Case update (3): Sex discrimination – Breastfeeding at work

work-lifeSummary:  Did an airline’s refusal to allow certain flexible working arrangements for breastfeeding amount to indirect sex discrimination?

Yes, says the Tribunal in McFarlane and another v EasyJet Airline Company Ltd.

Background:  There is no statutory right to time off for breastfeeding.  This is 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).

Nevertheless, breastfeeding mothers do have other legal protections. They include:

  • The right not to suffer indirect discrimination because of sex;
  • The right to be offered temporary suitable alternative work; and
  • The right to paid suspension.

An employer can justify indirect sex discrimination if the alleged discriminatory practice is a proportionate means of achieving a legitimate aim.

Also specific health and safety protections apply to breastfeeding women under health and safety regulations (and the Health and Safety Executive guidance on new and expectant mothers). These require employers 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.

Guidance available to employers on breastfeeding includes the EHRC Code of Practice on Employment, the ACAS guide on accommodating breastfeeding in the workplace (available here) and the HSE guidance on new and expectant mothers (available here).

Facts:   Two female employees were employed by EasyJet as cabin crew.  On their respective returns from maternity leave they asked EasyJet if they could work shorter eight hour shifts so that they could express their milk either side of the shift. The request was based on their GPs’ recommendations.

EasyJet refused their request on the grounds of health and safety on the basis of the employees’ own safety, due to the risk of unforeseen flight delays which could result in them potentially working more than eight hours. Instead EasyJet offered unrestricted duty days of twelve hours, an option which would have significantly increased the risk of mastitis (a condition which causes painful inflammation of breast tissue).

EasyJet eventually agreed that the employees could carry out ground duties for six months, which would allow them to breastfeed in accordance with medical guidance.  However, EasyJet stated that any extension to this time period would be expressly rejected as the women’s wish to continue breastfeeding was ‘a choice’.

The employees brought Tribunal claims for sex discrimination.

The Tribunal found that EasyJet failed to carry out their own risk assessment of the situation, ignored the advice of four different GPs and failed to arrange for the employees to be assessed by occupational health.  The Tribunal held that EasyJet’s failure to accommodate the employees’ breastfeeding requirements amounted to indirect sex discrimination, stating that the correct approach would have been to find the employees alternative duties within the organisation, suspend them on full pay or reduce their hours.

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

Implications:

This case is only a Tribunal level decision and therefore does not need to be followed by other Tribunals.  However, it does highlight many of the legal issues around breastfeeding and recommended steps include the following:

  • if an employee requests flexibility to allow breastfeeding, discuss with her what can reasonably be done to accommodate this;
  • take into account the guidance on breastfeeding which is available (as set out under Background above). The Tribunal took this guidance into account in this case;
  • do not ignore any relevant advice from doctors or occupational health practitioners;
  • consider allowing adjustments to working conditions or hours so that an employee can continue breastfeeding e.g. reducing hours; additional breaks to feed or express milk; avoiding overnight stays away from home if this would interfere with breastfeeding;
  • if you intend to refuse a request, ensure you have good business reasons and that your refusal is a proportionate way of meeting those business needs. Explain these to the individual and have sound evidence to back them up. Keep a record of the request and decision;
  • take steps to comply with health and safety law in this area including:
    • Consider the risk to a breastfeeding mother as part of your general risk assessment:  If you employ women of child-bearing age and the work could involve risk to the health and safety of a breastfeeding mother or her baby, you should assess these risks as part of your general risk assessment;
    • Notification: When an employee notifies you that she is breastfeeding, check your general risk assessment and consider if any risks are relevant to that individual;
    • Individual risk assessment: You are not specifically obliged to carry out a new individual risk assessment for each employee but it may be appropriate in deciding what action to take. Consult with the individual to ensure your assessment is sufficient;
    • Take action to address risk, such as:
      • Temporarily alter the woman’s working conditions (e.g. physical conditions or performance targets) or hours of work (e.g. more frequent breaks, altered shift patterns, home-working);
      • If that is not reasonable, or would not avoid the risk, offer her available suitable alternative work;
      • If this is not available, or the employee reasonably refuses it, suspend her for as long as necessary to avoid the risk. This suspension will be paid unless she has unreasonably refused your offer of suitable alternative work; and
    • Seek an employee’s consent to changes you are making.

Overall, although it is likely to be rare that an employer will face this issue, it nevertheless remains an important issue due to the media and high profile attention such issues attract and the sensitive issues involved.