An employment tribunal has considered whether an airline’s roster practices were indirectly discriminatory towards breastfeeding mothers.

MacFarlane and another v EasyJet Airline Company Ltd, ET

Facts

The two claimants worked as cabin crew for easyJet. Following a period of maternity leave, they both made flexible working requests to accommodate their desire to continue breastfeeding their babies. The claimants’ request was that they were not rostered to work for longer than eight hours, in order to manage the length of time between opportunities to express breast milk. The claimants submitted fitness to work certificates from their GPs in support of their application.

The request was refused by easyJet, which cited a number of legitimate aims including ensuring that the airline could deliver its flying schedule as well as avoiding flight delays and cancellations. The claimants were eventually given temporary ground duties, after taking a period of sickness absence. They brought a claim for indirect sex discrimination.

Employment tribunal decision

The tribunal upheld the claimants’ claim. It held that the provision, criterion or practice (‘PCP’) applied by easyJet, requiring crew members to fly according to the roster pattern with no restriction on the length of the working day, put the claimants at a particular disadvantage. The tribunal did not accept easyJet’s argument that the PCP could be justified. The company had struggled to provide any actual examples of where granting bespoke individual rotas had caused the airline any difficulty. The tribunal further held that it was not reasonable to ask the claimants how long they expected to continue breastfeeding.

In upholding the claim, the tribunal made a number of recommendations that the claimants’ sickness absence should be discounted for the purposes of any future attendance management or redundancy scoring process, or entitlement to occupational sick pay.

Consequences

While this case is not binding on other tribunals, it is important in illustrating the expectations for employers to accommodate the needs of breastfeeding mothers.

The tribunal appears to have been particularly critical of the employer’s attempts at justifying the imposition of fixed flying rosters, describing their evidence as “partially informed speculation”. In defending a claim for indirect discrimination, it is essential for an employer to be able to show it has a legitimate aim and can demonstrate with evidence that its PCP (in this case the rostering arrangements) is a proportionate means of achieving those aims.

The content of this article is for general information only. For further information regarding flexible working, please contact a member of Birketts' employment team. Law covered as at October 2016.