A couple of months ago I was asked by a cousin “can I ask my boss if allowances can be made to allow me to continue breastfeeding my baby when I get back to work?”.
Her and her husband had elected to make use of the shared parental leave regime and as a result she was returning to work after a shorter period of maternity leave. She was excited at this prospect and the benefits that the shared parental leave regulations could offer them but her one concern was the thought of not being able to breastfeed her baby for as long as she would have liked to. My answer to her question? “Yes, absolutely make the request!”
Increasing number of women are choosing to continue breastfeeding on their return to work which is unsurprising given the numerous reasons for doing so. Maintaining a close relationship with the baby, being a source of comfort and the potential health advantages for both mother and baby are amongst some of these reasons. However, whilst some mothers do know their rights and entitlements due to their employers having policies and information ready, an alarming number do not, or worse, feel they cannot approach their employers with such requests.
Breastfeeding at work can mean a number of different things in practice – for example, you may need to go home or to a nearby nursery to feed, a family member or childminder could bring your baby to work or, most convenient perhaps, is expressing milk at work and storing it for later.
The recent Easyjet case brings this issue into the limelight and rightly so, given the stigma that is still attached to the topic of breastfeeding. The landmark victory, although only a first instance decision, is likely to have far-reaching implications for new mothers going back to work. The failure of Easyjet to make suitable arrangements following a request from two female workers was held by the Tribunal to be discriminatory on the grounds of sex. Easyjet had refused to allow the request from two employees to work eight hour shifts so they could express milk either side of the shift. Instead they offered 12 hour shifts – an option that was a health and safety risk for the breastfeeding mothers. Easyjet then, only after the initiation of proceedings, told the two women that they could do ground duties for six months which would allow them to continue breastfeeding their babies. However, the mothers were also told by Easyjet that this time period would not be extended because the decision to continue breastfeeding your baby was apparently a ‘choice’ and not essential. Rightly so, the Tribunal disagreed with this reasoning, stating that it was discriminatory to attempt to limit the time period during which mothers could continue to breastfeed, and the failure to facilitate the two mothers amounted to indirect sex discrimination.
Employers need to be mindful of their duty to employees in these situations. The starting point would be to have a policy or part of a policy that includes a section on breastfeeding in the workplace. Whilst it may be the case that there is no legal right for a mother to breastfeed on her return to work, employers must be aware of the health and safety protections and discrimination issues that may arise if they are dismissive of any such requests.
If an employee who is due to return to work after maternity leave requests adjustments so she can continue breastfeeding at work, various obligations will arise which the employer must comply with. It is worth noting that the request must be in writing for the health and safety protections to be triggered.
Firstly, for any employee who is going to breastfeed or express at work, employers are obliged to provide ‘suitable facilities’ for the employee to rest which should include a space to lie down. The guidelines suggest a “private and comfortable room, conveniently situated in relation to sanitary facilities and near a secure, clean fridge in which to store the expressed milk thereafter”. Employers may think toilet facilities tick the boxes and yes, although they are private, they are not a suitable option. A specific risk assessment must also be conducted.
Secondly, the request to breastfeed or express may mean that working hours/patterns or breaks need to be adjusted. This could be via a flexible working request or a less formal route, especially if the measure is only going to be temporary. Employers should consider each request reasonably and objectively. If it is not possible to allow an employee extra breaks, or to amend shift patterns, an employer may think about extending regular breaks slightly. If there is no possible solution and the request needs to be rejected, employers will need to explain the business reasons for doing so to the employee – although the Tribunal in Easyjet suggested suspending the mother on full pay was a reasonable option for the business and so refusals should be carefully considered alongside business needs and only applied in the most extreme of circumstances.
Finally, and it saddens me that this is something I still find I need to advise on, employers should also ensure that they take care to guarantee that any employees electing to continue breastfeeding at work are treated no differently and are protected from harassment such as inappropriate behaviour or offensive remarks by other employees. Many might think this sounds a bit of an obvious warning but unfortunately it isn’t and still crops up in maternity discrimination cases.
So ultimately what are my tips? Employers: be prepared, approach the topic in return to work meetings, carry out risk assessments, have a policy in place and treat each request on an individual basis. It is in your interest to have a happy workforce who feel encouraged and supported in situations like this. New mums: don’t be afraid of broaching the topic early and if you feel you are not being treated fairly, raise it.
Article first published in Your Coffee Break on the 25 October 2016, written by Sharney Randhawa, Bindmans LLP Solicitor in Employment and Professional Discipline Law.