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Toilet politics in the workplace
Ask any lawyer what they thought of the show Ally McBeal, and it is likely that you will get a fairly negative answer.
It certainly was a great show - full of interesting, dynamic people that seemed to have an awful lot of time to spend at a local bar (not to mention having sordid sexual affairs with each other).
Sadly, however, it doesn't appear to have much connection with reality. Life in the law just isn't as exciting - and, in fact, is a lot more boring (unless, of course, I have somehow just managed to miss out).
One of the things that is often remembered about the show however, is the toilet facilities at the law firm. They were unisex - meaning that both the male and female staff shared the toilet facility.
This is a concept which - at least in most New Zealand workplaces - would be regarded as most unusual. Most of us are used to toilets being single sex – and for that reason tend to feel that our personal space has been inappropriately invaded if a person of the opposite gender joins us while we are in the toilet.
A recent decision of the English Employment Appeal Tribunal illustrates the affront that an employee may take if this social equilibrium is displaced.
The employee in Kettle Produce Limited v Ward (Employment Appeal Tribunal, 8 November 2006) was employed by a horticultural company as an office cleaner. Amongst other things, she was responsible for cleaning the company's toilet facilities.
Ward's manager was a man - Mr Gowans. The tribunal observed that he had a forceful management style.
Gowans formed the view that Ward was "skiving off" work. For reasons that are not entirely clear, he thought that, instead of working, she was in the habit of going into the female toilet facility to waste time.
Keen to expose his theory, he decided - on a particular occasion - to burst into the womens' toilet. Unfortunately however, Gowans did not find Ward "skiving" - but rather discovered that she was simply waiting for a cubicle to become free for her use.
Ward was, perhaps, understandably, upset - both about Gowans' false accusation, and about the rather aggressive way that he had set about to prove it.
Because of a quirk in English law, it was easiest for Ward to bring a claim under discrimination legislation. She claimed that by bursting into the female toilet, Gowans had discriminated against her on the basis of her gender.
This argument was roundly rejected by the tribunal. It found that Gowans was a forthright and opinionated manager who would have similarly burst into the male toilet facility if he had suspected that a male employee was "skiving off". On that basis, there was nothing about Ward's gender that had caused Gowans to behave any differently towards her.
Gowans was, accordingly, not guilty of discrimination - and Ward's claim failed.
But the case may have been decided differently in New Zealand.
In this country, Ward would have been able to argue that Gowans' actions caused her to suffer an unjustified disadvantage. An employer is ordinarily required to appraise an employee of an allegation of misconduct before investigating it: bursting into a toilet is not normally the best first step for an employer to take in investigating alleged time wasting.
In fact, the appropriate way for Gowan to proceed would have been to put an allegation to Ward, and then to investigate it (perhaps even by getting a female colleague to check up on her as she went about her cleaning duties in the toilet facilities).
Further, Ward might succeed in getting an award of compensation for the distress and humiliation that she naturally felt when her Manager burst into the private sanctity of the women's toilet facility. For that matter, it is not inconceivable that the other women in the facility might also have felt similarly aggrieved - and could have brought claims themselves.
Consistent with the English decision, it is unlikely that Ward would have succeeded in a claim under the Human Rights legislation. What happened to her was unacceptable - but not an act of gender discrimination.
In short, irrespective of the circumstances, it is unadvisable for an employer - or, in fact, any employee at work - to enter the toilet facility intended for the opposite gender. Doing so not only upsets an accepted social norm - but potentially leads to allegations of disadvantage and humiliation.
