Breast feeding at work part 1

An employment tribunal has ruled on a case involving breast-feeding employees and indirect sex discrimination. Whilst this decision is not binding on future tribunals, it shows how an employer’s failure to make adjustments for employees who wish to breastfeed can lead to a costly legal action and damage to their reputation.

What happened?

The case centred around two female members of EasyJet’s cabin crew. Following their return from maternity leave, and knowing that they would not be permitted to express breast milk during a flight, they consulted their GPs and made a request to EasyJet to work shorter bespoke eight-hour rosters to enable them to express before and after the shift. However, EasyJet said no, citing health and safety reasons. They said that an unforeseen flight delay might mean that the women could end up working more than eight hours.

In response, EasyJet offered unrestricted duty days of twelve hours. This was not an option for the employees since the lengths of the shifts offered would have increased the risk of mastitis.

This offer was made without a risk assessment being made, despite EasyJet having a dedicated health and safety team. EasyJet had also ignored advice from four different GPs and failed to arrange an occupational health assessment for the two employees.

Instead, managers admitted to Googling ‘breast feeding risks’ on the internet before coming up with their solution.

After a number of grievances, EasyJet agreed that the women could carry out ground duties for six months, allowing them to breastfeed in accordance with the medical guidance they had been given. However, the employer said that any extension beyond the six-month period would not be agreed since in their view, the women’s wish to continue breastfeeding would be a personal choice.

It was argued on behalf of the employees that because EasyJet had failed to come up with a solution beyond the six-month limit they had imposed, they were effectively making the decision for their employees.

What the tribunal decided

In EasyJet’s defence, they said that both the employees had taken 12 months’ maternity leave and the fact that they were still breastfeeding their children when they returned to work was ‘slightly unusual’. In order to plan flights and staffing arrangements, it needed to know how long the women intended to breastfeed; it had asked them on several occasions but no firm answer had been given.

In the light of the lack of information, EasyJet argued that the arrangements it was being asked to approve could continue for many more months, if not years.

The tribunal was not convinced by this argument and did not take the line that the employer’s needs outweighed the disadvantage that the employees had suffered.

It was ruled that EasyJet had failed to accommodate breastfeeding requirements and this amounted to indirect sex discrimination. They had presented a number of ‘solutions’ that were in reality unworkable, each of which involved the claimants suffering a significant detriment.

The tribunal judge said that there was no reason to prevent the implementation of bespoke rosters, as had been initially requested by the employees.

The correct approach for the employer to take, under the Employment Rights Act, would have been to find the women alternative duties, suspend them on full pay or reduce their hours.

The tribunal awarded the claimants compensation for injury to feeling of £8,750 plus interest and £12,500 plus interest respectively.

What does the law say?

Under Regulation 25(4) and 25(5) of the Workplace (Health, Safety and Welfare) Regulations 1992, employers must provide suitable facilities for breastfeeding mothers to rest (including facilities to lie down) and provide adequate rest and meal breaks. The definition of ‘suitable facilities’ does not include toilets.

An employer does not have to conduct a specific risk assessment for an employee who has decided to breastfeed at work. However, it would be good practice for them to do so, as it would inform them about any additional action they may need to take.

A woman has no statutory right to have time off work or take extra breaks for breastfeeding; nor is there a requirement on employers to provide facilities to breastfeed or express milk.

There are specific health and safety protections which apply to breastfeeding women and employers could need to change working hours to avoid risks.

Next month, we’ll take a look at steps that employers can take to ensure that they address breastfeeding issues and make life comfortable for nursing employees.