Failure to provide a toilet for the exclusive use of women = sex discrimination

Can an employer ask its female staff to use the men's loos, or a disabled or accessible toilet if they don't have specific facilities for women? That was the issue a tribunal had to determine in Abbas v ISS Facility Services. 

Facts

ISS Facility Services is a global company providing facilities management services and employs around 10,000 people in the UK. Miss Abbas started working at one of its sites in February 2019. She was the only female employee stationed there. 

The onsite toilets consisted of a men's washroom (with two urinals and one cubicle) and a single accessible toilet which had a sanitary bin. Miss Abbas was told that she could use either facility. She used the accessible toilet but complained about the lack of a female only space, lack of a proper lock (which meant that the door could be opened from the outside) and poor hygiene (including urine on the seat from men who also used the facility). Her line manager agreed to install a new lock and put up a sign. But, the only action he took was to print a "ladies" sign and attach it to the door with Sellotape, which Miss Abbas had to keep re-attaching.

Miss Abbas continued to complain about the facilities and after three years, she raised a formal grievance (which also included other allegations about her work environment). She was signed off work due to acute stress for around six months and, when she returned, the accessible toilet had been refurbished and had a secure lock in place. Although she was satisfied with the new arrangement, she alleged that prior to this she had been treated less favourably than male employees who had their own toilets and brought a claim for direct discrimination. 

Decision

The tribunal upheld this part of her claim. It was able to rely on the authoritative EAT decision in Earl Shilton Town Council v Miller [2023] which decided that providing female staff with inadequate toilets compared to men, was less favourable treatment and direct sex discrimination. In that case, women had to use the men's facilities when they could not access the women's (which happened due to the fact that they shared the building with a playgroup and couldn't use the toilets when children were using them). 

The tribunal awarded £15,000 for injuries to Miss Abbas's feelings (which included payment for a separate incident of sexual harassment). 

What does the law say about single sex toilets?

The EAT's decision in Miller has made it clear that tribunals will not accept that adequate toilet facilities are provided where someone may have to interact with someone of the opposite sex.

The Workplace (Health, Safety and Welfare) Regulations 1992 set out statutory obligations to provide separate male and female toilet facilities for employees. The regulations currently allow employers to install gender neutral facilities but only where they are in separate rooms that are lockable from the inside. That may change. In the summer 2023 the government launched a short technical consultation on changing the regulations to ensure that all new non-domestic public and private buildings will have to provide single sex toilets for women and men or a self-contained private toilet. The government hasn't yet published its response. 

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