In this case, an employment tribunal held that easyJet's roster practices were indirectly discriminatory towards two breastfeeding employees, and that easyJet had failed to pay remuneration for suspension on maternity grounds and to offer suitable alternative work.

The facts 

The two claimants are crew members employed by easyJet. On their return from maternity leave, they were both still breastfeeding.

easyJet's roster system stipulates that there is no restriction on the length of time that a crew or staff member can work, and that crew members may be required to work more than eight hours continuously.

The claimants made flexible working requests so that they would not be rostered to work longer than eight hours. This was to manage the length of time between opportunities to express milk (there was nowhere suitable for them to express). Their requests were backed up by medical advice that there was an increased risk of mastitis if breast feeding women go for prolonged periods without expressing or feeding. Two separate GP practices recommended that their shifts be limited to eight hours.

easyJet refused the claimants' flexible working requests. The claimants were ultimately given ground duties, but this was not immediate. The claimants had periods of sickness absence and unpaid leave.

The employment tribunal held that the claimants had suffered indirect sex discrimination. The roster pattern (which was the PCP) put the women at a particular disadvantage, because it put them in the position of either a) working a normal roster (which would effectively be a requirement to cease breast feeding or to expose themselves to the increased likelihood of suffering medical effects), or b) continuing breastfeeding but suffer pecuniary disadvantage.

For its justification defence, easyJet pleaded several legitimate aims, including the need to ensure that it could deliver its flying schedule, avoid delays and cancellations, and comply with legal and regulatory requirements. However, the tribunal did not consider that the roster arrangements were a proportionate means of achieving these aims. It said that easyJet had struggled to identity any actual examples of where granting bespoke individual rotas had caused the airline any difficulty, and described easyJet's evidence as "partially informed speculation". This was balanced against the claimants' evidence, comprising GP, the World Health Organisation and NICE advice, about the increased medical risk of mastitis.

The tribunal awarded compensation which included financial losses and injury to feelings. The injury to feelings awards were £8,750 and £12,500 plus interest.

The tribunal also held that the claimants were deemed suspended because they were not offered work for a period of time, and were therefore entitled to remuneration for the period of their suspension. It also found that the claimants should have been offered ground work much earlier than they were.

The tribunal commented that mothers do not have to tell their employer when they expect to stop breastfeeding. On the facts of this case, the employment tribunal did not accept that it was reasonable for easyJet to ask this question.

What does this mean for employers?

This is a tribunal decision, so not binding law. It is, however, a reminder of the rights of breastfeeding employees. There is no specific statutory protection for breastfeeding employees. However, they do benefit from other legal protections, including:

  • The right not to suffer indirect discrimination because of sex;

  • The right to be offered temporary suitable alternative work;

  • The right to paid suspension.  

The tribunal's judgment is also a very clear reminder that employers who wish to justify a PCP will need to present detailed reasons why the PCP is a proportionate means of achieving their legitimate aim(s), and these need to be backed up by hard evidence.

In this case, there was nowhere for the mothers to express milk. The tribunal expressed its surprise that, during the hearing, easyJet had suggested toilets might be appropriate for this. Employers should ensure that they have, wherever possible, given breastfeeding women the option of a private, clean environment where they can breastfeed. Toilets and sickrooms are not appropriate for this.

McFarlane and another v easyJet Airline Company Ltd