In McFarlane and another v easyJet Airline Company Ltd ET/1401496/15 & ET/3401933/15, an employment tribunal held that easyJet's roster practices were indirectly discriminatory towards two breastfeeding employee crew members on the grounds of sex.

Facts

Ms McFarlane and a female crew member colleague both had periods of maternity leave and were both still breastfeeding their babies when they returned to work. EasyJet have a flight roster system for crew members, which may require crew members to work more than eight hours continuously.

It was agreed that the following provision, criterion or practice (PCP) was operated by easyJet: "Crew members fly to the flying patterns they are rostered; there is no restriction on the length of the day that a crew or staff member can complete; crew members may be required to work more than eight hours continuously."

There was no suitable location for Ms McFarlane and her colleague to express breast milk while working. They both made flexible working requests that they not be rostered to work for longer than eight hours to enable them sufficient time to express breast milk. Their requests were rejected by EasyJet, who argued that rejecting bespoke roster arrangements was a proportionate means of achieving its aims of delivering its flight schedule without delays and cancellations.

Ms McFarlane and her colleague both obtained Fit for Work certificates from their doctors, which advised that the women were at an increased risk of mastitis if they were not able to express breast milk. Their doctors stated that their shifts should be no longer than eight hours to minimise that risk. Both women appear to have had periods of time off sick and periods of unpaid leave and were assigned to ground duties temporarily.

Both employees lodged employment tribunal (ET) claims alleging that they had suffered indirect sex discrimination. They argued that easyJet should have suspended them on full pay and that it had failed to offer them suitable alternative work sooner.

Employment tribunal decision

The ET accepted that the PCP (detailed above) placed women at a particular disadvantage compared to men and that Ms McFarlane and her colleague (the claimants in this case) were or would be placed at that disadvantage. The claimants were put in the position of either continuing with their normal roster, which would have meant they could no longer breast feed or would have been at increased risk of developing mastitis, or to continue breastfeeding and not undertake to work certain shifts. The latter option would financially disadvantage the claimants.

The ET held that the PCP was not objectively justified. EasyJet failed to provide examples to the ET of where granting individual rotas had caused them any difficulties. The claimants, on the other hand, had produced medical evidence from their doctors to support the argument that they were at an increased risk of developing mastitis if they did not have the opportunity to express milk.

The ET found that the claimants should have been offered ground work sooner than they were and that when they were not offered work for periods of time they were deemed suspended and should have been paid during that period.

The ET found in favour of the claimants and awarded them compensation, which included injury to feelings awards, of £8,750 and £12,500 plus interest.

The ET also made the following recommendations:

  • EasyJet should discount any absences during the relevant periods and no disciplinary warnings should be issued for absence
  • Any company sick pay paid to the claimants during the relevant period should be disregarded when calculating any future entitlements to company sick pay
  • Any annual leave entitlement used up by the claimants during the relevant period should be credited back to them.

Comment

While this is only an ET decision, so is not binding, it details a real life example of the issues faced by some breastfeeding mothers, the consequent obligations arising for employers, the lengths an employer needs to go to in order to successfully argue objective justification and an indication of the recommendations that an ET may make in a discrimination case.

Employers should consider requests for altered working arrangements carefully, particularly where the reason for the request is related to pregnancy, breastfeeding, childcare or a disability. The decision shows how employers must be able to back up a decision with good evidence; easyJet could have defended the claim had it been able to show that its decision was justified.