Benjamin Bestgen: Leave them kids alone – the jurisprudence of bathroom breaks for adults and children
Teachers, like councillors, exercise what little power they have to what little ends they can. While few school pupils nowadays will actively be stopped from using the bathroom when nature calls, many of us have felt the disfavour of a teacher when attempting to do so. Perhaps the law should assist kids and ensure that it is teachers who fear the consequences of breaking the rules – and not children. Benjamin Bestgen takes a look at the law on using the loo.
A friend of mine works professionally with children and teenagers. She recently mentioned that one of her clients, a teenage girl, had her period while at school. The girl repeatedly asked the teacher if she could use the bathroom but for reasons only known to that particular teacher, she was refused and threatened with consequences if she persisted in asking. Predictably, the girl bled through her uniform and if you think her classmates would have been kind and understanding, you’d be wrong. The parents complained to the headmaster and the teacher was spoken to but nothing more.
Remembering my own schooling in Germany, I too had to notify teachers before stepping out during lessons to use the facilities. But this was a mere courtesy – like in a work meeting where you politely excuse yourself if you need to leave for a moment.
My friend assured me that teachers refusing pupils permission to use the restrooms outside scheduled break times is fairly common. Some schools apparently even lock toilets during class times.
I find the idea of needing anyone’s permission before I can relieve myself ridiculous and degrading, so I got curious about what the law says on this issue.
Go when you have to… right?
For professionals working in law, finance, journalism or academia, toilet breaks are likely nothing we think much about. Toilet is a private matter and we go when we have to. But many people aren’t allowed this carefree attitude. Sometimes this is because the workplace doesn’t have bathrooms just down the corridor: a postman or waste collector moves about town for many hours. For others, safety and operational reasons require that a colleague must take over before the worker can go, e.g. pilots, surgeons, certain factory workers or machine operators.
Additionally, many people suffer under conditions where, for example:
- the facilities available are insufficient or in an unusable state (lacking privacy, broken or befouled) and/or don’t have enough toilet paper, soap, dryers/towels and facilities for menstrual products;
- a workplace culture where people feel they cannot readily take toilet breaks due to work demands;
- institutional rules prohibiting the people under that institution’s authority from using lavatories outside scheduled times or only after receiving special permission, such as schools, the military or prisons;
- workers are actively discouraged from using the toilet by employers threatening to dock wages or requiring that workers request permission or log their toilet breaks as “unpaid time”.
The law on toilet breaks for adults
In the UK, s.20 of The Workplace (Health, Safety and Welfare) Regulations 1992 mandates that “[…] suitable and sufficient sanitary conveniences shall be provided at readily accessible places.” It adds that lavatories should be adequately ventilated, lit and in a clean, orderly condition.
However, presently there seems to be no law which specifies clearly employer’s and employees’ rights regarding toilet breaks.
- Employers must allow employees their statutory rest breaks. The UK is miserly here, only mandating 20 minutes of uninterrupted rest for workers working more than 6 hours per day . Employers may of course allow more but that’s a contractual matter between employer and employee.
- An employer could mandate that toilet breaks must be taken during the statutory rest period and restrict all other toilet use, subject to reasonable adjustments for employees who may need them.
- Employers may also monitor the time employees are away from their workstation for breaks.
But just because employers could do these things, there are reasons why they shouldn’t:
- Employers owes duties of care towards their employees, including under health and safety legislation. Being forced to retain bodily waste for several hours may cause damage to bladder or bowels as well as mental distress. Everyone’s body is different – some need the bathroom more often than others. Menstruation may also increase the need for sanitary breaks.
- Employees with certain conditions may not be able to “just hold it”: consider pregnancy, menopause, bowel or prostate issues, bladder infections, incontinence or certain medication which may trigger more restroom visits.
- Having to request toilet breaks, being timed or penalised when using the toilet is distressing and humiliating for employees, affects morale and also damages the employer’s reputation.
- In 2020, a fast food franchise’s manager’s actions to deny workers access to toilet breaks, water or sick leave was not just illegal but also criticised as having “an element of cruelty” (para. 143) by Australian Federal Judge Logan in Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd  FCA 1258. This is not what any decent employer wants to read about themselves.
Naturally, an employer can address when an employee is perceived to take excessive toilet breaks and performance suffers. But such conversations should be handled with care and potentially professional HR and legal advice. Legally and morally, it is far preferable to let people attend to their toilet needs unimpeded and with dignity.
Toilet breaks for school children
Schools are under an obligation to make toilets available for pupils. For Scotland, this is specified in the School Premises (Requirements and Standards) (Scotland) Regulations 1967, for England in the School Premises (England) Regulations 2012.
Akin to the employer-employee situation, there seem to be no laws mandating how schools should treat toilet access for pupils outside of scheduled break times. In the introductory example above, the teacher acted within the law. The result was the public humiliation of a young woman in front of her peers, with the resulting gossip about the incident no doubt also spreading into other classrooms and the teachers’ lounge.
The National Education Union acknowledges that pupils leaving during class to relieve themselves can cause disruption. Some children also abuse toilet breaks for other activities. But most children don’t and some issues, such as a sudden menstrual bleeding, have to be dealt with when they arise, regardless of break times. Furthermore, if pupils are worried about toilet access, they might avoid drinking and/or try to hold their faeces in even when they really need to go. Both is medically harmful. It is likewise humiliating for a child (even more for a teenager) having to raise their hand in class to ask the teacher for permission to use the bathroom. This means having to disclose a private hygienic matter in front of everybody and seek permission from an authority figure with the power to deny them to exercise a fundamental bodily function. Cleanliness issues aside, school toilets are also not always safe or sufficiently private. During breaks, the toilets are available to everybody, including bullies and pranksters who harass their victims in the bathroom, out of sight from teachers. Children afraid of being bullied or uncomfortable using the loo when dozens of others also go there may much prefer to go during lesson time.
The dignity of children
Articles 3 and 28 of the UN Convention on the Rights of the Child include that the best interests of children shall be a primary consideration in all actions concerning children and school discipline shall be exercised in a manner consistent with a child’s human dignity.
Giving teachers authority to control a child’s ability to relieve themselves when they need to is arguably morally perverse and incompatible with the child’s dignity. The class disruption caused by a teacher arguing with a pupil or the pupil getting distressed because they are in discomfort, soiled themselves or bled through their clothes is likely much greater than a pupil excusing themselves to the bathroom and returning quietly and relieved after a few minutes.
UK children’s bladder and bowel health charity ERIC also developed a Toilet Charter for Schools, the first article demanding unrestricted toilet access for pupils as and when they need it. If we sincerely respect children’s privacy, dignity and wish to help them develop bodily autonomy, schools should not have authority to deny any pupil toilet access, at any time.
Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.