McFarlane and another v EasyJet Airline Company Ltd ET/1401496/15 & ET/3401933/15

EasyJet's failure to accommodate women who were breastfeeding by limiting their shifts to eight hours amounted to indirect sex discrimination.

According to medical advice, breastfeeding mothers are at risk of developing mastitis if they are not able to express breast milk regularly. Both Claimants were breastfeeding their babies and were not able to confirm how long they intended to breastfeed for.

EasyJet operated a general prohibition on individual rostering arrangements for crew members. This was found to be a provision, criterion or practice ("PCP") that was applied to all crew members. Further, the ET held that this PCP placed breastfeeding women at a disadvantage because they were either forced to work a normal roster, at the risk of developing mastitis, or to continue breastfeeding but suffer pecuniary disadvantage.

EasyJet argued that this failure to accommodate the Claimants' requests served legitimate business needs, in particular, to avoid flight delays and cancellations and to comply with various legal and regulatory requirements. Further, EasyJet asserted that these measures were proportionate for numerous reasons, notably because of the regular disruption to flying schedules, which often causes crew members' duties to be extended.

The ET rejected EasyJet's arguments on proportionality. It found that the evidence provided by EasyJet was unconvincing, as only two relevant examples were given of a flight being cancelled due to a bespoke roster. In addition, there was evidence that EasyJet had created a bespoke rostering arrangement for a cabin crew member suffering from thrombosis, which had not created insuperable difficulties. Thus, the PCP was found to be indirectly discriminatory.

Employers should consider any policies on employees' shift lengths in light of this judgment as it is possible that disproportionate inflexibility could amount to indirect sex discrimination. It should also be noted that the ET, unsurprisingly, found that it was unreasonable for EasyJet to ask the Claimants how long they intended to breastfeed for.