It was discriminatory to force a woman to use a “gender neutral” toilet.
Or so held an employment appeal tribunal recently (Earl Shilton Town Council v Ms K Miller: [2023] EAT 5 (Judgment here)
This is not a particularly novel case, but it does demonstrate how badly an employer can get things wrong particular re sex discrimination.
There was no easy access to use the separate womens toilet, and that toilet was used by non-staff as well. So the town council thought “here’s a great idea – gender neutral toilets”. You can just imagine an old white middle class man running a local town council thinking ‘two-birds one stone; we’re ticking the equalities box here! We will make the men’s toilet gender neutral, so women can use it. And if a woman uses it, she simply puts a sign up on the door to stop men coming in to use the trough urinal. What could go wrong?”🤦🏼 😑
It turns out that there was a separate cubicle in the bathroom. But there’s no lock on the toilet door. There is a separate cubicle though. “She’ll be fine”. No sanitary bin either.
Obviously the Claimant complained and took issue. It took the Council 6 months to get a sanitary bin and a lock for the door.
The court concluded:
“Taken from her perspective the claimant was treated less favourably than men in that she, a woman, was at risk of seeing a man using the urinals.
While a man might see another man use the urinals, the treatment of the claimant, as a woman, was less favourable.
A woman being at risk of seeing a man using the urinals is obviously not the same as the risk of a man seeing another man using the urinals.
Put another way, 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 bin. That treatment was less favourable than that accorded to men.”
Accordingly the EAT concluded there was direct discrimination against the woman claimant.
While this is nothing exciting, it’s a common sense judgement which provides women and the sanctity of women only toilets the rights they deserve.
There’s currently a trend for “gender neutral” toilets and while they can be done well , this case shows how badly they can be actioned.
Key lesson: don’t treat women less favourably to men.