Legal Background - Indirect Discrimination
Section 19 Equality Act 2010 (EqA 2010) provides that a person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which is apparently neutral and applies equally to others but which puts or would put those who share B's protected characteristic at a particular disadvantage.
An employer can justify a claim for indirect discrimination if it can show that the PCP is a proportionate means of achieving a legitimate aim.
Facts
Easyjet operated a PCP whereby 'crew members fly to the flying patterns they are rostered; there is no restriction on the length of the day that a crew or staff member can complete; crew members may be required to work more than eight hours continuously'.
Two mothers (the Claimants) who worked as flight attendants for EasyJet had recently returned from maternity leave and were still breastfeeding.
The Claimants requested to limit their duty days to a maximum of eight hours, in order to allow them to express milk either side of their shifts. Medical evidence was provided to show that the Claimants could develop mastitis if not provided with sufficient adaptations either by way of shortened shift patterns or by providing suitable facilities to express milk at work (the aeroplane toilets were not regarded as a suitable option).
The requests were refused by Easyjet.
The legitimate aims relied upon by Easyjet included avoiding flight delays and cancellations, ensuring compliance with legal and regulatory requirements and avoiding individual rostering arrangements.
Easyjet sought to justify the PCP as a proportionate means of achieving those legitimate aims for various reasons including that disruption is common and not within the airline's control and that bespoke rostering arrangements had caused the airline significant difficulties previously.
Following periods of sickness absence and unpaid leave, Easyjet did eventually give temporary ground duties to the Claimants.
The Claimants subsequently brought claims against EasyJet for indirect discrimination and for breaches of Easyjet's obligations to offer alternative work as an alternative to suspending on maternity grounds (see section 68 Employment Rights Act 1996 (ERA)).
Employment Tribunal (ET)
Both Claimants succeeded in their claims for indirect sex discrimination.
The ET found that the PCP placed the Claimants at a particular disadvantage and that the approach of Easyjet was a disproportionate way of dealing with the stated legitimate aims. Easyjet were criticised in this case for not being able to back up their claims whilst at the same time ignoring medical evidence in support of the Claimants.
In relation to section 68 ERA, the ET found that as the Claimants were unfit for work on maternity grounds (which includes breastfeeding) they should have received full pay throughout the period leading up to the provision of alternative ground work..
The ET also recommended that Easyjet discount the Claimants' absences for absence management, redundancy, disciplinary and sick pay purposes and that the Claimants should have any holiday that they had taken credited back.
Best Practice
This case highlights the need for employers to treat breastfeeding employees with care. Employers should think carefully before engaging in correspondence with their employees to ascertain how long they expect to continue breastfeeding and should make considerable efforts to try and ensure that they are provided with the appropriate time and facilities to express milk.
This case also serves as a useful reminder for employers take due regard of any medical evidence supplied by employees and to ensure that any reasons as to why a PCP is considered to be a proportionate means of achieving a legitimate aim can be substantiated in evidence.