A recent employment tribunal case has thrown the spotlight on the issue of how employers should be accommodating new mothers who wish to express milk at work.
Two employees at easyJet, returning to work after maternity leave, requested shifts of a maximum of eight hours on the recommendations of their GPs so that they could express milk at each side of the shift. The request was refused by the airline on health and safety grounds; unforeseen delays could cause the employees to work more than eight hours and this would affect their health and safety. The employer then offered shifts of 12 hours but these were not acceptable to the employees on medical grounds; the length of the shift would increase the risk of common breastfeeding infections. After lodging claims for sex discrimination, the airline further offered an option to take ground duties for a period of six months, with no option to extend, because breastfeeding beyond this time was a ‘choice’ of the employees.
At tribunal, the employment judge ruled the airline had carried out unlawful indirect sex discrimination – they had come up with a number of unworkable solutions which subjected the claimants to a significant detriment on the grounds of their sex. Instead, the employer should have reduced the employees’ hours, found them alternative duties or suspended them on full pay to allow them to express milk or breastfeed. Additionally, the offer of ground duties for six months was deemed to be discriminatory as it attempted to limit the time period in which the mothers could continue to breastfeed.
This ruling is relevant for employers in every sector, but especially those operating shift work.
Current health and safety regulations require employers to provide suitable facilities for breastfeeding mothers to rest, including having the ability to lie down, and to provide adequate rest and meal breaks. Importantly, toilets are not classed as suitable facilities. An example of a private facility could be a private room, with the ability to lock the door, where there are suitable seating and rest facilities. Alongside this, if employers are providing facilities to express milk they may also need to consider providing facilities for storing the expressed milk. It is highly likely that breastfeeding mothers will not want to store milk in the normal lunch fridge and some thought should go in to providing hygienic facilities for this.
Do not risk sex discrimination
There is no express law which requires an employer to give paid breaks to breastfeed or to express milk. However, as highlighted by this case, a complete refusal to consider requests or discuss and accommodate a workable solution could lead to a finding of sex discrimination. Good practice, and actions which will limit the risk of a tribunal claim, is to hold discussions with the employee who is still breastfeeding to determine what can reasonably be done to return them to work. In many circumstances, this will be as simple as providing a secure, private and hygienic room for the employee and storage for the expressed milk.
Depending on the pattern of the work, expressing milk in the workplace may require the employer to consider allowing a short paid break from work in order to express milk. Considerations should assess the impact of the break reasonably against the likely impact it might have on the businesses. Only where this request will have a detrimental impact to the business and cannot be approved, will the employer have to consider more onerous steps such as reducing hours or finding alternative duties. It is important to treat and decide each request individually and fairly and carrying out an assessment on the steps proposed, rather than unilaterally determining it is unworkable.
Not only will accommodating the employee limit the risk of a discrimination claim, but it has other advantageous too. Being open and encouraging discussion around expressing milk, will facilitate the employee’s return to work and encourage employee loyalty within a business that is family friendly.
Kate Palmer is assistant head of advisory on employment law and HR at Peninsula.
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