The employment tribunal decision in McFarlane and another v. easyJet Airline Company Ltd ET/1401496/15 & ET/3401933/15 is a reminder to employers to accommodate female employees who are breastfeeding.

Facts

On returning from maternity leave, two female cabin crew members made flexible working requests to easyJet as they were breastfeeding and unable to express milk during their shifts. The women requested that they either not be rostered for longer than eight hours at a time or that they carry out ground duties, to enable them to express milk between shifts. easyJet refused their requests, as expressing milk was “a choice”. It refused to limit their shifts to no longer than eight hours. easyJet decided this despite receiving advice from four different GPs that this could cause the crew members to suffer mastitis (painful inflammation of the breast tissue).

The employees issued claims in the Employment Tribunal alleging that they had suffered indirect sex discrimination and that easyJet failed to provide suitable alternative work.

Decision

The Tribunal found that easyJet's actions amounted to indirect sex discrimination. In requiring all crew members to work for more than eight hours, easyJet had imposed a provision, criterion or practice (PCP), which put women at a disadvantage compared to men. Under this PCP, the female cabin crew members would have had to either accept financial loss in not taking certain shifts, or they would have to risk mastitis and/or stop breastfeeding.

easyJet argued that it had several legitimate aims which could objectively justify its PCP. The PCP included ensuring that its flights were on time and not cancelled, avoiding having to make individual rostering arrangements, and complying with regulatory requirements.

The Tribunal held the PCP was not justified, and there were no concrete examples of instances where granting longer shifts to crew members had disadvantaged easyJet. When considered against the potential health risk to women who would be required to stop breastfeeding, the Tribunal found against easyJet, stating that its argument had been "speculative".

The Employment Tribunal held that easyJet should have either offered the claimants shorter shifts, found them alternative duties or suspended them (while still receiving full pay). The claimants were awarded £8,750 and £12,500 (plus interest) respectively as compensation for their financial loss and injury to feelings.

Comment

While there is no statutory right to take time off for breastfeeding, or to express milk, failure to provide suitable arrangements to women could be an act of indirect sex discrimination. This decision is therefore a reminder to employers to ensure that they have adequate arrangements in place to accommodate female employees who are breastfeeding.

The Tribunal also held that it was not reasonable for employers to ask breastfeeding employees when they would expect to stop breastfeeding. It should not be an expectation that women will stop breastfeeding when they return to work after maternity leave, and this assumption should not be made.

Practical suggestions for employers

• Imposing a written policy for women who need to express milk while at work.
• Ensuring that existing policies do not discriminate (whether directly or indirectly) against women who are breastfeeding.
• Being aware that women who are breastfeeding need adequate breaks, and that not allowing such breaks may be detrimental to their health. Ensuring that letters from a GP are not ignored.
• Ensuring that women who are breastfeeding have somewhere to rest whilst at work (this is a legal requirement under Regulation 25(4) and 25(5) of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004)).
• Providing women who are breastfeeding with suitable facilities (for example, a private and hygienic place to express milk and a fridge or storage place for milk).
• Being accommodating to reasonable requests for flexible working or additional breaks on a temporary basis. This is unlikely to trigger the need for a new employment contract, as breastfeeding is temporary. If you do not grant a request, ensure that your response is reasonable and that you give reasons for why the request is not granted.
• Consider other suggestions as set out in the Acas guide: "Accommodating breastfeeding employees in the workplace".