Earl Shilton Town Council operates from a church building. The female toilets were in an area used by a playgroup - if a female employee wished to use the bathroom, they first needed to check that the toilet was not being used by a child.
The Town Council offered the femal e employees the exclusive use of a cubicle in the male toilet, but the female staff would first need to pass the urinals, and could not be guaranteed the that a male employee would not enter the toilet whilst it was in use. There was also no santitary provision in the mens toilet.
In Earl Shilton Town Council v Miller, the EAT found that the Claimant was not provided with adequte toilet facilities, due to the risk of seeing a man using the unirals, and the lack of any sanitary facilities. The EAT also recognised that a man coming across another man using the urinal was not the same as a woman coming across a man using the urinal. The EAT found this to be less faourable treatment than accorded to a man.
It was argued that other female employees had not complained about the arrangements, however this was not determinative. The fact that the claimant felt they were treated less favourbly due to her sex was sufficient.