A ground-breaking employment tribunal ruling made on Thursday 29 September 2016 may mean that employers will have to make better arrangements for female staff who are breastfeeding. Decisions of an employment tribunal do not have binding effect on future tribunals, but they can be persuasive and do tend to show a “direction of travel” of interpretation by judges of the law.
Two EasyJet flight attendants, Sam Ambacher and Cynthia McFarlane brought an employment tribunal claim against their employer after it failed to offer arrangements that they considered appropriate to enable them to continue breastfeeding when they returned to work after maternity leave. An employment judge ruled that EasyJet’s actions were unlawful indirect sex discrimination.
According to reports of the case, the women first asked to work shorter 8 hour shifts, to allow them to express milk either side of their shift. The airline refused to reduce the pair’s hours on the grounds of health and safety stating it was “primarily for their own safety” because unforeseen delays could result in them working beyond eight hours. Instead, they were offered unrestricted duty days of 12 hours, which was not acceptable to the employees on medical grounds (the length of the shifts may have increased the risk of mastitis, a condition which causes breast tissue to become painful and inflamed). It was reported that Easyjet had not taken into account the medical advice of four GPS, nor undertaken its own risk assessment, nor obtained occupational health reports for the employees in question.
After the case was lodged, the airline offered both women ground duties for a period of six months. It was unwilling to extend that period because it said that the wish to breastfeed beyond that time was “a choice”. Unite union argued on behalf of the employees that by failing to provide a solution beyond six months, the airline was effectively making the decision for them.
The employment tribunal found that Easyjet had come up with a number of unworkable ‘solutions’ each of which involved the claimants suffering a significant detriment. It held that Easyjet had discriminated against the claimants indirectly on grounds of their sex. The employment judge found that the airline should have reduced the breastfeeding mothers’ hours, found them alternative duties or suspended them on full pay.
All employers should be aware of the rights and obligations established in relation to breastfeeding, which were in place even before this ruling:
- Regulation 25(4) and 25(5) of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) requires employers to provide suitable facilities for breastfeeding mothers to rest (including facilities to lie down) and to provide adequate rest and meal breaks. Toilets are not classed as “suitable facilities”.
- The Equalities and Human Rights Commission Code reminds employers to remember their duty of care to undertake risk assessments and remove any hazards for breastfeeding employees and recommends that employers try to accommodate employees who wish to take time off to breastfeed.
- The right not to be discriminated against on the grounds of sex, or on the grounds of pregnancy/maternity. This does not just mean treating a woman less favourably because of her sex or because she is pregnant and/or on maternity leave (“direct discrimination”) but as this case demonstrates, there is the potential for indirect discrimination to occur when employment policies and practices do not adequately address this issue.