Cleaner's conduct in the shower area of a swimming pool (TAS 371/2013, issued on 9 May 2014)

The office of the Ombudsman for Equality received an enquiry regarding the conduct of a male cleaner in the women's shower area of a public swimming pool. In the complainant's case, she had been reluctant to take off her swimming costume in the shower area in the presence of a male cleaner, and she had gone to the sauna and taken it off there. The cleaner had come into the sauna and told her that customers were not allowed to wear swimming costumes in the sauna.

The Ombudsman was asked whether the action meets the definition of sexual harassment and whether the cleaner had the right to ask people to undress. The complainant questioned how it was even possible to have a cleaner of the opposite gender in the shower area.

The Ombudsman for Equality has received enquiries from both men and women who are not comfortable with the presence of a cleaner or another person of the opposite gender in shower rooms, dressing rooms or WCs. Some have felt that the presence of the opposite gender creates an unsafe atmosphere in shower rooms, dressing rooms or WCs regardless of the conduct of the person.

According to the government proposal on the Equality Act, reasons of modesty may require the hiring of persons of a specific gender for certain duties, for example at a public swimming pool. Reasons of privacy and modesty may also justify differential treatment in the provision and access to goods and services.

For comparison purposes, it is noted that the modesty aspect is taken into account in various areas of legislation, for example in provisions on personal checks carried out by the police or security personnel. Provisions on security personnel require that personal checks be carried out discreetly, in accordance with the principle of minimum interference and with consideration of decency. A security officer carrying out a personal check must be of the same gender as the subject if removal of more than outer garments is required.

The Finnish Swimming Teaching and Lifesaving Federation has published a guidebook (2013) for associations, customers and staff of public swimming pools to promote equal access to swimming pool services. The guidebook is designed to give advice to staff and customers of public swimming pools to ensure that swimming pool services are suitable for all and that they are used in accordance with hygiene requirements. According to the guidebook, public swimming pools have separate dressing rooms, showers and saunas for women and men, but cleaners attending these facilities may be of the opposite gender. The general aim is to organise cleaning services in a way that causes minimal disruption to the customers. The guidebook cites high hygienic standard as one of the essential requirements of public swimming pools from the point of view of swimmers' safety. Regular professional cleaning of the facilities ensures good hygiene levels and, according to the guidebook, cannot be compromised. In order to ensure good hygiene, it is important that customers remove their swimming costumes and shower before going to the pool or the sauna. Customers are not permitted to wear their swimming costumes when entering the sauna, but they can wear a towel instead.

The Ombudsman for Equality found that, in order to respect modesty considerations, public swimming pools should endeavour to place female cleaners in women's facilities and male cleaners in men's facilities during opening hours. However, this kind of task allocation is not always possible, and some public swimming pools may not have both female and male cleaners. In cases where showers, dressing rooms and WCs are cleaned by individuals of the opposite gender, the service provider i.e. the swimming pool has the responsibility to instruct the cleaners on how to carry out their duties in an appropriate manner that takes into account modesty considerations.

In a case such as the one reported to the Ombudsman, the cleaner should exercise judgement and understand that his or her behaviour could be interpreted as sexual harassment or otherwise unacceptable behaviour. When a public swimming pool is notified of such an issue, as a service provider it has the duty under the Equality Act to take action to eliminate harassment and instruct the employee to ensure that the action which was perceived as harassment will not recur.

In the case of public swimming pools, a high standard of hygiene is an acceptable objective as such, and one way to ensure it is to require customers to shower, preferably nude, before entering the sauna or pool. However, this does not justify a practice of having a cleaner or another employee of the opposite gender overseeing the shower rules in the presence of customers in the sauna and shower facilities. Cleaners and other employees of swimming pools cannot have more extensive rights than, for example, those assigned to security officers by the relevant legislation, based on a swimming pool's own practices or guidelines.

Customer feedback submitted directly to the service provider is often a good way of promoting better practices. In the case of swimming pools owned by local authorities, feedback can be sent to the authority's sports service department.