toilets "provided for" women then de-facto they are no longer "provided" for women. I think the extent of provision in 20(2) goes further than bricks-and-mortar and includes policies both written and unwritten. I think the judge's interpretation will fall on appeal.

Agreed.

utterly fucking awful.

No one should need to complain.

Keep your man-self in the man-room.

I think Sir Humphrey would describe it as a "brave decision".

and finding the risk of an assault, however small, as a proportionate means of achieving a legitimate aim is an interesting decision.

I know it's not funny really but that did make me laugh

It is always interesting to me to see how HR and law firms report on tribunal outcomes. This one is being treated quite cautiously, eg: https://www.personneltoday.com/hr/engineer-loses-sex-discrimination-claim-over-toilet-policy/

Jo Mackie, employment partner with law firm Michelmores said: “On the face of it, this does not apply the law after For Women Scotland, and finding the risk of an assault, however small, as a proportionate means of achieving a legitimate aim is an interesting decision. I am sure this will appeal and we will see strong opinions on both sides.”

@prh47bridge Adding my own appreciation. I was very much hoping you would add your always insightful views. 🙏

This.

I am waiting to hear back from the Ministry of Housing, Communities and Local Government about similar. I wrote to them last month saying if you have a case-by-case basis you either make every design mixed sex (even just economically that’s a nightmare) or you keep provision as it is with all the single sex designs being mixed sex without risk assessments/ equality impact assessments and rewrite health and safety legislation, building regulations and standards BS6465 and the Sexual Offences Act (2003) may need refining. The HSE told me to write to the MHCLG and did not give any thoughts.

It would be incredulous if men were using ladies toilets and women were using the gents in 2008 it would not have been discussed in a lengthy report, the governments ‘The Provision of Public Toilets’. There’s lots of sex and a bit of drugs in that. And comments about unisex toilets being worse for women.