A recent landmark ruling involving EasyJet has found that failure to make adjustments to assist breastfeeding women express milk at work could amount to discrimination.
The circumstances of this case are not universal due to the nature of the work but the outcome is important for all employers.
The claimants were two breastfeeding mothers employed by EasyJet in various roles within cabin crew. On their return to work following maternity leave both claimants requested adjustments to be made to their working hours in order to allow them to express breast milk. As this could not be done on board an aircraft, they requested, on medical advice, that their rosters be limited to a maximum of 8 hours. Both requests were refused and, when the employees were not able to work shifts of 8 hours or less, they were treated as suspended without pay.
While the company agreed to temporarily assign ground duties to the claimants, it refused a request to extend this beyond 6 months, despite one of the claimants continuing to breastfeed beyond this period. The stress this caused her resulted in her being signed off sick.
The claimants brought claims of indirect sex discrimination and breach of specific employment rights relevant to maternity-related suspension.
The tribunal found that the claimants succeeded on both claims. It held that EasyJet should have offered the employees shifts of 8 hours or less and, if they were unable to do so, should have suspended them with pay.
What you, as an employer, can do to avoid discrimination or constructive dismissal claims:
- Carry out a risk assessment when a breastfeeding mother returns to work to ascertain whether there are limits on the hours she can work or whether she is at risk of developing any breastfeeding related health problems.
- Provide suitable facilities for a expressing milk at work. These should be private, hygienic and comfortable (it has been specifically stated that lavatories are not acceptable).
- Alteration to work hours: where it is not possible to express milk during work hours, alterations to work hours should be considered, so that the employee is never forced to work longer than she can go without expressing.
- Temporary change of duties: if altering work hours would not remedy the situation, consider a temporary change of duties (without altering the employee's pay) which would make it possible for the employee to take breaks for expressing milk.
- Suspension with full pay: as a last
resort, if none of the above adjustments can be made, breastfeeding
mothers are entitled to be suspended from work on full pay until an
adjustment can be made or they stop breastfeeding.
New flexible working report published
In spite of the employees' entitlement to request flexible working, 6 out of 10 mothers are unable to access flexible working.
A report published by Digital Mums and conducted by the Centre for Economic and Business Research shows that currently 2.6 million mothers are out of work in the UK. 68% of those said they would go back to work if flexible working to accommodate childcare was possible.
Over half of those mothers who have a flexible job have had to compromise their skills and experience and take a more junior role.
The report notes that, as well as the waste of talent from working mothers, the economy is missing out on 66 million hours that could be worked each week in the UK. This translates to a loss of £62.5 billion.
The Equality and Human Rights Commission has further confirmed that 11% of women who return to work following maternity leave are quickly forced out (e.g. because they refuse to work long hours due to childcare), which costs the British businesses a total of £280 million a year in costs of hiring and training new staff, redundancy pay-outs and lost productivity.
Dealing with flexible working requests
When dealing with flexible working requests, employers will often need to balance the desire of parents to work flexibly and the company's desire to retain these employees, against the needs of the business and the difficulty of accommodating some requests. The company also needs to be mindful of avoiding claims for indirect sex discrimination and constructive unfair dismissal which may result from turning down requests for flexible working.
- Accept requests where practical – when in doubt, consider trial periods. The employee's performance during a trial period should be monitored and recorded carefully so that if the request is refused after the trial period, this can be justified.
- Where requests cannot be granted, show that they have been considered fairly, and give strong and supported reasons for the refusal. The reason must always fall within the 8 "fair" reasons set out in flexible working legislation.
- If refusing a request, try to offer a compromise solution that will offer the parent some flexibility, while meeting the needs of the business.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.