Breastfeeding employees and the law

Year Published: 2022

Breastfeeding employees and the law; what should employers do to support staff? Failure to provide sufficient space for employees to breastfeed or express breastmilk may constitute sex harassment, as this Employment Tribunal case suggests.

 

Background

The claimant worked as a teacher in a school. The school failed to provide a private space for her to express breastmilk at work, forcing her to express breastmilk in the toilets or in her car. She brought claims in the Employment Tribunal for direct discrimination, indirect discrimination and sex harassment. The Tribunal dismissed her claims for direct discrimination and indirect discrimination but upheld her claim for sex harassment.

 

The facts

On the claimant’s return from maternity leave in January 2019, her employer allowed her partner to bring their baby into school for the claimant to breastfeed. The claimant made a request that a room be provided in which to feed her child, and this was granted. In March 2020, the claimant was pregnant with a second child and advised the school in writing that on her return from maternity leave, she would require a private room to express breastmilk. The issues in this case arose from the school’s failure to act on these requests which meant that on her return from maternity leave in September 2020, she was forced to express breastmilk in the toilets or in her car. As she was only entitled to a 25-minute lunch break and expressing took 20 minutes, the claimant had to eat her lunch at the same time as expressing breast milk. The claimant would generally use the toilets to express breast milk as it was cold in her car and she was concerned about being seen by pupils and other staff; she would sit on the toilet floor and eat her lunch at the same time.

 

Harassment

The test for harassment under the Equality Act is unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.

The Tribunal found that the claimant genuinely and reasonably had no choice but to use the toilets or her car to express breastmilk as the alternative would be embarrassing leakage and lead to her potentially developing mastitis. The Tribunal held that this amounted to the claimant being forced to express in the toilets or her car. They concluded that the school’s conduct of forcing the claimant to express breastmilk in the toilets whilst eating lunch, and in her car with the risk of being seen by pupils and others, was unwanted; several of the school’s witnesses did not dispute that the failure to provide private facilities was unacceptable and one described it as ‘mortifying’. The conduct was clearly related to the claimant’s sex, as the need for privacy arose from the intimate nature of expressing breastmilk and whilst it didn’t have the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant, the Tribunal asserted that it did have the effect of creating a degrading or humiliating environment. As such, they held that by failing to provide separate facilities to allow a breastfeeding woman to express breastmilk, the school had harassed the claimant.

 

What to take away from this case

Whilst there is no statutory right in English law to the provision of facilities for breastfeeding expressing milk at work, guidance from the Health and Safety Executive recommends that employers should provide facilities such as a private, clean environment (excluding toilets) for expressing milk and a fridge for storing it. Furthermore, a case from the European Court of Justice, which, after Brexit, it should be noted is persuasive and not binding on English courts, emphasised that any less favourable treatment of a female worker due to her status as a breastfeeding woman would likely constitute discrimination on the grounds of sex.

The case explored in this blog suggests employers should consider carefully the facilities they provide for breastfeeding mothers. When an employee makes a request for facilities to be provided, similar to those the claimant made in this situation, they should not brush them under the carpet, but work with the employee to find a solution and meet their specific needs. This case illustrates that a failure to listen to employees and provide such facilities could result in successful claims for sex harassment, as breastfeeding mothers are forced to find other, less hygienic ways to express milk which has the potential to create a degrading or humiliating environment for the individual.

For more information on this topic please contact Matthew Ottley on 01614757663 or [email protected]

 

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