An employment tribunal has ruled that two flight attendants were discriminated against in relation to breastfeeding requests.
Although the decision is not binding on future employment tribunals, it is a good illustration of how failure to make adjustments for breastfeeding employees can result in an expensive finding of sex discrimination against an employer.
The case involved two female members of EasyJet's cabin crew. Following their return from maternity leave, the employees asked the airline if they could work shorter eight hour shifts so that they could express their milk either side of the shift. The request was based on the recommendation of their GP's. EasyJet refused their request on the grounds of health and safety, reasoning that this was 'primarily for [the employees'] own safety' due to the risk of unforeseen flight delays which could result in them potentially working more than eight hours.
Instead, the airline offered unrestricted duty days of twelve hours, an option which would have significantly increased the risk of mastitis (a condition which causes painful inflammation of breast tissue). The tribunal found that EasyJet failed to carry out their own risk assessment of the situation, ignored the advice of four different GP's and failed to arrange for the employees to be assessed by occupational health.
EasyJet eventually agreed that the employees could carry out ground duties for six months, which would allow them to breastfeed in accordance with medical guidance but, the employer stated that any extension to this time period would be expressly rejected as the women's wish to continue breastfeeding was 'a choice'.
The employment tribunal ruled that EasyJet's failure to accommodate the employees' breastfeeding requirements amounted to indirect sex discrimination, stating that the correct approach would have been to find the employees alternative duties within the organisation, suspend them on full pay or reduce their hours.
The tribunal awarded the claimants compensation for injury to feeling of £8750 plus interest and £12,500 plus interest respectively.
Both of the claimants had taken 12 months maternity leave so it was perhaps slightly unusual that they were still breastfeeding their children when they returned to work. Easyjet reportedly asked the women on several occasions how long they intended to continue breastfeeding, but neither of the women was willing to specify. The employer argued that this was a perfectly reasonable thing to ask as it needed to be able to plan its flights and that the special arrangements it was being asked to agree to enable the women to breastfeed could potentially last for years. The tribunal was unmoved by this argument and did not agree that the needs of the employer's business in this case outweighed the disadvantage suffered by the employees.
Practical tips for employers
- Undertake risk assessments to ensure that female employees who are breastfeeding are not exposed to potential hazards within the workplace.
- Ensure suitable facilities are provided for breastfeeding mothers in which to rest. Also provide adequate rest breaks.
- Where possible, accommodate employees who wish to take time off in order to breastfeed by making reasonable adjustments to their working conditions/practices.
- Do not stick rigidly to a rule that 'there can be no flexibility', remain open to the idea of making changes and explore what can be put in place to help mothers breastfeed.
- Do not put pressure on employees to tell you when they intend to stop breastfeeding; this is a matter for the mother alone.
- Review the policies and practices in place within your organisation to ensure breastfeeding mothers are not being indirectly discriminated against.
- Follow the guidance on breastfeeding which is available. The tribunal in this case took into account, the EHRC Code of Practice on Employment, the ACAS guide on accommodating breastfeeding in the workplace and the HSE guidance on new and expectant mothers. Also, do not ignore any relevant advice from doctors or occupational health practitioners.