Following the tribunal decision that two Easyjet employees suffered discrimination when Easyjet refused to limit their working hours to accommodate breastfeeding, here are four things employers should know about breastfeeding and work:
Are breastfeeding employees entitled to flexible working?
The Easyjet employees had medical evidence stating that their shifts should be limited to eight hours so they could continue breastfeeding: not being able to breastfeed or express milk would increase their risk of developing mastitis.
The employees asked for bespoke rosters, with an 8-hour limit on their working day. Easyjet refused.
There is no statutory right to time off work or additional breaks for breastfeeding, but:
- If you refuse flexibility to accommodate breastfeeding, this could amount to sex discrimination unless you can objectively justify your decision.
- Specific health and safety protections apply to breastfeeding women:you may need to alter their working hours to avoid risks - more on this below.
Easyjet tried to justify its refusal but the tribunal said that, in reality, there was nothing to prevent the implementation of bespoke rosters for the claimants.
- If an employee requests flexibility to allow breastfeeding, discuss with her what can reasonably be done to accommodate this. Breastfeeding can be a sensitive issue for some women, and they may be more comfortable having discussions with a female manager.
- Consider allowing adjustments to working conditions or hours so that an employee can continue breastfeeding eg. reducing hours; additional breaks to feed or express milk; avoiding overnight stays away from home if this would interfere with breastfeeding.
- Consider whether health and safety risks necessitate a change in working hours - see below.
- 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.
How long will breastfeeding last?
Easyjet appear to have asked the claimants on several occasions how long they planned to continue breastfeeding.
The tribunal made clear that the length of time for which a mother breastfeeds is a personal decision which only a mother can make having regard to a number of factors including the child's development, and that this is not a precise science.
- An employee may not know how long she will continue breastfeeding and, to a certain extent, this may be beyond her control. Asking her to confirm how long she intends to breastfeed could, in some situations, be discriminatory harassment.
- Imposing a fixed time limit on arrangements to accommodate breastfeeding may be discriminatory, unless you can justify it. However, you can arrange periodic checks on how flexible arrangements are working for you and the employee.
Do we need to provide facilities for breastfeeding?
You must provide suitable facilities for breastfeeding mothers to rest (not the toilets). These should be suitably located and, where necessary, you should provide appropriate facilities to lie down.
There is no statutory requirement to provide facilities for breastfeeding, expressing or storing milk, but failing to do so could lead to a discrimination claim.
The tribunal in Easyjet was 'surprised' that it was suggested to the claimant that she could express milk in the toilet on the plane: even Easyjet's own general risk assessment had made clear that this was unsuitable.
In practice, if you agree to breastfeeding or expressing milk at work:
- Discuss storage options for expressed milk, and allow the employee to use a workplace fridge.
- Provide a private, hygienic, secure area (perhaps an unoccupied office or meeting area that can be discreetly screened). Toilets or sick rooms are unsuitable due to the hygiene risk.
- If in doubt, discuss with the employee what would be most appropriate. If, after careful consideration, you are physically unable to provide an appropriate space, discuss alternative options with the employee.
Breastfeeding: health and safety - what are our obligations?
There are specific health and safety duties relating to women who are breastfeeding. These do not stop six months after birth, but continue as long as the employee is breastfeeding.
- 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 have assessed 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. Review this assessment if you suspect it is no longer valid.
- Individual risk assessment: You are not specifically obliged to carry out a new individual risk assessment but it may be appropriate in deciding what action to take. Consult with the individual to ensure your assessment is sufficient.
- If a risk cannot be removed through other reasonable action, you may need to:
- Temporarily alter the woman's working conditions (eg. physical conditions or performance targets) or hours of work (eg. 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.
- Seek an employee's consent to changes you are making, even if these are for health and safety reasons.
Users of Workbox, the employment team's online HR site,can access detailed information, an example policy and host of template letters to help with the management of pregnant workers and maternity leave in our Pregnancy and Maternity section.