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Employee gym shifts for women and men (TAS 52/2015, issued on 9 November 2015)

The Ombudsman for Equality was asked to determine whether the shift schedule for the employee gym of a certain employer was compliant with the Equality Act, as there were more shifts in the gym reserved for women than for men. The complainant felt that the practice favoured female employees over male employees. The employer justified the practice, for example, with the explanation that a majority of the staff is female.

As stated in the Equality Act: "The action of an employer shall be deemed to constitute discrimination prohibited under this Act if the employer (...) manages the work, distributes tasks or otherwise arranges the working conditions in such away that one or more employees find themselves in a less favourable position than other employees on the basis of gender..." The exercise, shower, sauna and dressing facilities provided by an employer to its employees can also be considered an issue related to the arrangement of working conditions. This may be a question of a benefit with monetary value that is comparable to salary.

The employer may claim that it is entitled to restrict men's access to the gym during the women's shift for reasons of modesty. However, the regulation of workplace discrimination specified in the Equality Act differs from the regulation of the availability and offering of generally available goods and services. In offering the benefit to its employees, the employer cannot deviate from the principle of gender equality in the same way.

In her statement, the Ombudsman for Equality states that the employer may not assign different status to its employees on the basis of gender when arranging working conditions or benefits. The gym facility provided by the employer to its employees can be considered a benefit offered by the employer. The Ombudsman for Equality felt that the shift arrangement, where the male employees have a less favourable position than the female employees, was problematic from an Equality Act standpoint.

The Ombudsman for Equality requested that the employer ensure that it would refrain from favouring one gender of employees over another when arranging working conditions and report the measures taken to rectify the situation.