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Breastfeeding At Work: What Employers Need To Know

Often employers do not know what their legal obligations are in relation to employees breastfeeding at work. In this article Emma Roberts explores the law, case law and what you can do to support your new mothers.

The Law

It is up to new mothers to decide whether they wish to continue breastfeeding when they return to work and for how long.

Employees should inform you that they will be breastfeeding once they return to work, for example, during a meeting to discuss their return to work.

You must provide suitable rest facilities for those who are pregnant or breastfeeding. Where required, it should include a place where the employee can lie down and should be close to the toilets.

However, you are under no legal duty to provide them with a suitable place to breastfeed or express milk. The law also does not oblige employers to provide employees with paid breaks to breastfeed or to express milk.

Employers need to carry out a general risk assessment, which looks at the particular risks that female employees of childbearing age are exposed to and any risks to new or expectant mothers, including risks from processes, working conditions and physical, biological or chemical agents.

There is no legal duty imposed on employers to carry out a specific or additional risk assessment once you are told the employee is breastfeeding, but you may decide that this is the best course of action.

Once you have been informed that an employee is breastfeeding, the employer will need to look at the general risk assessment to see if there any risks. It is important that this is regularly reviewed to ensure it is up to date. If significant risks to the breastfeeding process have been identified, you must take reasonable steps to eliminate, decrease or control these risks.

If these risks cannot be removed, decreased or managed, you will need to think about whether you can vary their working hours or change their working conditions on a temporary basis.

If this is simply not possible, you may need to offer them any available and suitable alternative work that is not substantially less favourable than the employee’s existing terms and conditions.

If this is not feasible, then you may need to suspend the employee from work with full pay for as long as needed to safeguard her health and safety and that of her child.

Remember that depending on the circumstances, refusing to permit a woman to express milk or to adjust her working conditions to allow her to continue to breastfeed her baby may constitute unlawful sex discrimination.

Case Law

In 2016, two employees successfully succeeded in their claim regarding the right to express milk at the work.

In this case, the two claimants were employed by EasyJet in cabin crew roles. EasyJet has a roster system in operation – there are no limits to the length of day that a cabin crew member can work.  Both new mothers submitted flexible working requests for their rostered hours to be limited to eight hours as per the advice of their GP to enable them to continue breastfeeding. They cannot express on board an aircraft. Their requests to reduce their working day were rejected and they raised formal grievances.

EasyJet offered ground duties for six months, but they refused to extend this any further as they deemed it as the employee’s choice.

The employees argued that working the standard 12 hours would significantly increase the risk of mastitis, milk stasis and engorgement and the airline’s approach to rostering generated a particular disadvantage to women.

EasyJet stated that they refused the requests as they could not guarantee that the employee would only work for 8 hours a day because delays were possible meaning longer hours. The airline also said they had tried bespoke rosters with limited hours in the past, but they had not worked out.

The Employment Tribunal found:

  • Despite the fact that neither of the employees had contracted mastitis, milk stasis, and engorgement, there was a risk of this occurring.
  • EasyJet had not conducted a risk assessment, ignored the advice of different GPs and not acquired occupational health reports for the employees.
  • EasyJet had not been able to present persuasive proof that bespoke rosters would create operational difficulties.
  • Employees had to either work their normal roster which effectively meant they had to cease breastfeeding, or they continued but suffered a disadvantage. The Employment Tribunal concluded that EasyJet’s refusal to permit them to work restricted hours constituted indirect sex discrimination.
  • As they were unfit to work over eight-hour shifts, they should have been offered ground duties at a much earlier stage and if these were not available, they were entitled to be suspended on full pay.

Best Practice

When making a decision, the Employment Tribunal considered the ACAS Guide.

In brief, it says that:

  • Employers should discuss with their employees what can be done to accommodate breastfeeding in the workplace. You should talk to other employees that will be affected by the requests and explain how their role will be adjusted temporarily.
  • You should consider providing them with a private and clean place to breastfeed and a clean and secure fridge to store milk. Remember, a toilet is not an appropriate place to express milk, but you may have a disused office or area which can be used.
  • If appropriate, consider the possibility of giving them additional breaks or extending current breaks.

If you need help and advice regarding breastfeeding at work, please do not hesitate to contact me on 0113 350 4030 or at emma.roberts@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and litigation practice based in Leeds which advises clients nationwide. Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Emma Roberts
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Emma Roberts

Emma is a trainee solicitor at SCE Solicitors. Emma commenced her training contract in September 2018 and is currently working in the employment law department assisting director Samira Cakali. Emma also assists in the running of the firm’s myHR service where she can support you in the day-to-day management of your staff.

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