UK employers tackle the practicalities of single sex workplace facilities

Single sex workplace facilities remain a live issue for employers, with employment-specific guidance from the Equality and Human Rights Commission still awaited and tribunal litigation continuing to highlight the risks. For large employers, the challenge is increasingly a practical one. Different sites can have very different facilities and HR teams need to be ready for the difficult questions that can arise when employees have competing views and concerns over who should be able to use them.

So what does the law currently require of employers, what are the risks when concerns or complaints arise, and how should HR prepare? We’ll consider that.

Workplace facilities are governed by specific health and safety requirements, including rules around the provision of toilets, washing, and changing facilities. For employers operating across multiple sites, applying those requirements consistently can present practical challenges.

Providing the facilities is only part of the issue. Recent tribunal cases have produced differing outcomes over workplace facilities and further appeals are expected to provide greater clarity. In the meantime, employers need to decide how their own arrangements should work in practice and how concerns over access should be handled.

That makes the role of HR particularly important. These situations can engage competing rights and strongly held beliefs, so organisations need a clear and consistent approach, with managers equipped to deal with concerns fairly rather than having to work out their response once a dispute has already arisen.

Francis Keepfer is an employment lawyer who specialises in equality and discrimination and has been advising a number of clients on single sex workplace facilities, including their policies and how they manage some of the difficult issues that can arise. I asked Francis first about the legal obligations employers need to consider when providing single sex workplace facilities:

Francis Keepfer: “When considering the provision of single-sex facilities, employers need to bear in mind that principally their legal obligations derive from health and safety legislation and not from equality legislation. So it's not from the Equality Act, but it's actually from The Workplace (Health, Safety and Welfare) Regulations 1992, and those regulations say that employers have to provide suitable and sufficient sanitary conveniences, and those conveniences will only be suitable and sufficient if they're provided for men and women. The caveat for that is where each convenience is in a separate room, the door of which is capable of being secured from the inside. So, in other words, an employer has to provide suitable and sufficient conveniences - so toilet facilities, if relevant, showers, washing facilities, changing rooms - for both men and women, but the caveat is that if those facilities are in a separate room, effectively lockable from the inside, so almost like a separate room or a cubicle that is has a floor to ceiling door and can be locked from the inside, then that's the caveat to those regulations. So employers need to make sure they're meeting that first and foremost.”

Joe Glavina: “How should HR handle concerns or complaints from employees about access to workplace facilities, Francis?”

Francis Keepfer: “This is absolutely crucial and a really good question and, in my view, I think this is where a lot of the risk comes from for employers in terms of their policies and in terms of their decisions around what facilities they provide and who they permit to access those facilities. The crucial aspect of this is making sure that in dealing with concerns, complaints, and issues raised around who is allowed to access which facilities, that employer doesn't inadvertently discriminate against either people with gender critical views which, following case law over the last seven or eight years, it is clear that holding gender critical views is a protected characteristic under the protected characteristic of religion and belief, and also making sure that we're not inadvertently discriminating against people who have the protected characteristic of gender reassignment. So, how does an employer avoid discriminating against either of those groups of people? Well, it's not showing any particular bias towards one side or the other without having done an investigation, without having considered all practical implications. It's dealing with concerns fairly, consistently, and making sure that we're taking appropriate sensitivity to the rights of those involved. It's making sure that we're following our policies and making sure that we are, effectively, approaching things in an even-handed manner. The worst thing that an employer can do is having a decision maker who allows their personal views on these sorts of subjects to effectively infect their decision making because that can imply that there is bias, that can imply that these things have been prejudged when what an employer needs to do is they need to consider the views of everybody involved. They need to consider the sensitivities, and they need to consider that this is something that people feel very, very strongly about, and they need to try and come to a decision that is as fair as possible in the circumstances, and that takes into account the views and the sensitivities of everybody involved.”

Joe Glavina: “Clearly, this is a tricky and sensitive area, Francis. I guess you’re busy helping clients navigate this. Can you tell me about some of the work you’re doing?”  

Francis Keepfer: “Yes, we're doing lots of work with clients at the moment to audit their policies and to make sure that their dispute resolution processes are fit for purpose, to make sure that their decision makers are, firstly, informed about the about the relevant legal obligations, particularly the judgment in For Women in Scotland, and particularly the health and safety regulations, to make sure they understand both of those legal obligations, and to make sure that they are making decisions in line with relevant policies, and to make sure they are they are not approaching these situations with bias and not prejudging the situation. So, as I say, we're helping clients with their policies, but also helping them to guide managers who are making these decisions to stick to those policies and to make decisions in a way that is fair and even handed and without prejudging the situation.”

So, the key point for employers is that managing single sex workplace facilities is about more than the facilities themselves. Employers need to understand their legal obligations and make sure concerns or complaints are handled fairly, consistently and without bias.

Francis is currently working with a number of clients on this, helping them review their policies and processes and supporting managers dealing with these difficult issues. If you would like help with this, do contact Francis. His contact details are on screen for you now.