Returning to work after maternity leave is daunting enough. But for some new mothers, there are added concerns about how they will continue to breastfeed while at work.

Often employers do not know what their legal obligations are and what rights new mothers have, so let us explore the law, case law and what you can do to support employees who are breastfeeding.

The law

It is up to new mothers to decide whether they wish to continue breastfeeding when they return to work and for how long. There is no law to prevent it.

However, employees should inform you that they will be breastfeeding once they return to work, for example, during a Keep in Touch day or during a meeting to discuss their return to work.

You must provide suitable rest facilities for those who are pregnant or breastfeeding. Where required, it should include a place where the employee can lie down and should be close to the toilets.

However, you are under no legal duty to provide them with a suitable place to breastfeed or express milk. The law also does not oblige employers to provide employees with paid breaks to breastfeed or to express milk.

Employers need to carry out a General Risk Assessment, which looks at the particular risks that female employees of childbearing age are exposed to and any risks to new or expectant mothers, including risks from processes, working conditions and physical, biological or chemical agents.

There is no legal duty imposed on employers to carry out a specific or additional risk assessment once you are told the employee is breastfeeding, but you may decide that this is the best course of action.

Once you have been informed that an employee is breastfeeding, the employer will need to look at the General Risk Assessment to see if there any risks. It is important that this is regularly reviewed to ensure it is up to date. If significant risks to the breastfeeding process have been identified, you must take reasonable steps to eliminate, decrease or control these risks.

If these risks cannot be removed, decreased or managed, you will need to think about whether you can vary their working hours or change their working conditions on a temporary basis.

If this is simply not possible, you may need to offer them any available and suitable alternative work that is not substantially less favourable than the employee’s existing terms and conditions.

If this is not feasible, then you may need to suspend the employee from work with full pay for as long as needed to safeguard her health and safety and that of her child.

Remember that depending on the circumstances, refusing to permit a woman to express milk or to adjust her working conditions to allow her to continue to breastfeed her baby may constitute unlawful sex discrimination.

Case law

In 2016, two employees successfully succeeded in their claim regarding the right to express milk at the work.

In this case, the two claimants were employed by EasyJet in cabin crew roles. Easyjet has a roster system in operation – there are no limits to the length of day that a cabin crew member can work.  Both new mothers submitted flexible working requests for their rostered hours to be limited to eight hours as per the advice of their GP to enable them to continue breastfeeding. They cannot express on board an aircraft. Their requests to reduce their working day were rejected and they raised formal grievances.

Easyjet offered ground duties for six months, but they refused to extend this any further as they deemed it as the employee’s choice.

The employees argued that working the standard 12 hours would significantly increase the risk of mastitis, milk stasis and engorgement and the airline’s approach to rostering generated a particular disadvantage to women.

Easyjet stated that they refused the requests as they could not guarantee that the employee would only work for 8 hours a day because delays were possible meaning longer hours. The airline also said they had tried bespoke rosters with limited hours in the past, but they had not worked out.

The Employment Tribunal found:

• Despite the fact that neither of the employees had contracted mastitis, milk stasis, and engorgement, there was a risk of this occurring.

• Easyjet had not conducted a risk assessment, ignored the advice of different GPs and not acquired occupational health reports for the employees.

• Easyjet had not been able to present persuasive proof that bespoke rosters would create operational difficulties.

• Employees had to either work their normal roster which effectively meant they had to cease breastfeeding or they continued but suffered a disadvantage. The Tribunal concluded that Easyjet’s refusal to permit them to work restricted hours constituted indirect sex discrimination.
• As they were unfit to work over eight-hour shifts, they should have been offered ground duties at a much earlier stage and if these were not available, they were entitled to be suspended on full pay.

Note that Tribunal decisions are fact-specific and this is a first-instance decision; therefore it is not legally binding on other Tribunals.

Best practice

When making a decision, the Tribunal considered the ACAS Guide on accommodating breastfeeding employees in the workplace.

In brief, it says that:

• Employers should discuss with their employees what can be done to accommodate breastfeeding in the workplace. You should talk to other employees that will be affected by the requests and explain how their role will be adjusted temporarily.

• You should consider providing them with a private and clean place to breastfeed and a clean and secure fridge to store milk. Remember, a toilet is not an appropriate place to express milk, but you may have a disused office or area which can be used.
• If appropriate, consider the possibility of giving them additional breaks or extending current breaks.

How we can help you

Our Health & Safety Consultants can visit your premises on a scheduled basis to review your systems and carry out a comprehensive General Risk Assessment. They can also provide you with bespoke documentation such as a Health & Safety Policy, Handbook and Action Plan to ensure that you are complying with the law.

Our Employment Law Advisers can help you with any HR or Employment Law challenge, including dealing with employees returning from maternity leave.

Contact us to find the range of services we can offer your organisation.