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Case law: Employers should consider changes to accommodate breastfeeding employees

Employers with requests from women for changes to their working hours or duties to allow them to express milk for breastfeeding should consider those requests carefully and take appropriate expert advice, or risk discrimination claims against them, following a landmark legal ruling.

Legal Alert

This update was published in Legal Alert - November 2016

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

Two flight attendants claimed indirect sex discrimination in the Employment Tribunal ('ET') when an airline failed to provide facilities to enable them to breastfeed their babies on their return to work after maternity leave.

It is indirect discrimination if an employer operates a provision, criterion or practice (PCP) which means people with a 'protected characteristic' - such as sex, pregnancy or maternity – are at a significant detriment compared with people who do not have that characteristic. There is a defence if the PCP is a proportionate means of achieving a legitimate aim.

The attendants had asked for shorter shifts of 8 hours to give them time to express milk before and after starting each shift. This was refused on health and safety grounds but they were offered standard duty days of 12 hours – despite medical evidence that 12-hour shifts could increase the risk of mastitis, a painful breast disease. In making its decision, the airline ignored the advice of several GPs, and failed to carry out a risk assessment or commission reports from occupational health professionals.

When the attendants brought their claim, the airline offered them ground duties for six months only, arguing that breastfeeding beyond six months was a 'choice'.

The ET ruled that none of the airline's proposals was workable, and each meant the attendants suffered a significant detriment. However, there was nothing to stop the airline changing their shifts as requested. Limiting them to six months of breastfeeding was also discriminatory. Their claim for indirect sex discrimination was therefore successful.

The ET said that the airline should have reduced their hours, given them alternative duties, or suspended them on full pay.

Employers should note that there are additional rules and guidelines to follow for mothers who are breastfeeding. These state, for example, that employers should provide private, clean places for them to express milk, and fridges to store it in.

Operative date

  • Now

Recommendation

  • Employers faced with requests from women for changes to their working hours, workplace or duties to allow breastfeeding or expressing breast milk should consider them carefully and take appropriate expert advice, or risk discrimination claims against them

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.