What can constitute direct sex discrimination?

What can constitute direct sex discrimination?

A recent employment tribunal held that not providing adequate toilet facilities for both men and women was direct discrimination. Nazia Kausar, Solicitor in the employment team at Wake Smith looks at the case.

This article includes:

• What is direct sex discrimination?
• Examples of direct sex discrimination
• Legal update
• Your next move?
  
  

What is direct sex discrimination?
Direct sex discrimination is where someone is treated less favourably because of his or her sex than someone of the opposite sex would be treated in the same circumstance.

Examples of direct sex discrimination
Examples of direct sex discrimination include circumstances such as:

• an employer not offering the same training/promotion opportunities to a woman compared to a man
• an employer taking action against a woman for her poor attendance/performance and not applying the same rules to a man.

 

Legal update
In this legal update, the employment tribunal heard whether inadequate toilet facilitates for women amounted to less favourable treatment and therefore direct sex discrimination. In Earl Shilton Town Council v Miller, The Employment Appeal Tribunal held that it was.

In this case, the Respondent is a town Council with volunteer elected councillors, and a few employees. The Respondent operates from a building owned by the Methodist Church.

The building also hosts a playgroup. 

The Respondent’s women’s toilets were used by children who were part of the playgroup.

In order for women to use the toilets, they had to notify the staff of the playgroup to clear the toilets of children for use.

A female employee brought this to the attention of their employer, including the fact that this was not practicable during emergencies and the employer did nothing but permit use of the men’s toilets, which required passing the urinals. This caused a risk to women seeing men using the urinals, including unsuitable facilities due to lack of sanitary bins.

The employer argued at the tribunal that there was no less favourable treatment due to the risk a man faced of being observed when using the urinal was equivalent to that of a woman seeing the man use the urinal.

However, the Employment Appeal Tribunal dismissed this and held that the risk was not the same and that toilet facilities must be adequate to a woman’s needs, therefore making the treatment less favourable.

Your next move?

Professional advice should always be sought before taking any action. For further advice on direct sex discrimination contact Nazia Kausar at Wake Smith Solicitors on 0114 224 2027.

Find out more about employment law services

Published 06/02/2023