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Breastfeeding at work
[ch 4: pages 111-113]There is currently no express statutory right to time off work to breastfeed or express milk. However, employers have a statutory obligation to look after their workers’ health, safety and welfare. There are also rights to request flexible working (see Chapter 9, page 323).
A failure to make appropriate provision for breastfeeding at work is likely to amount to sex discrimination (see Chapter 7). An important ECJ ruling, Otero Ramos v Servicio Galego de Saude [2017] CJEU C-531/15, has established that an employer must carry out an adequate breastfeeding risk assessment for any woman returning to work after having a baby who intends to breastfeed. Failing to carry out an adequate (or any) risk assessment and to make appropriate adjustments based on that assessment will constitute direct sex discrimination.
The employer must conduct the risk assessment during pregnancy, breastfeeding or within six months of giving birth, as appropriate, in consultation with the woman. If risks cannot be avoided with reasonable adjustments, the mother must be offered suitable alternative work, or if there is none, a maternity suspension on full pay (see above) while the risk remains.
Risks to a breastfeeding woman can include contact with chemicals and other harmful substances, and physical risks such as mastitis and engorgement. To avoid these risks, employers should consider breaks for breastfeeding or to express milk and/or flexible working, with hours shortened or adjusted to make breastfeeding possible, combined with home-working where appropriate.
The Otero Ramos ruling may help support equality-based arguments by negotiators for other work adjustments during pregnancy, such as travelling during rush hour, where travel exacerbates morning sickness. (See also Chapter 7: Pregnancy and maternity discrimination, page 225).
Unite/easyJet breastfeeding victory
In 2016, two Unite members brought successful claims against airline easyJet, with the support of their union, due to the airline’s failure to accommodate expressing breast milk at work. The claims were for indirect sex discrimination and for breach of the maternity suspension laws. The tribunal heard evidence that easyJet required rostered shifts of over eight continuous hours despite clear medical evidence that failing to give the breastfeeding mothers the chance to express milk for over eight hours raised their risk of mastitis, milk stastis and engorgement.
There was nothing to stop easyJet implementing a bespoke roster for the breastfeeding mothers, ruled the tribunal, rejecting the airline’s claim that its business need for a fully flexible roster outweighed the needs of working mothers who want to continue breastfeeding.
The employees also won their claim for a maternity suspension. The tribunal concluded that the airline failed to carry out individual risk assessments for each woman, despite the material risk to their health and safety. Both should have been offered ground duties, or if none were available, a full pay maternity suspension for as long as they wanted to continue breastfeeding.
Ambacher & McFarlane v easyJet, unreported, Bristol ET, September 2016
HSE guidance for new and expectant mothers reminds employers that they must provide a place for pregnant and breastfeeding mothers to rest, including, where necessary, somewhere to lie down. HSE advises that any facilities provided for expressing and storing milk should be private, healthy and safe and that in particular, “it is not suitable for new mothers to use toilets for expressing milk”.
Under the Agency Workers Regulations 2010, agency workers have the right to share any facilities, such as a crèche or mother and baby room (see Chapter 2).
National charity Maternity Action has produced resources, including a factsheet: Continuing to breastfeed when you return to work, available from their website.
For other sources of rights to support breastfeeding, see Flexible Working, Chapter 9, page 323. Refusing a request to work flexibly can also be sex discrimination (see Chapter 7: Discrimination, pages 252-254).