Avoiding allegations of indirect sex discrimination with breast feeding mothers

Avoiding allegations of indirect sex discrimination with breast feeding mothers

June 10, 2020

It’s probably not the first thing you ask a mother when she returns from maternity leave.

“Hey, great to see you, please tell me whether you intend to breastfeed when you are at back!”

But given the case of McFarlane and another v easyJet Airline Company Ltd, the Employment Tribunal held that easyJet’s roster practices indirectly discriminated against two breastfeeding employees on the ground of sex.

So let’s take a look at the legal background to this case…

Indirect discrimination this arises where an employer’s “provision, criterion or practice” (PCP) which appears neutral and applies equally to all employees, does in fact put those who share a protected characteristic at a particular disadvantage, and a particular employee can show that the PCP particularly disadvantages them.

However, employers can justify indirect discrimination if they can show that the PCP was a proportionate means of achieving a legitimate aim.

The Facts

Two female members of easyJet’s cabin crew asked not to be rostered to work longer than eight hours, following a period of maternity leave, to manage the length of time between opportunities to express breast milk.

EasyJet operated a roster system based on the following PCP:

“Crew members fly to the flying patterns they are rostered; there is no restriction on length of the day that a crew or staff member can complete; crew members may be required to work more than 8 hours continuously”.

Both employees obtained fitness to work certificates from their GPs which outlined that, if the women were not able to express milk, there was an increased risk of mastitis. To manage this risk, the GPs advised that both employees should not work shifts of longer than eight hours, and so the employees asked not to be rostered for more than 8 hours at a time.

EasyJet rejected the employees’ request, on the basis that they needed to ensure that the airline could deliver its flying schedule, and avoid flight delays and cancellations. Instead, easyJet offered both women unrestricted duty days of twelve hours, increasing their risk of mastitis. EasyJet eventually agreed that the employees could carry out ground duties for six months, but said that any extension to this period would not be allowed.

Employment Tribunal Decision

The Tribunal held that easyJet’s failure to accommodate the employees’ breastfeeding requirements amounted to indirect discrimination. The Tribunal found that the PCP put women at a particular disadvantage compared to men, and specifically affected both employees. The employees had two options, either work the normal roster and expose themselves to an increased likelihood of mastitis, or continue breastfeeding and suffer a pecuniary disadvantage.

The Tribunal awarded compensation which included financial losses and injury to feelings. The amount of the injury to feelings awards were £8,750 and £12,500, plus interest.

Some things you can do…

  • Carry out risk assessments on all female employees who are breastfeeding.
  • Ensure suitable facilities and rest breaks are provided.
  • Be open and flexible when considering making reasonable adjustments, where possible, to the working conditions of a breastfeeding employee. For example can you offer temporary flexible working arrangements or reduced hours when breastfeeding as it won’t be forever.  Could your breastfeeding mothers express during their day and store their milk in a milk fridge till hometime? What would be the cost of this gesture in terms of goodwill and work life balance.
  • Make sure you don’t ask the employee how long they expect to continue breastfeeding – this is a sensitive matter.
  • Check that your policies and practices comply with discrimination law.
  • Take into consideration any GP and Occupational Health advice.
  • Familiarise yourself with the relevant guidance on breastfeeding, including the EHRC Code of Practice on Employment, the ACAS Guide on Accommodating Breastfeeding in the Workplace, and the HSE Guidance on New and Expectant Mothers. They are all available to download from web.

If you need any assistance with managing any aspect of HR please call us on 01527 306066.

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