The issue of breastfeeding and expressing milk at work is an area of concern for employers who wish to do their best to accommodate employee requests whilst trying to balance business needs. A recent tribunal case has thrown light on how difficult this area is for employers whilst a national report is urging the government to increase rights for working mothers. Below we examine the considerations employers should have when an employee wishes to breastfeed or express milk at work.
A report by the World Breastfeeding Trends Initiative has called on the government to introduce legislation to allow reasonable breastfeeding breaks and ensure suitable facilities for breastfeeding or expressing in the workplace. They have also urged the government to take action to guarantee access to tribunals for all women and for a rise in the minimum rate of maternity pay and the maternity allowance to the level of the recommended minimum wage. The report found that although employees have health and safety protection whilst pregnant and during breastfeeding, they are unable to enforce this in the workplace especially since the introduction of tribunal fees.
Health and safety regulations currently require employers to provide a suitable facilities for breastfeeding mothers to rest, allowing them the opportunity to lie down, as well as to provide adequate rest and meal breaks. Employers cannot class toilets as suitable facilities for this purpose. Instead, employers need to consider whether they have adequate space to provide a separate, private comfortable room. On smaller sites, this may mean that employers have to adapt an existing room when the need arises and simple changes such as putting a lock on the door and introducing comfortable seating in this room is likely to meet their obligation to provide a suitable facility.
Though the requirement only extends to certain provision, employers can consider introducing additional facilities for these employees. For example, where employees are expressing milk on site, employers can consider providing storage facilities. Although most workplaces have an employee fridge, some breastfeeding employees may feel reluctant or embarrassed at having to store milk in the normal food fridge. Employers can consider providing private, hygienic storage facilities that are separate to current provisions.
There are no legal requirements for employers to give paid breaks to breastfeeding or expressing employees. The recent case against EasyJet, however, highlighted that a total failure to consider a request for this, or to attempt to accommodate a workable alternative, can constitute sex discrimination. In the case, the employer had indirect discriminated against employees who had requested a change in shifts on return from maternity leave so they could express milk at the start and end of their shift. The employers refused the request and came up with a number of unworkable solutions which subjected the employees to a substantial detriment on the grounds of their sex. The tribunal commented that the employer should have taken other steps such as reducing the employees' hours, giving them alternative duties or suspending them on full pay to allow them to express milk or breastfeed.
The significance of this case is that it revealed the expectations a tribunal will have for employers to explore every option before making decisions regarding breastfeeding in the workplace. This will not be a unilateral decision for an employer to make and they should be holding discussions with employees to determine what can be done by the business to help accommodate a return to work. Employers will often be surprised that simply communicating the facilities available already in the workplace, i.e. the resting and storage facilities, will have a positive effect on how the employee views their return.
Where employers are operating shift patterns or long working days, they may need to consider allowing employees a paid break to express milk at work. Employers should approach this objectively, weighing up the impact of the break on the business, including the impact on productivity and meeting customer demand. Employers need to review each situation and request individually, looking at what each employee has asked for, rather than deciding themselves that they cannot accommodate it. Working with the employee to find the workable solution will not only limit the risk of a discrimination claim being brought by disgruntled employees but has other advantages including guaranteeing a positive return to work and encouraging loyalty and staff retention in the business.