After installing gender neutral toilets for its employees, the Home Office has inadvertently found itself at odds with some of its female staff. Reports suggest that some staff have felt extremely uncomfortable at being required to use the same bathroom space alongside their male colleagues.
The issue of single-sex facilities at work is one that can arise in the context of an employee who identifies as being of the opposite gender. Traditionally, one approach taken by employers in this situation was to allow employees to use a disabled toilet, rather than the facilities for the gender with which the employee identified. The case of Croft v Royal Mail Group plc [2003] IRLR 592 saw the Court of Appeal endorsing this approach. It found that Royal Mail had not directly discriminated against a transgender employee, who had not started the formal process of transitioning from male to female, by refusing to allow her to use the female facilities.
It is, however, unlikely that this remains good law in light of the fact that we now have the Equality Act 2010 pursuant to which there is no need for medical intervention to have occurred for an individual to rely on the protected characteristic of gender reassignment as a protected characteristic.
Acas guidance also sets out that an individual should be free to choose the most suitable facilities for their gender identity, and states that transgender individuals should not be told to use disabled facilities. An employer acting in the same way as Royal Mail would therefore run the risk that its actions in refusing to allow the employee to use the female facilities would be found to be unreasonable and potentially discriminatory.
It is likely that by installing gender neutral facilities, the Home Office sought to avoid this type of issue arising (whilst also wanting to demonstrate that it is an inclusive employer). The row that has ensued however shows that this can be a tricky area for an employer wanting to achieve amicable employee relations with all of its staff members across the board when it comes to the use of toilet facilities.
If you would like more information please contact the employment team.
