To succeed in a claim of direct sex discrimination, claimants have to show that they were treated less favourably than someone of the opposite sex. In Earl Shilton Town Council v Miller, the Employment Appeal Tribunal (EAT) held that the council’s failure to provide a female worker with adequate toilet facilities constituted direct discrimination against her compared to male workers.


Basic facts

Ms Miller worked from 30 August 2016 as a council office clerk in a building which also hosted a playgroup. The men’s toilets were in the part of the building used by the council, while the women’s toilets were in the part of the building used by the playgroup. In order to access them, Ms Miller had to attract the attention of one of the playgroup staff (not always easy) who then had to ensure that no children were using the toilet.

From May 2017, female employees were allowed to use the men’s toilets, which consisted of a single cubicle which could only be accessed by passing a trough urinal. However, there was no lock on the main entrance and the sign saying that the toilet was being used by a woman did not always stay in place. In January 2018, Ms Miller complained that there was no sanitary bin in the men’s toilets. A bin was finally provided in June that year, but she then had to ask the male caretaker to empty it when necessary. An internal lock was also fitted to the external door of the men’s toilets at the same time.

Ms Miller claimed that these arrangements constituted direct sex discrimination, among other things. For its part, the council argued that female employees did not have to use the male toilets and that the failure to provide a bin was an oversight.


Tribunal decision

The tribunal, however, disagreed, holding that not having immediate direct access to toilet facilities, the risk of seeing a man using the toilet facilities, and not having a bin in which to dispose of sanitary products constituted a series of detriments to Ms Miller on a daily basis.

Given that all the men working for the council had immediate access to toilet facilities, it concluded that she had suffered less favourable treatment and that her sex was the reason for the treatment.

The council appealed, arguing firstly that the reason for the toilet arrangements resulted from safeguarding requirements, not Ms Miller’s sex; and secondly, that the risk faced by a man of being observed using the urinal by a woman was equivalent to the risk of a woman seeing a man using the urinal. As such, there was no less favourable treatment.


EAT decision

Dismissing the appeal, the EAT held that as Ms Miller had not been provided with adequate toilet facilities because of her sex, she had been treated less favourably than a man. Although the safeguarding issue explained why she could not use the women’s toilets freely, it did not explain the unsatisfactory arrangements that the council had put in place. It could only go to motive and could not prevent direct discrimination being established. As the EAT pointed out, those arrangements could have been sorted out by putting a lock on the main door to the toilet and requiring men and women to lock it when in use.

As for the equivalence argument, the EAT held that the council had not argued at the employment tribunal that there was no less favourable treatment because a man was at risk of being seen by a woman using the urinals. In any event, the fact that a man might be able to assert direct sex discrimination would not be fatal to Ms Miller’s case.

The EAT also held that the risk of a woman seeing a man using the urinals was not the same as the risk of a man seeing another man using the urinals. As Ms Miller had not been provided with toilet facilities that were adequate to her needs because of the risk of seeing a man using the urinal and the lack of a sanitary bin, the treatment was less favourable than that accorded to men.