The Employment Tribunal has seen a rise in the number of sex discrimination claims made leading to a five-year high. Latest figures show that 9,300 claims were made last year, which is a 69% increase.
The rights and protections for employees breastfeeding in the workplace
It is world #breastfeeding week!
This week (1 – 7 August) marks world breastfeeding week and is a timely opportunity to review the rights and protections afforded to employees breastfeeding in the workplace.
At a time when employers are facing a paucity of good candidates to fill vacancies, having an awareness of the issues faced by mothers returning to work and by those who are nursing (and who may continue to nurse for months or even years following the birth of a child) is a crucial step towards encouraging diversity and being able to recruit, and retain, the best possible talent.
What does the law say?
The law relating to the treatment of pregnant employees and those on maternity leave is, it is probably fair to say, reasonably well-known and well-rehearsed.
“Pregnancy and Maternity” is one of nine “protected characteristics” set out in the Equality Act 2010 in respect of which discriminatory treatment is unlawful. The protected period (for the purposes of “pregnancy and maternity discrimination”) begins when the woman becomes pregnant to when she returns to work.
However, some may be surprised to learn that there is no separate protection under the Equality Act 2010 specifically for breastfeeding in the workplace. There are, however, various provisions contained both in the Equality Act 2010 and other legislation, and also in guidance documentation produced by ACAS, the Health and Safety Executive and the Equalities and Human Rights Commission which does provide certain protections for employees. These are summarised below.
All employers have a duty of care to protect the health and safety of their employees. This obligation is not only implied in all contracts of employment but also set out The Workplace (Health, Safety and Welfare) Regulations 1992 (Regulations).
Suitable facilities for the employee to rest
These Regulations contain the minimum health and safety requirements in the workplace. Regulation 25(1), also expressly states that “suitable facilities shall be provided for any person at work who is a pregnant woman or nursing mother to rest” and more frequent rest breaks may need to be taken as a result.
Health and Safety Executive guidance provides that the employer and employee should seek to agree on the timing and frequency of any rest breaks and, if necessary, the employer should provide an area (that is neither a toilet nor a general sick room) where the employee can lie down.
Suitable facilities for the employee to breastfeed or express milk
Whilst there is no legislation that specifically requires an employer to provide facilities for an employee to breastfeed their baby or express milk, again, HSE guidance recommends that mothers be allowed to express milk in a clean, safe and sanitary space and, in addition, a place where their milk can be stored. HSE believes such provisions are vital for ensuring those employees who are still breastfeeding are treated with dignity and respect in the workplace.
Employers must also carry out risk assessments where an employee informs them they are pregnant, breastfeeding or have given birth within the last six months. This is important as the risks and hazards that an employee faces in the workplace as a result of pregnancy may not necessarily be the same for a breastfeeding employee upon their return to work.
As stated above, the protected period for the purposes of pregnancy and maternity discrimination ends on the employee’s return from maternity leave.
Any claim for less favourable treatment, therefore, would need to be brought on the grounds of sex discrimination. In this respect, the normal protections against direct and indirect discrimination, harassment and victimisation would apply.
Recent cases have crystallised employees’ rights in this area. For example, failure to provide suitable private workplace facilities for breastfeeding employees could amount to harassment (on the basis that this potentially violates a woman’s dignity).
Likewise, refusing time off to allow an employee to breastfeed or express milk, scheduling rosters and shift-patterns that limit the extent to which employees can take time off and/or rest for these purposes, could be indirectly discriminatory unless they can be objectively justified.
In order to reduce the risk of successful claims arising from the provisions (or lack of) afforded to breastfeeding mothers/employees, Prettys Employment Team recommends the following:
Tips for employees
- Make sure you inform your employer in writing that you will be breastfeeding when you return to work. Unless your employer knows this, they will not be liable for any less favourable treatment.
- Consider making a flexible working request to formalise the arrangements (e.g. time off and rest breaks) that you require to help you maintain breastfeeding for as long as you wish to do so.
- Be clear about what you require and why, particularly if there are medical issues (for you or your baby) which means that continuing to be able to breastfeed is particularly important.
Tips for employers
- Consider putting in place a policy on breastfeeding and make employees aware of its existence. This demonstrates a proactive and inclusive approach to returning parents and will help to ensure that they feel supported in the workplace. ACAS suggests that it might also be beneficial to include accommodating the needs of breastfeeding employees within your flexible working policy for to ensure objective and fair decisions are made.
- Discuss with breastfeeding employees what they need in order to facilitate their return to the workplace.
- With the employee’s consent, consider notifying other members of staff (or select colleagues) before the employee returns that the employee will be breastfeeding, and explain what this means in terms of rest breaks etc. in order to minimise the risk of adverse remarks being made.
Prettys Employment Team has a wealth of experience advising employees and employers on pregnancy, maternity and discrimination issues. If you require further assistance, please feel free to contact us at Employmentexpert@prettys.co.uk