December 8, 2016

Supporting breastfeeding mothers – a guide for employers

Breastfeeding is a hot topic, and the debate over public breastfeeding is well-publicised.

But breastfeeding can also present challenges to the employer, as low-cost airline Easyjet recently found out to its disadvantage when two breastfeeding mothers won a discrimination case brought against them at a recent Tribunal in Bristol.

Read on to see how the Tribunal found evidence of indirect sex discrimination, understand the implications for your equal opportunities policy, and see the seven simple steps you need to take to stay within the law.

Easyjet lose breastfeeding Tribunal in discrimination case

The mothers had asked Easyjet to restrict their shifts to a maximum of eight hours so they had the chance to express milk either side of their shifts.

Easyjet refused, saying they were unable to accommodate the change, and the airline made a series of arguments attempting to justify the refusal, including disruption to colleagues and that flight delays might interfere with the restricted shift times.

Easyjet proposed an alternative, offering the mothers ground duties for a period of six months, but the Tribunal took the view this represented the airline deciding for themselves how long the mothers should continue to breastfeed their babies.

Part of the reason Easyjet lost the case was that it had failed to carry out a risk assessment and had also ignored evidence from the mothers’ GPs.

The Tribunal decided the employer’s refusal was indirect sex discrimination, since fewer women than men (women continuing to be the main carers in our modern society) could comply with the requirement to work Easyjet’s rotational shift patterns.

Indirect sex discrimination arises when an employer applies a practice (this can include policies, terms and conditions and other working practices) which have a greater negative impact on one sex than the other. In principle, a claim can be brought by either men or women.

What can an employer do to accommodate breastfeeding mothers?

While the case above doesn’t set a legal precedent, it does illustrate some of the pitfalls of getting things wrong.

A useful starting point is the Accommodating Breastfeeding Employees in the Workplace guide produced by ACAS. It contains many helpful tips and guidance on handling the issue properly, sensitively and in accordance with the law.

The main issue for breastfeeding mothers is the need to express milk at regular times, which can interfere with their working hours. The guide suggests several measures to help employers accommodate new mothers, including:

  • Allowing additional breaks and rest
  • Identifying a private space that the employee can use to express milk
  • Allowing the employee to store expressed milk in a suitable area such as a fridge

It is important to note that none of the above are strict legal requirements, but examples of some low cost and simple steps which can be taken to help meet the needs of breastfeeding mothers.

Employers should also bear in mind that under the Management of Health and Safety at Work Regulations, they have an obligation to reduce any risks associated with new or expectant mothers at work, so a risk assessment is an important starting point.

Ok. So how do Flexible Working Requests fit in?

The right to request flexible working arrangements has been law for some time, and applies to anyone with more than 26 weeks’ service.

Whilst there is no absolute requirement for an employer to agree to a request, it is important to consider a request objectively and in a reasonable manner, and notify the employee of the outcome in writing within a period of three months.

A refusal may only be on specified grounds, such as burden of additional costs, or an inability to meet customer demand, reorganise work or recruit new staff.

Good practice for handling Flexible Working Requests

Firstly, you should take these two steps:

1. Hold a meeting

2. Notify the employee of the right to appeal against a refusal

A breastfeeding mother is likely to ask for adjustments in the form of a Flexible Working Request and it is important to handle these carefully and in accordance with the law.

Getting the process wrong can give an employee the right to apply to a Tribunal, and a Tribunal has the power to require the employer to reconsider the request or make an award of up to eight weeks’ pay.

Defending a claim of Indirect Sex Discrimination

Indirect sex discrimination claims are complicated and can be expensive.

Defending this type of claim can involve the employer showing that the arrangements are objectively justified.

In addition, any claims can expose the employer to awards for injury to feelings and these awards are unlimited.

Seven simple steps to stay within the law

Following these simple steps should help ensure that you stay on the right side of the law:

1. Have a flexible working policy and communicate this to employees. This might also include a policy on breastfeeding.

2. Consider any requests for flexible working or from breastfeeding mothers objectively, fairly and in accordance with your policy and statutory guidance.

3. Carry out a risk assessment following a request from a breastfeeding mother.

4. Take time to consider what simple and low cost steps you could make to accommodate flexible working needs.

5. Take proper account of any medical evidence available.

6. Bear in mind that such requests involve trying to balance the conflicting needs of the employer/employee and try to achieve an acceptable compromise.

7. Don’t, as in the Easyjet case, make assumptions about how long a mother should continue to breastfeed (that is the mother’s decision!).

And of course you can also contact the Moorepay employment law team to discuss your particular concerns or queries – contact the team or call 0845 619 1743.

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About the author

Tom Muirhead

Tom has represented clients across the UK, both at Employment Tribunal and in the Employment Appeal Tribunal. With a strong background in HR at senior level, Tom is adept at explaining the legal framework to clients in a practical way.