Earl Shilton Town Council v K Miller

Provision of ostensibly shared facilities may amount to direct sex discrimination where, viewed realistically and from the claimant’s perspective, women receive facilities inadequate to their needs while men do not. The statutory question is whether treatment is less favourable, not merely whether it is different or formally the same.

Where inferior facilities are provided to women because they are women, discrimination is inherent in the arrangements. The decision-maker’s benign motive, including safeguarding concerns, cannot answer a direct-discrimination claim. A detriment includes treatment which a reasonable worker would or might regard as disadvantageous in all the circumstances.

The claimant, an office clerk employed by a town council, had no immediate access to a women’s toilet for part of her employment. She was later directed to use a men’s facility containing a cubicle and urinal, without an effective means of preventing male entry. It also lacked a sanitary bin until shortly before the end of the relevant period.

The Employment Tribunal found that these arrangements were direct sex discrimination, as well as making other findings not challenged in this appeal. The council appealed the toilet-facilities finding. It contended that the arrangements resulted from child-safeguarding requirements and that the Tribunal had not properly identified less favourable treatment compared with a male comparator.

The central issue was whether inadequate toilet arrangements for a female employee constituted direct sex discrimination under the Equality Act 2010.

1. Appeal dismissed. The Employment Tribunal made no error of law in finding that the claimant was subjected to direct sex discrimination by the inadequate provision of toilet facilities.

2. Direct discrimination must be assessed realistically and with robust common sense. The relevant statutory question is whether the claimant received less favourable treatment, not whether men and women were provided with formally identical or merely different arrangements. The Tribunal was entitled to characterise the treatment as provision of facilities appropriate to the employee’s requirements.

3. From the claimant’s individual perspective, the facilities were inadequate. She lacked immediate access to a suitable toilet; when using the shared men’s facility she risked encountering a man using the urinal; and no sanitary bin was provided for a substantial period. Those arrangements were less favourable than the facilities available to male employees. A possible claim by a man arising from a different risk could not defeat the claimant’s claim. Nor did the fact that another woman was content with the arrangements alter the assessment of the claimant’s detriment.

4. The discrimination was inherent in the treatment. Women were provided with facilities of poorer quality than men because they were women, analogous to the unequal provision considered in the Birmingham and Coll cases. It was therefore unnecessary to investigate the mental processes of a discriminator. The safeguarding rationale went only to motive and could not justify direct discrimination under section 13 of the Equality Act 2010.

5. The Tribunal was also entitled to find detriment. The risk of encountering a man using the urinal, lack of immediate access and lack of suitable sanitary-disposal arrangements were matters a reasonable worker might regard as disadvantageous. Both grounds of appeal failed.

• Employment Appeal Tribunal: appeal dismissed; the finding of direct sex discrimination was upheld.
• Employment Tribunal, Leicester: judgment sent to the parties on 27 November 2020. It upheld the claimant’s complaint of direct sex discrimination concerning toilet facilities and made separate findings of harassment and victimisation.