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Breastfeeding at Work

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Calendar August 4, 2017

In celebration of World Breastfeeding Week, and in light of the current social discussions regarding breastfeeding in public, we outline the rights of breastfeeding mothers in the workplace.

WBW is celebrated on the 1st – 7th August each year to mark the anniversary of the Innocenti Declaration.
The Declaration was produced at the World Health Organisation and UNICEF policymakers meeting on ‘Breastfeeding in the 1990s’.
Your right to breastfeed or express at work

Although the law does not expressly provide the right to take breaks to breastfeed or express milk at work, employees are able to rely on health and safety and sex discrimination laws for some legal protection when it comes to breastfeeding.
Health & Safety Protection

Mothers who return from pregnancy and are breastfeeding enjoy the same protections under Health & Safety regulations as pregnant women and as such your employer is required to carry out a risk assessment in the same way that they would for a pregnant woman.
Your employer is legally obligated to provide somewhere for pregnant and breastfeeding mothers to rest and, where necessary, this should include somewhere to lie down. For example; your employer would be in breach of health and safety regulations if they insisted that you expressed milk in the toilets.

There are very few direct risks from working whilst breastfeeding, however, there is scientific evidence to show that both a mother’s and baby’s health may be put at risk if the mother does not breastfeed until the baby is at least 12 months old. In turn, if your working conditions prevent you from breastfeeding successfully and if not already identified by the risk assessment, this should be brought to the attention of your employer in writing as soon as possible to ensure that they make any reasonable adjustments to meet your health and safety needs
Some of the changes to remove any risk may include temporary changes to working patterns or conditions, such as arranging shorter shifts, more regular shifts or avoiding night working.

If your employer identifies that you are at risk in your current role whilst breastfeeding and they are unable to make suitable adjustments to remove the risk, they must offer you suitable alternative work on terms and conditions that are not substantially less favourable than your current role and in the even that this is not an option they must suspend you on full pay.

Sex Discrimination Protection

All employees with at least 26 weeks service have the right to make a request for flexible working under The Flexible Working Regulations 2014. The change is normally considered to be permanent if granted but can be on a temporary basis if agreed by your employer. The request can only be rejected by the employer for certain business reasons e.g. where it would have a detrimental effect on customers or performance.
If your request for flexible working is a result of your need to breastfeed or express, it should be accepted by your employer on a temporary basis as their refusal may result in indirect sex discrimination.

Indirect sex discrimination may occur when an apparently gender neutral requirement, disadvantages members of one gender over the other. For example; if an employer requires all staff to work fulltime and a member of staff who is breastfeeding asks for temporary part-time hours to allow her to breastfeed or express, the employer’s refusal would only ever put a female at a disadvantage as a male member of staff would never be required to breastfeed, thus giving rise to indirect sex discrimination.

Relevant Cases

McFarlane and another v easyJet Airline Company Ltd
The two employees were crew members employed by easyJet and both were still breastfeeding when they returned to work following maternity leave. At the time easyJet operated a roster system that meant that employees may have to work for more than eight hours continuously.
The breastfeeding employees made flexible working requests that they would not be scheduled to work longer than eight hours in order to allow them the opportunity to express milk. In support of their request for flexible working, the employees supplied certificates from their GP in which it was confirmed that they would be at an increased risk of mastitis should they be prevented from expressing milk and that they should be restricted to working no more than eight hours continuously.

The request was rejected by easyJet on the basis that it would prevent them from achieving their legitimate business aims, such as ensuring the airline could deliver it’s flying schedule without delays or cancellations.
easyJet eventually offered the employees temporary ground duties with amended hours, however, their failure to do so immediately meant that they were found to have indirectly discriminated against the employees and were ordered to pay compensation.

Squillaci v WS Atkins (Services) Ltd

The facts in Squillaci are very similar to the McFarlane case
The employee was specifically advised by her GP to breastfeed for at least twelve months due to a strong family history of eczema and upon her return to work submitted a request for flexible working to fit around her child’s feeding schedule. The employer refused her request and were found to have unlawfully discriminated against her.

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