![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201805.jpg)
Breastfeeding at work
[ch 4: pages 106-107]There is currently no express statutory right to time off work to breastfeed or express milk, but 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 307).
Failure to make appropriate provision for breastfeeding at work is sex discrimination. An important ECJ ruling, Otero Ramos v Servicio Galego de Saude [2017] CJEU C-531/15, has established that under EU law, an employer must carry out an adequate breastfeeding risk assessment for any woman returning to work after having a baby who intends to breastfeed. Failure to carry out any (or any adequate) risk assessment and to make appropriate adjustments is direct sex discrimination.
The employer must conduct this risk assessment during pregnancy, breastfeeding or within six months of giving birth, in consultation with the woman. If the risks cannot be avoided with reasonable adjustments, the breastfeeding mother must be offered suitable alternative work, or if there is none, a maternity suspension on full pay while the risk remains.
Risks to a breastfeeding woman might 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 ruling in Otero Ramos may also help support equality-based arguments 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 214).
Unite/easyJet breastfeeding victory
In 2016, two Unite members brought successful claims against airline easyJet, supported by the union, due to the airline’s failure to accommodate expressing breast milk at work, for indirect sex discrimination and for breach of the maternity suspension laws. The tribunal heard evidence that easyJet required crew members to fly 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 statis 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 a factsheet: Continuing to breastfeed when you return to work, available from their website (https://www.maternityaction.org.uk/advice-2/mums-dads-scenarios/6-breastfeeding-rights/continuing-to-breastfeed-when-you-return-to-work).
See also Flexible Working, Chapter 9, page 307. Refusing a request to work flexibly can be sex discrimination in appropriate cases (see also Chapter 7: Discrimination, pages 241-242).