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Breastfeeding at work
[ch 9: pages 331-332]There is no express statutory right to time off work to breastfeed, but employers have a statutory obligation to look after the health, safety and welfare of their workforce. There are also rights to request flexible working (see page 335).
Failing to make provision for expressing milk – for example by adjusting shift patterns – can amount to indirect sex discrimination (see the Unite/easyJet ruling in the box on page 333). The employer will be acting unlawfully if they cannot provide objective justification for a refusal to make adjustments to accommodate this kind of request.
Ground-breaking tribunal win for Unite members at easyJet
Two Unite members brought successful claims against airline easyJet with the support of the union, due to the airline’s failure to accommodate expressing breast milk at work. The claims were for indirect sex discrimination (see Chapter 7) and for breach of the maternity suspension laws (sections 66 to 70, ERA 96 – see Chapter 4, page 117).
The tribunal accepted evidence that the airline required crew members to fly rostered shifts that could last more than eight continuous hours despite clear medical evidence that failing to give the breastfeeding mothers the chance to express milk for over eight hours raises the risk of mastitis, milk statis and engorgement.
There was nothing to stop easyJet implementing a bespoke roster for the breastfeeding mothers, said the tribunal, rejecting easyJet’s argument that its business need for a fully flexible roster outweighed the needs of working mothers who wanted to continue breastfeeding.
As regards the employees' claim for a maternity suspension, the tribunal concluded that the airline failed to carry out an individual risk assessment for each woman despite the material risk to their health and safety. Both women should have been offered ground duties, and if these were not available, they should have been offered a full pay maternity suspension for as long as they wanted to continue breastfeeding.
When a breastfeeding mother returns to work, the employer should carry out a health and safety risk assessment (regulation 16, Management of Health and Safety at Work Regulations 1999).
If the woman’s current role/hours are not compatible with expressing, the employer should consider changing the woman’s hours to enable expressing in consultation with her and in line with medical advice. If this is not possible, she has the right to be offered an alternative role. If no such role exists and cannot be created, she has the right to be suspended on full pay (sections 66-70, ERA 96) – see Chapter 4, page 117: Maternity Suspension.
HSE guidance for new and expectant mothers reminds employers that they are legally required to provide a place for pregnant and breastfeeding mothers to rest, and that where necessary, this should include somewhere to lie down. There is no statutory duty to provide facilities for expressing and storing milk but the HSE advises that any facilities should be private, healthy and safe and that “it is not suitable for new mothers to use toilets for expressing milk”.
Employers may also need to consider temporary adjustments to working hours for the travel to and from work of pregnant workers.
Under the Agency Workers Regulations 2010, agency workers have the right to use any shared facilities provided by the hirer to its permanent workforce, which may include a crèche or mother and baby room (see Chapter 2).
National charity Maternity Action has produced an information sheet: Continuing to breastfeed when you return to work, available from their website (https://www.maternityaction.org.uk/wp-content/uploads/2015/05/Continuing-to-breastfeed-when-you-return-to-work-2016-1.pdf).
LRD booklets:
Safety, health and equality at work (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1612)
Supporting pregnant workers – a union rep’s guide (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1838)