Flexibility required for employees who are breastfeeding
You may have heard in the news about a case which has been decided by the Bristol Employment Tribunal following a claim by two employees who had made a request for reduced hours to enable them to breastfeed.
Although there is no statutory right to time off work for breastfeeding if an employer refuses a flexible working arrangement for a mother who needs to breastfeed or express they may be in breach of discrimination legislation under the Equality Act 2010.
Indirect Sex Discrimination will arise where an employer applies a provision, criterion or practice (known as a PCP) that disadvantages job applicants or employees, on the basis of a protected characteristic (for example sex), without objective justification.
Two employees, Sara Ambacher and Cynthia McFarlane made a flexible working request so that they could be put on the rota to work less than 8 hours in one shift, therefore enabling them to express milk before and after their shift.
EasyJet refused their request and instead offered them ground duties for 6 months. The reported reason given for the refusal was that they could not guarantee 8 hour shifts due to potential delays and also that breast feeding after 6 months was a choice and not essential therefore their ground duties would only be for 6 months.
The two employees made a claim to the Employment Tribunal for indirect sex discrimination
The Employment Tribunal decided the case in favour of the employees. EasyJet had made the decision without considering the employees’ rights and medical evidence in support of the adjustment the employees requested.
Points to note
If you receive a request for flexible working or altered working patterns from employees it is important to consider them carefully. If the reason for the request is linked to parental rights, including pregnancy and breastfeeding, or on medical grounds then a failure to act reasonably could result in a claim for discrimination.
It is possible in some circumstances to justify your decision and therefore defeat a claim for discrimination but in this case EasyJet could not justify their decision.
This is an interesting decision and significant for mothers who are returning to work and whom have made the choice that they want to continue to breastfeed. Although a decision of the Employment Tribunal is not binding on other Employment Tribunal’s it is significant as it shows the climate of interpretation of cases of a similar nature.
In light of the current government’s drive to more family friendly rights it is unlikely that this decision will be reversed or decided differently in the future.
As demonstrated by the fact that this case has been widely reported in mainstream media getting the decision wrong can not only have financial ramifications it can also effect your reputation with customers and also with potential future employment candidates.
Action to take
- If you have an employee returning to work who is breastfeeding you must undertake a health and safety risk assessment.
- Check to see if you have a policy regarding breastfeeding in your staff handbook.
- If you receive a request from an employee who is returning to work and requests flexible working to breastfeed or express then ensure that you seek advice before making a decision.
If you would like specific advice and assistance for your business do get in touch for a no obligation discussion Alison@realemploymentlawadvice.co.uk or 023 8098 2006 or 01983 897003.