Sex Discrimination, Harassment & Female Toilets - an important Employment law case

Ms K Miller v Earl Shilton Town Council - 2602588/18

Earl Shilton Town Council v Ms K Miller - EA-2021-000196-LA 

 

In 2020, an Employment Tribunal heard that Ms Miller, an office clerk at at local town council, worked in a building that did not have female toilet facilities she could access when needed.

Ms Miller won her case for harassment, discrimination, and victimisation on the following grounds:

• Did the conduct of Mark Jackson constitute sex discrimination? Yes. The Claimant was employed from 30 August 2016 as an Office Clerk. Mr Jackson was line manager for the Claimant and at the relevant times employed as Town Clerk, in effect the main executive officer of the Council who is expected to ensure that its instructions are implemented and that its resources and employees are effectively managed.

• The Respondent ignored Ms Miller’s claim for promotion after she successfully completed the CiLCA qualification in February 2018, although she did receive a pay rise

• The Respondent did not respond to Ms Miller’s claim that Mr Jackson was very dismissive of, and having a verbally aggressive approach towards, female members of staff. Miller first raised concerns about Mr Jackson with Mr Phelps and another Councillor in January 2018, but there was no meaningful response.

• The Respondent on 15 Jan 2018, Mr Jackson told Ms Miller to “go away”. He said he was “too busy now, you will have to go away”. The Claimant’s case is that she could not imagine Mr Jackson speaking to a male member of staff in the same way.

• Mr Jackson’s use of the phrase “gibbering wreck” was scrutinised following Miller’s attendance at an external funeral (part of her job role was to attend specific funerals) – saying “I don’t want you coming back a gibbering wreck”.

• Use of foul language in her role by Mr Jackson “I don’t give a ****** **** what you have been told, a solicitor cannot be a deed holder”.

It was also found the Ms Miller was discriminated against because of her sex in the provision of adequate toilet facilities in the workplace. The only facility for women was a single cubicle and could only be accessed by passing a urinal. Women would not always know if a man was using the urinal before entering the room. It was not until June 2018 that a lock was arranged to be fitted to the external door of the men’s toilets for a woman to use if she was using the cubicle, as well as a sanitary bin. The bin was only emptied if the Ms Miller requested it. Even though Miller had a gynaecological condition there was no soap and no hot water in the toilet. She was expected to place a sign on the entrance door when the toilet was “In use by a female” but it did not always stay in place.

Further it was found that Ms Miller was victimised following her dismissal. In June 2018 Ms Miller read Councillor meeting minutes without authorisation, thereby discovering conversations had taken place between councillors about the potential for Miller to be dismissed, Miller believed this was because she had brought the sex discrimination claim and she had therefore been victimised.

Outcome:

In October 2020 - the unanimous decision of the Tribunal was that:

• In contravention of section 40 of the Equality Act 2010: the Respondent harassed the Claimant by the conduct of Mark Jackson on 16 January, 8 May and 15 May 2018.

• In contravention of section 39 of the Act, the Respondent discriminated against the Claimant because of her sex in relation to the provision of toilet facilities from August 2016 until 18 June 2018. However direct sex discrimination in relation to Mr Jackson’s conduct was dismissed.

• In further contravention of section 39 of the Act, the Respondent victimised the Claimant by dismissing her.

The Council appealed and the Employment Appeal Tribunal dismissed the appeal on 31st January 2023.

The employment tribunal found that:

“Any reasonable person could reasonably consider not having immediate direct access to toilet facilities, the risk of seeing a person of the opposite sex using toilet facilities… and not having a bin in which to dispose of sanitary products as a series of detriments.”

“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 … 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."

Sejal Patel, Associate Solicitor, Employment team, Lawson-West Solicitors, Leicester office 

Associate Solicitor, Sejal Patel comments, “At the outset, this appeared to be a straightforward case of sex discrimination, considering the provision of toilet facilities and whether female staff were treated less favourably than males when using the same facilities. But as the case evidence unfolded, the arguments widened and then this complex case centred on the correct and relevant evidence needed to support the Claimant’s case with extensive disputes from both sides about documents to be admitted. This became a changing and challenging journey over a number of years for my Client but with the support from Counsel, Ms Sinead King we were able to achieve a successful outcome in this case."

The judgment doesn’t set a precedent but seeing the media coverage of this case is rewarding and we are likely to see more toilet-based sex discrimination claims.

Useful Links:

Employment Tribunal decision: https://www.gov.uk/employment-tribunal-decisions/ms-k-miller-v-earl-shilton-town-council-2602588-2018

Employment Appeal Tribunal decision: https://www.gov.uk/employment-appeal-tribunal-decisions/earl-shilton-town-council-v-ms-k-miller-2023-eat-5

BBC national news coverage 8th Feb 2023 - Council's gender-neutral toilets discriminated against female clerk - BBC News https://www.bbc.co.uk/news/uk-england-leicestershire-64559184

Daily Mail 3rd Feb 2023 https://www.dailymail.co.uk/news/article-11708131/amp/Gender-neutral-toilet-favourable-men-says-judge.html

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