Welcome to Wrigleys' Employment Law Bulletin, July 2022.
Our next free virtual Employment Law Brunch Briefing takes place on Tuesday 2 August. This session will provide an update on the law on holiday leave and pay and will look in detail at the very recent decision of the Supreme Court in Harpur Trust v Brazel. This decision has significant holiday pay implications for employers who engage workers on ongoing contracts but where there are some non-worked weeks each year. Please click on the link below to book your place or register to access the recording.
In this month's bulletin, we consider two interesting employment tribunal decisions in the context of discrimination law. The first, Mellor v The AFG Academies Trust, considers the rights of staff who are breast-feeding. The second, Burke v Turning Point Scotland, considers the circumstances in which "long Covid" will be found to be a disability under the Equality Act 2010. Although these cases do not set a legal precedent, they provide helpful guidance for employers.
We also report on the case of Mackereth v DWP in which the EAT confirmed that a doctor's lack of belief in "transgenderism" was protected but found that he had not been discriminated against.
We are always interested in feedback or suggestions for topics that may be of interest to you, so please do get in touch.
Lack of facilities for expressing breastmilk found to be sex harassment, but not direct or indirect discrimination
Article published on 14 July 2022
Tribunal decision appears to highlight lack of legal recourse for women in these circumstances.
As the flexibility of UK workplaces continues to evolve, one of the issues at the forefront of flexible and family-friendly work is how parents juggle working with childcare. A wide range of familyfriendly rights have come into force over the years, from maternity, paternity, adoption and shared parental rights, to compassionate leave and bereavement leave and pay.
Another by-product of the coronavirus pandemic has also seen parents juggling childcare and work responsibilities more directly. During the pandemic it was difficult for parents of young children to send them to school or nursery with one side-effect being that some parents had to find ways to manage childcare within the normal working day.
This issue reached Parliament with MPs being reported in the press seeking to take their children into House of Commons debates.
Naturally, employers must consider just how flexible they are willing and able to be regarding work-life and family balance and how this interacts with aspects of employment and discrimination law. A recent Employment Tribunal case considered how the act of breastfeeding and expressing breastmilk at work interacted with claims of sex harassment and direct and indirect sex discrimination.
For these purposes, it is useful to note that s.13 of the Equality Act 2010 explicitly states that it is direct sex discrimination to treat a woman less favourably because she is breastfeeding, though this is specifically stated not to apply to discrimination at work.
Currently there is no statutory right to the provision of facilities for breastfeeding or expressing milk at work. Health and Safety Executive Guidance does, however, recommend that employers provide a private, clean environment other than toilets for expressing milk and a fridge for storing it. The Equality and Human Rights Commission's Employment Statutory Code of Practice also provides guidance around those breastfeeding at work and that employers have a duty under health and safety provisions to provide suitable workplace rest facilities for women at work, who are breastfeeding mothers, to use (see para 8.45)
M was a teacher at the Trust. Whilst on maternity leave M contacted the school to advise that she would need a room on her return to work to express breastmilk for her child. M further reminded the Trust and the Trust's HR team of this need when she confirmed her return to work and again on her return from maternity leave.
However, these requests were not followed and instead the Trust permitted M's partner to bring her baby into the school for her to breastfeed. M subsequently requested that she was provided with a room to feed her child and, later, once again requested a room to express breastmilk.
When no room was provided, M expressed milk in either the school toilets or her car. M had a 25 minute lunch break and expressing took 20 minutes, meaning she was forced to eat her lunch whilst expressing.
M brought claims of direct and indirect sex discrimination and sex harassment against the Trust.
The Tribunal upheld the sex harassment claim but dismissed the claims for direct and indirect discrimination.
In reaching its decision the Tribunal concluded that a narrow interpretation of s.13 Equality Act 2010 was required, and that it was the clear intention of Parliament that employers should be able to prevent breastfeeding at work because of the potential risks of taking a child into the workplace. On the other hand, the Tribunal recognised that Parliament wished to protect the rights of breastfeeding women when accessing premises or services.
On indirect discrimination the Tribunal concluded that the Trust had a provision criterion or practice (PCP) of not providing suitable facilities for women to express milk. However, applying the reasoning of Baroness Hale in the (then) House of Lords case of Rutherford v Secretary of State for Trade and Industry (No 2)  that 'indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage of disadvantage in question', the Tribunal concluded that as the act of expressing breastmilk did not affect men, this meant no comparative disadvantage arose for the purposes of indirect discrimination.
On direct discrimination, M sought to rely on the hypothetical comparator of a man with diabetes requiring a similar private space to inject and store insulin at work. Although the Tribunal found that M was put at a disadvantage compared to the hypothetical comparator, it found the reason for the less favourable treatment was in fact the school's administrative incompetence and not M's sex. On that basis her direct discrimination claim was not upheld.
On sex harassment, the Tribunal held that M had, in effect, been forced to express in the toilets or her car, with the latter creating a risk she would be seen by pupils and others. The Tribunal found this to be unwanted conduct which had the effect of creating a degrading or humiliating environment for M. It found that this conduct was related to M's sex as the need for privacy from the intimate nature of the activity arose because M was a woman.
Whilst the Tribunal's narrow application of s.13 Equality Act 2010 reaffirms the disapplication of direct discrimination for breastfeeding women whilst at work (i.e. when the child is present), the defeat of the wider direct discrimination claim because of the school's own administrative incompetence has drawn criticism from legal commentators. This is chiefly on the basis that it appears to ignore that the situation would only happen to a woman and the fact the Trust admitted it likely would have provided suitable facilities to the hypothetical diabetic M put forward as a comparator.
This case has also highlighted the impact of Baroness Hale's comments in Rutherford have on cases such as these. The effect appears to be that where an employer has a blanket ban on something which limits the pool in such a way that only one group is disadvantaged, then there is no indirect discrimination because the group(s) who are unaffected have no interest in that disadvantage. This appears to be a twisting of the intention of indirect discrimination protections.
Even though M won her sex harassment claim, the protection afforded to breastfeeding or expressing women at work is still slim because a lack of facilities may not always give rise to a degrading or humiliating environment.
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