Failure to Provide Employee with Facilities to Express Breastmilk Amounts to Harassment
An Employment Tribunal has found the failure to provide a private space for a woman to express breastmilk at work was harassment on the grounds of her sex. However, the employee's direct and indirect sex discrimination claims failed.
What Rights Do Women Have Around Breastfeeding at Work?
There is no statutory right to be provided with facilities to breastfeed or express milk at work. However, the HSE has produced guidance recommending employers should provide facilities such as a private, clean, environment other than toilets for expressing milk, and a fridge for storing it.
What Happened to the Employee in this Case?
In the case of Mellor v MFG Academies Trust, the claimant, Ms Mellor, was a teacher at the Trust. On her return from maternity leave, she requested a room to use to express milk. She was not provided with any facilities and ended up expressing in her car or in the toilets. She had a 25 minute lunch break and expressing took 20 minutes, meaning she would generally eat her lunch on the floor of the toilets whilst expressing. She brought claims of direct and indirect sex discrimination and harassment against the Trust.
Harassment or Sex Discrimination (Or Both)?
In respect of Ms Mellor's harassment claim, forcing her to express in the toilets or carpark was unwanted conduct related to her sex. It had the reasonable effect of violating Ms Mellor's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The harassment claim succeeded.
Both the direct and indirect sex discrimination claims failed, although it is possible Ms Mellor could seek to appeal both outcomes. On the direct sex discrimination claim, the Tribunal found Ms Mellor had suffered less favourable treatment, but that this was because of the Trust's incompetence rather than because of her sex.
On the indirect sex discrimination claim, the Tribunal found the practice of failing to provide facilities to express breastmilk was a provision, criterion or practice (PCP). In order for the claim to succeed, the PCP needed to put Ms Mellor at a particular disadvantage compared to men. The Tribunal held that as biological males do not breastfeed or express milk, the PCP did not put women at a disadvantage compared to men. It reasoned that denying a man facilities to express milk is effectively meaningless so no comparative disadvantage could arise.
What Can Employers Learn from This Decision?
This case does not mean that a failure to provide facilities to breastfeed or express milk can never be direct or indirect sex discrimination. This is a first instance decision which might be subject to appeal. In addition, on slightly different facts or at a different Tribunal, it is possible a different outcome could have been reached on both claims.
Employers should instead strive for best practice in order to support women to return to, and remain in work following maternity leave. Where such support extends to providing facilities to express milk, requests should be accommodated in line with the HSE's guidance.