Employees and Breastfeeding
Author: Nicola O'Dwyer
In a recent case, an employment tribunal considered whether crew members employed by EasyJet who were still breastfeeding when they returned from maternity leave had suffered indirect sex discrimination as a result of the airline’s failure to allow them to have bespoke roster arrangements.
In this case two female crew members, made flexible working requests for a reduction in the length of their shifts so that they could express milk on either side of their shift. However, EasyJet rejected their requests stating that their policy was that crew members had to keep to the flying patterns on which they were rostered and that there could not be any restriction on the number of hours that a crew or staff member can complete.
Both women obtained fitness to work certificates which highlighted an increased risk of mastitis if they were unable to express milk. In the end, EasyJet agreed to provide ground duties to them on a temporary basis. However, as this did not happen immediately both employees had to take periods of sickness and unpaid leave.
The women claimed that they had suffered indirect sex discrimination and that EasyJet should have suspended them on full pay on medical grounds or have found alternative work as soon as they requested it.
The Tribunal held that the failure to provide bespoke rostering arrangements created a particular disadvantage for female employees. Consequently, it was found that the two employees were put at a disadvantage as they had to either:
- work normal roster and cease breastfeeding;
- continue breastfeeding and expose themselves to health risks or
- continue breastfeeding but suffer pecuniary disadvantage by not being able to roster themselves on certain shifts.
EasyJet tried to justify its position at the Tribunal on a number of grounds. One of the arguments that EasyJet put forward was that it could not offer bespoke rostering arrangements as it could effect their ability to deliver their flight schedule and potentially cause flight delays and cancellations. However, the tribunal considered EasyJet was unable to justify its argument as it had struggled to identify any actual examples of where granting a bespoke roster had caused any difficulty.
Compensation was awarded by the Tribunal to the employees which included financial losses and injury to feelings. The amount of the injury to feelings awards were £8,750 and £12,500, plus interest.
It is important that employers consider mothers that return to work may still be breastfeeding and consider any request appropriately as although employees do not have any statutory right to time off for breastfeeding, breastfeeding mothers have other legal protections (where there is a health and safety risk to the new mother) which include:
- The right not to suffer indirect discrimination because of sex
- The right to be offered temporary suitable alternative work
- The right to paid suspension.