Extremely useful women's toilets decision just released by the EAT

[User76765]

"Direct Sex Discrimination

Was the Respondent's provision of inadequate toilet facilities for women inherently less favourable treatment that therefore subjected the Claimant to direct sex discrimination?

Yes, held the EAT in Earl Shilton Town Council v Miller.

The Respondent operated from a church building that also hosted a play group. The women’s toilets were in part of the building used by the playgroup and were used by those attending the group. Female employees had to attract the attention of playgroup staff to ensure the toilets were not occupied by children. This arrangement made them unsuitable for urgent use. Female employees were offered the use of a toilet cubicle in the male toilets but access required passing the urinals. There was also the risk of men entering the toilet and no sanitary bins.

The Respondent argued:

1. that the less favourable treatment could not be because of sex where the toilet arrangements resulted from safeguarding requirements and;
2. that there was no less favourable treatment given the risk a man faced of being observed when using the urinal was equivalent to that of a woman seeing the man use the urinal.

The EAT dismissed the appeal finding that a women being at risk of seeing a man using the urinal is not the same as the risk of a man seeing another man using the urinal. Applying ‘robust common sense’ if one starts by considering the nature of the treatment, the Claimant was not provided with toilet facilities that were adequate to her needs, because of the risk of coming across a man using the urinal and the lack of a sanitary provisions. That treatment was less favourable than that accorded to men.

The Respondent did not argue the second limb of the appeal in the tribunal. However, it was observed that the fact that a man might also be able to assert direct sex discrimination would not be fatal to the Claimant’s claim – just as it may not be fatal if another woman did not object to the arrangements."

*phrase) in Maya's case

It’s binding on employment tribunals. The eat follows its own judgments too and won’t depart from them other than in exceptional circumstances. It’s persuasive but not binding re the high court.

I haven’t read the full judgment but he may also have been restricted by the way in which the case was argued.

He certainly isn’t an idiot.

Just thinking out loud, @User76765, this could be applied to spas as well but it wouldn't apply to all-cubicle mixed sex toilets, would it? Since no body parts would necessarily be on display. Assuming I have understood the judge's reasoning correctly.

No it wont apply to mixed sex toilets. The govt is committed to giving people a choice wherever possible;
single sex (male and female)
accessible/single use (self contained, preferably with an adult changing table)
mixed sex/gender neutral.

Which provides equality of access and inclusion for everyone and is the best way forward.

Although you will have to deal with some male people absolutely fixed on using the female only facilities to meet their own needs regardless of impact on others.

Which is a behaviour problem and not an inclusion problem.

I remember when Oscar Pistorius was first found not guilty of murder, the judge in that case pretty much admitted that she deliberately delivered that verdict so that on appeal he would get a far harsher sentence.

Fair enough, entirely different country, involved a murder, very different to Maya Forstata 😂 but I thought it was common practice for judges to push things through to appeal for various reasons.

Judges don’t normally like being overturned on appeal. As with the rest of us, they don’t like to look like numpties and if your decisions are overturned a lot, you’re less likely to be promoted within the judiciary. I assume he was persuaded by the special lgbt training and book they all apparently had (I can’t remember it’s name)

Equal Treatment Bench Book. It’s not that bad actually. Could have been a lot worse

Yes, that’s the one I meant! Thanks

Whoop whoop!

Good day

Is this only applying for employees?

Will it apply for, say, female users of public buildings?

Well done, they have closed down that playgroup and quite possibly any others that run in church halls.
These things are usually volunteer run for the benefit of parents and children.
Why did they have to check if children were in there?
Surely any child of an age to go to playgroup should be accompanied by a parent in the toilets, Hence no safeguarding issue. Or did they not have a separate disabled toilet desperate women could use? Another blow against community groups using community spaces it seems to me.

As it mentions playgroup staff this might be a playgroup which is more like a short nursery session - there are quite a few around here and for us they fall under the same regulations as normal nurseries.

If the toilets are directly accessible with no exit risks then it would be normal and expected for the children to be able to go to the toilet unaccompanied - these could be children about to start school. It would not be ok to have any other adult using them with a child present.

They shouldn't have had simultaneous lets given the facilities

Alternatively, Tayler listened to the arguments that occurred regarding his verdict and followed the appeal and realised he had called it wrong.

Or he doesn’t see this case as related.

Lots of possibilities.

Thanks for the interesting thread User76765

No, it only applies in employment scenarios. Still great news though.

Thanks. Yes, it is! Really helpful, actually, for employers. And employees. I hope it's widely reported.

How about workplaces with mixed facilities in which make employees habitually don't bother closing the cubicles doors when doing their business? IIRC there were reports to that effect about the home office - female staff ended up having to go across the street to avoid the spectacle.

Or workplace change rooms where the women are disciplined if they complain about a naked TW with penis insisting on using the female facilities?

What about a gender neutral bathroom in which men don't bother to close the stall doors........

Ah I see my question has already been picked up.
A bit off topic, but last night I accidental wandered into the gender neutral men's loos, rather than the gender neutral women's. The men looked horrified and I quickly apologised and backed out.

@Buzzinwithbez
Yes, let's not forget that men need their privacy and dignity, too!

I wonder how this ruling would play out if the females took the NHS to court over being confronted with a male naked from the waist down in the female changing rooms?

www.dailymail.co.uk/news/article-11027471/Trans-NHS-worker-wins-discrimination-case-confronted-underwear.html

That would be a great test case, potentially benefiting lots of NHS employees. The women may not have the stomach for possibly prolonged legal action, but a solicitor's letter citing this decision might achieve the desired result.

I saw today - trumpet - that Waterloo station is getting "gender neutral" toilets. Not reading the (smallest) room