Author: Lailaa Bettis
It can be easy to focus purely on the practical arrangements for employees returning from maternity leave: What work will they be undertaking? Is their desk and computer usable? Are they up to date on any changes within the business? Health and safety issues can often be forgotten about, including those in respect of breastfeeding. Increasingly, employers are developing their practices to take account of their breastfeeding employees. Goldman Sachs for example, made the news earlier this year when it recently confirmed it has offered to pay for its breastfeeding staff in the U.S. and U.K. to use a courier service to get their expressed milk back to their babies if travelling for work.
So what are the key obligations that employers need to be aware of?
- Risk assessment – Health and safety regulations require all employers to carry out a risk assessment for its breastfeeding (and pregnant) workers. Where an employer has identified risks it does not have any specific obligation to take action to avoid those risks until it has been notified in writing that an employee is pregnant, has given birth within the previous six months or is breastfeeding. Breastfeeding includes expressing milk.
- Facilities – Employers are required to provide suitable facilities for breastfeeding mothers to rest (including facilities to lie down) and to provide adequate rest and meal breaks. The toilets are not “suitable facilities” according to regulations.
- Time off? There is no statutory right to time off work for breastfeeding. There are also no laws which require the provision of facilities for breastfeeding itself. The HSE guidance however, which reflects EC guidance, recommends that other facilities (such as a private, clean environment, other than the toilets, for expressing milk and a fridge for storing it) should be provided.
- Hazards – The Equality Human Rights Commission’s Statutory Code of Practice (the EHRC Code) highlights the need for employers to remember their duty of care to remove any hazards for breastfeeding employees and recommends that employers try to accommodate employees who wish to take time off to breastfeed.
What are the consequences of non-compliance?
Failure to undertake a risk assessment in the case of a breastfeeding mother may be an act of sex discrimination.
If an employer refuses to allow a woman the flexibility she may need to breastfeed or express milk, this may be indirectly discriminatory unless the employer can objectively justify its policy. In a 2015 case against EasyJet Airline Company, an employment tribunal upheld a complaint of indirect discrimination arising from an airline’s refusal to allow certain flexible working arrangements for breastfeeding, as well as complaints for failure to pay remuneration for suspension on maternity grounds and failure to offer suitable alternative work.
Refusal of a flexible working request to work part time to facilitate breastfeeding may amount to indirect sex discrimination. The EHRC Code gives an example of an employer refusing a request from a woman to return from maternity leave part-time to enable her to continue breastfeeding her child who suffers from eczema. Having told her employer that her GP had advised that continued breastfeeding would benefit her child’s medical condition, unless it can be objectively justified, a refusal by her employer of her request is likely to be indirect sex discrimination.
There is now a question mark over whether breastfeeding mothers could bring a direct sex discrimination claim for less favourable treatment because she is breastfeeding.
The Equality Act 2010 amended previous laws to provide that, for the purposes of direct discrimination, less favourable treatment of a woman “includes less favourable treatment of her because she is breastfeeding”. However, that provision is expressed not to apply to discrimination at work. It was considered that a breastfeeding woman who suffered a detriment at work would need to bring a claim for indirect discrimination. However, this was called into question by a 2017 ECJ decision (Ramos v Servicio Galego de Saude). The ECJ held that a failure to undertake a proper risk assessment for a breastfeeding mother at work would amount to direct discrimination under the Equal Treatment Directive.
Practical tips for employers
- Ensure flexible working requests on grounds of breastfeeding are handled fairly and reasonably. Refusal will need to be justified on the grounds that it is proportionate means of achieving a legitimate aim to minimise the risk of discrimination claims.
- Once a risk assessment has been carried out for its pregnant workers, the duty is ongoing – it should be revisited after she has returned from maternity leave and informs them she is breastfeeding; the risks may well be different in each circumstance.
- The risk assessment must take into account the worker’s individual circumstances. It will not be sufficient for an employer to carry out a risk assessment in respect of just the role itself.
If you require any support or guidance in respect of any of these issues, please do get in touch with a member of our team.