Employers must ensure that employees who are pregnant, have recently given birth or are breastfeeding are not required to perform any work that could place their health or that of their child at risk.
A risk assessment should be carried out to ensure that the employee has a safe work environment. In addition, as well as requiring employers generally to ensure adequate access to food, water and toilet facilities, the Workplace (Health, Safety and Welfare) Regulations 1992 contain a specific duty to provide suitable rest facilities for pregnant women and breastfeeding mothers. Where necessary this should include somewhere to lie down.
While there is no legal requirement to do so, it is good practice to allow breastfeeding employees access to a private room so they can express and store milk during the day. According to HSE guidance it is not suitable for new mothers to use toilets to express milk. The EHRC Equality Act 2010 Code of Practice also contains guidance on breastfeeding.
If the risk assessment finds a risk the employer is under an obligation to do all that is reasonable to remove or prevent exposure to this. This might involve altering the employee's working conditions or hours of work. If this is not reasonable, or the risk cannot be avoided, the employee must be offered suitable alternative work. If there is no suitable alternative work available, or if the employee reasonably refuses it, the employer must suspend the employee for as long as is necessary to avoid the risk.
In McFarlane and another v easyJet Airline Company the employment tribunal considered the claims of two breastfeeding employees who were cabin crew. They had requested a change to their rota arrangements (which required them to work shifts longer than eight hours) in order to manage the length of time between opportunities to express breast milk. EasyJet rejected the employees' requests. Subsequently the employees had periods of sickness absence and unpaid leave until they were ultimately given temporary ground duties.
The employees put forward evidence that they were at increased risk of mastitis if they were not able to express milk, and produced GP certificates stating that to manage the risk shifts should not be longer than eight hours. EasyJet argued that making the requested changes to the rota would result in the airline being unable to deliver its flying schedule or avoid flight delays and cancellations.
The employment tribunal rejected easyJet's arguments and held that its rota practices were indirectly discriminatory on the grounds of sex. The tribunal also held that in failing to offer the employees alternative work at an earlier stage easyJet had breached the employees' entitlement to be offered suitable alternative work. Furthermore, the tribunal held that the employees were deemed suspended during times they were not offered alternative work and were entitled to be paid during these periods. They also received injury to feelings awards of £8,750 and £12,500, plus interest.
While the decision is not binding, it provides clear legal support for women who wish to continue breastfeeding after returning to work. Employers should therefore ensure that they accommodate requests from breastfeeding employees to express milk. This might involve adjusting rotas or allowing breaks during the working day.
One question springing to mind though is: will Brexit affect such laws in the UK? Shortly after the referendum the government indicated that current employment legislation would not radically change once the UK leaves the EU. This was further supported by the prime minister's recent comments that workers' rights will not be eroded and will actually be enhanced under the current government. UK maternity rights are generally more generous that EU law requires, and it therefore seems unlikely that such rights will change to the detriment of employees.
Lucy Leonard-Davies is an associate at Blake Morgan
