The Employment Tribunal found an Employee was subjected to sex harassment when her Employer failed to provide facilities to express breastmilk whilst at work

In the recent case of Mellor v MFG Academies Trust Employment Tribunal/1802133/21, Ms Mellor pursued a claim against the academy for direct and indirect discrimination, as well as harassment.

The Facts

Following her maternity leave in 2019, the Academy allowed Ms Mellor’s partner to bring their child into school to enable her to breastfeed. At the time Ms Mellor was provided with a private room in which to breastfeed, however, when Ms Mellor later needed a private room to express her breastmilk, issues arose.

Ms Mellor became pregnant again and notified the Academy in March 2020 that she would need a private room, to enable her to express her breastmilk, upon her return from her forthcoming maternity leave, and reminded the Academy again in June 2020 when she informed them of her return-to-work date.

Upon Ms Mellor’s return in September 2020, she raised her request with both her manager and HR, however, no suitable room was provided to enable her to express in. In the circumstances, Ms Mellor had to express her breastmilk either in her car or the Academies bathroom, and due to limited breaks that she received, she expressed during her lunch break. Due to the constraints of expressing within her car, she often used the Academies bathroom and ate her lunch at the same time.

The Decision

The Employment Tribunal upheld Ms Mellor’s claim that she has been subjected to harassment on the grounds of sex but dismissed her claims for direct and indirect discrimination.

The indirect discrimination claim was dismissed by the Employment Tribunal, as it found that Ms Mellor had failed to establish women suffered a comparative disadvantage to men. The Employment Tribunal found that as men are biologically unable to breastfeed this issue can only apply to women, and whilst the Employment Tribunal accepted this did put women at a disadvantage, it stated that case law demonstrates the practice complained of must be able to be applied to both men and women, which is not the case in relation to breastfeeding.

In respect of the direct discrimination claim, Ms Mellor relied on a hypothetical male comparator who required a private room for medical purposes.

Whilst the Employment Tribunal accepted that Ms Mellor had been treated less favourably than a male comparator in this situation, they determined that the reason for the less favourable treatment was due to the Academies administrative errors, and not due to Ms Mellor’s sex. Due to this finding, Ms Mellor’s claim for direct discrimination failed.

The Employment Tribunal did however uphold that Ms Mellor had been subjected to harassment, as she had no choice but to express in either her car or the Academies bathroom. In the circumstances, the Academies failure to provide adequate facilities did create a degrading and humiliating environment.

The requirement to provide facilities for breastfeeding

There is no statutory right to be provided with facilities to enable you to express or breastfeed, however, HSE guidance recommends that employers provide clean facilities to employees to enable them to express and/or breastfeed and enable them to store it in a fridge. The HSE guidance supports the European Commission’s guidelines on health and safety for new and expectant mothers.

Effect on Employers

Given the outcome of this case, I would recommend that employer’s give serious consideration to female employees who request private facilities to enable them to breastfeed, and wherever possible try to accommodate the request.

If you have any questions or require advice in relation to this matter, please do not hesitate to contact a member of the team on 01983 897003.