Many women are still breastfeeding their babies when they return to work. What facilities can they expect their employers to provide and what legal claims can they bring if their employers don't do so? That was the issue the employment tribunal had to determine in the case of Mellor v The MFG Academies Trust.
Ms Mellor is a teacher. She went on maternity leave in 2018 and was allowed to feed her baby and express milk at work when she returned to work. She became pregnant again and made a flexible working application to reduce her working hours from full-time to part-time, in part to help with breast-feeding (which was approved). She also asked for a room to be made available so that she express milk on her return. Ms Mellor's baby was born in April 2020 and she returned to work in the last week of the summer term (having only taken a few months maternity leave). COVID-19 restrictions were in place and during that time she breastfed her baby in her car at lunchtime.
She returned to work in September 2020 and on her first day back complained that she hadn't been able to express milk because there was no room made available to her. She developed mastitis and phoned in sick the following week. She informed her employers that she believed she had developed the condition (which is common in breastfeeding women) because she was unable to express milk.
When she recovered and returned to work she repeated her request for a room to be made available to her. However, due to staff illness and a failure to pass her request to the correct person, no arrangements were made. Ms Mellor took matters into her own hands and started to use her 25 minute lunch break to express milk either in her car or in the staff toilets. Because expressing milk took up most of this time, she had to eat her lunch at the same time. She used the toilets more often than her car because these offered more privacy. The toilets were often dirty and she felt "disgusted" having to eat and express milk in an unhygienic environment. If she didn't express, her breasts leaked milk which she found embarrassing.
Ms Mellor issued proceedings in the tribunal alleging that she had suffered direct discrimination, indirect discrimination and harassment.
Ms Mellor succeeded with her harassment claim, but lost her other claims.
The tribunal found that Ms Mellor had no choice other than to express in the car or toilets if she wanted to prevent leakage. That created a degrading and humiliating environment for her. And that was because of her sex: expressing milk meant that she had to expose her breasts for around 20 minutes and that process was inherently linked to being a woman.
The practice Ms Mellor complained of was the failure to provide her with suitable facilities to express milk. The tribunal found that this wasn't a 'one off' failure and was repeated on enough occasions to amount to a practice. But, it didn't amount to indirect sex discrimination because only women needed facilities to express milk and there was no comparative disadvantage.
The provisions in the Equality Act which apply to direct discrimination expressly state that in a claim of sex discrimination, less favourable treatment of a woman includes treatment because she is breastfeeding. However, it then says that that provision doesn't apply in the context of work. Did that mean there was no protection against direct discrimination for women because they were breastfeeding?
The tribunal took the view that this exclusion related specifically to the act of breastfeeding. It said that it was credible that Parliament intended to prevent breastfeeding in the workplace - not least because not all workplaces were suitable (it cited factories and industrial environments to evidence this). But, this did not mean that a woman couldn't bring direct discrimination claims if she was treated less favourably because she was a breastfeeding mother.
Ms Mellor's claim wasn't about breastfeeding, it was about the failure of her employer to provide facilities for her to express milk. Was she directly discriminated because of this? The tribunal accepted that a suitable comparator was a man who needed a private room to inject insulin and that he would have been given facilities to do this. But the failure to provide Ms Mellor with a room was due to administrative incompetence rather than her sex and that claim failed.
Even if the tribunal had accepted that Ms Mellor's treatment was due to her sex, she would still have lost this part of her claim. That's because the detriments she relied on (failure to provide facilities) were the same as those in her successful harassment claim. Section 212 of the Equality Act prevents a claimant from succeeding with both claims.
What legal responsibilities do you owe to breastfeeding mothers returning to work?
1. Conduct a risk assessment
The UK’s Management of Health and Safety at Work Regulations 1999 require employers to undertake a specific risk assessment for breastfeeding mothers if the work environment (which includes any processes, working conditions, or any physical, biological or chemical agents they might come into contact with) could involve a risk to them or their babies.
In addition once a woman has notified you that they are still breastfeeding (which bizarrely they need to put in writing), you have a legal obligation to conduct a specific risk assessment where your general assessment has already flagged risks they, or their babies, could be exposed to harm. This involves two stages:
i) Reviewing your general risk assessment and, where appropriate, updating it; and
ii) Addressing any issues that arise from the work they do, or any medical conditions they have.
2. Reduce the risk of harm to the employee or their baby
If you can't ameliorate risk to its lowest level, you must offer the employee a suitable alternative job (at the same rate of pay). And, if you don't have any available, you have to suspend the employee on full pay until the risk is removed. Please note: you can't limit how long someone can continue to breastfeed and some mothers may chose to breastfeed in line with NHS guidelines which state:
'You and your baby can carry on enjoying the benefits of breastfeeding for as long as you like. Breastfeeding into your baby's 2nd year or beyond, alongside other foods, is ideal.'
3. Provide a suitable environment for a breastfeeding mother to rest
The Workplace (Health, Safety and Welfare Regulations) 1992 set out a general requirement for employers to provide suitable facilities for all workers to eat and rest. But there is not any legislation that requires facilities to be provided specifically for breastfeeding or expressing milk (although as we have seen in this case, a failure to provide to do so will expose you to discrimination claims). Nor is there a statutory right for a woman to take time off work for breastfeeding or expressing milk.
The Health and Safety Executive has produced guidance with states that employers must provide ‘suitable facilities' for breastfeeding mothers to rest - including somewhere where they can lie down. The facilities should be hygienic and private so they can express milk if they choose to – toilets are not a suitable place for this - and include somewhere to store their milk, for example a fridge.
Acas have also produced guidance on accommodating breastfeeding employees in the workplace.
We can help
Our partner, Jenny Arrowsmith regularly helps organisations support breastfeeding mothers. Please get in touch if you'd like details of the training she can offer or need specific advice on this issue.
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