This article was written by Sarah-Jane Van Den Bergh, Associate
A woman’s right to breastfeed in public places has hit the headlines on a number of occasions but debate as to a breastfeeding woman’s rights at work is less common. However, as Easyjet found in a recent case against it in the employment tribunal, employers cannot safely ignore this issue.
Two of Easyjet’s female cabin crew, who were breastfeeding mothers, requested (at the recommendation of their GPs) to have their shifts reduced to a maximum of 8 hours. This would enable them to express their milk on either side of their shifts (and thereby avoid any medical complications associated with going for long periods without breastfeeding or expressing their milk). Easyjet did not carry out a risk assessment and, ignoring the medical recommendations of the GPs of both women, rejected their request for a bespoke, restricted roster. After receiving complaints, Easyjet offered the women alternative ground duties limited to a fixed period of six months, after which point they suggested breastfeeding becomes a woman's "choice”.
The employment tribunal ruled that Easyjet’s refusal to offer shorter shifts beyond six months amounted to indirect sex discrimination: a refusal to allow the eight-hour shift appears gender neutral, but in practice would disadvantage breastfeeding mothers, who can only be female, hence it has a particularly negative impact on female staff compared to male. Easyjet made a number of arguments attempting to objectively justify the practice, including the possibility of flight delays outside their control which could extend working times, and the disruption to colleagues that bespoke rostering arrangements for breastfeeding staff could cause. However, these arguments were not accepted by the Tribunal, and as a result the refusal to offer shorter shifts was found to constitute indirect discrimination.
Breastfeeding: the legal framework
This case is only a first instance decision and therefore does not set a legal precedent, but it plays out some of the legal issues around breastfeeding. There is little positive legislation in this area, despite several failed attempts to introduce specific rights (including a Breastfeeding Bill (2006); a Breastfeeding Manifesto (2007); and the EU’s proposals for breastfeeding breaks at work (2008). Instead, protection for mothers in this situation derives from a patchwork of other sources:
- as in the Easyjet case, employees who seek but are refused time off work, flexible working arrangements or facilities for breastfeeding itself, may claim indirect sex discrimination;
- the main positive protection at law for breastfeeding mothers in the workplace is under health and safety legislation. Under such regulations (and the Health and Safety Executive guidance on new and expectant mothers), an employer is required to:
- carry out a risk assessment for breastfeeding employees and do what is reasonably practicable to control those risks (where the work is of a kind which could involve risk)
- provide suitable facilities for breastfeeding mothers to rest, including to lie down; and
- provide sufficient rest and meal breaks.
- ACAS has produced guidance on accommodating breastfeeding employees in the workplace with recommendations such as providing a clean and private space in which employees can express milk (and a fridge in which to store it), and considering temporary changes to working arrangements. However, there is no legal requirement for employers to provide facilities for the breastfeeding itself, or for time off work for breastfeeding (although the Equality and Human Rights Commission Code of Practice on Employment emphasises that employers should accommodate women who do wish to do so unless a refusal can be objectively justified).
What does this mean for employers?
In light of the success of the breastfeeding mothers in this Easyjet case, employers should be live to the issues involved when requests are made by breastfeeding mothers, particularly those with atypical working patterns (such as night or compulsory overtime workers), and of course comply with their health and safely duties / ACAS guidance.
Employers should ensure that any requests are carefully considered and that any decision to refuse a request takes into account the negative impact of refusing the request, weighed against the commercial or business reasons for refusing, and that any viable alternative arrangements that might allow them to accommodate the request are genuinely considered. Many employers may face this issue relatively rarely, given government statistics indicate that many mothers will have ceased breastfeeding by the time they return to work. However, the relative rarity of such cases creates particular risks for employers: the tribunal in the Easyjet case was unwilling to accept that bespoke rostering arrangements could not be met for such a small proportion of staff. In any event, employers should be alert to the high-profile and emotive media attention that could result if they face such a claim.