The claim by two easyJet employees who wished to continue breastfeeding on their return to work was about more than discrimination. Their success in showing that their treatment by the airline had amounted to indirect sex discrimination hit the headlines, but they were also able to demonstrate that easyJet had been in breach of health and safety legislation.
Lesson 1: long hours can be a risk factor
While is apparent that working with chemicals and other hazardous substances can create additional risks for breastfeeding women, it may not be as widely appreciated that the length of the working day can be a risk factor in itself. In the easyJet case both women had been advised by their GPs that they should not work longer than 8 hours at a stretch, given that there were no suitable facilities for expressing milk on the aircraft, otherwise they would be at an increased risk of developing mastitis.
Lesson 2: remember health and safety duties apply
Employers are required under health and safety regulations to include the risks to “new mothers” as part of their general risk assessment. If specific risks are identified, then an employer is required to take action to avoid such risks if it would be reasonable to do so, including altering working conditions or hours of work.
If there is no reasonable way to avoid these risks, breastfeeding women have a right to be suspended on full pay unless or until suitable employment can be arranged. So while it is true to say that employers do not have an absolute duty to provide suitable facilities for expressing milk, there can be a financial incentive for them to do so, particularly where their employees are expected to work long or unpredictable hours.
Lesson 3: what not to say
ACAS’ guidance on breastfeeding at work already covers these points, but they are worth noting, as they both arose in the easyJet case :
- Don’t seek to impose a firm time limit when making special arrangements to support women who wish to continue breastfeeding. Experience shows it is very difficult to predict when a baby will be weaned, and mothers should not be put under pressure to try to do so.
- Don’t suggest that women can express milk in the toilets. There is an increased risk of infection to both mother and baby unless the facilities offered are suitably hygienic.