In the recent case of McFarlane and another v easyJet Airline Company Limited, an Employment Tribunal has ruled that easyJet’s failure to accommodate the needs of two employees who wished to continue breastfeeding amounted to indirect sex discrimination. Protection for breastfeeding mothers derives mainly from health and safety law rather than any specific legislation. Employees may also bring a claim of indirect sex discrimination, for example, if they are refused time off work, flexible working, or suitable facilities for breastfeeding.
However, employers may have a defence if they can show that the alleged discriminatory practice is a proportionate means of achieving a legitimate aim.
Ms McFarlane and Ms Ambacher were employed by easyJet as cabin crew. They each asked if they could have a roster restricted to eight hours so that they could continue to breastfeed on their return from maternity leave. This was the maximum time period recommended by their GPs to enable them to breastfeed either side of the shift and to minimise the risk of mastitis and other health problems. It was not in dispute that the employees could not express on board an aircraft whilst working. EasyJet refused the employees’ requests on the grounds of health and safety due to the risk of flight delays which could result in shifts significantly longer than eight hours. It also claimed that bespoke rostering arrangements for breastfeeding employees would cause too much disruption to other staff.
As an alternative, the two employees requested that their duties be limited to ground duties to allow them to breastfeed. EasyJet eventually agreed to roster them on ground duties for a maximum period of six months, since it considered that breastfeeding beyond that point was a matter of personal choice which the company did not need to accommodate. Supported by Unite, both women brought claims of indirect sex discrimination.
The Employment Tribunal noted that easyJet had ignored the advice of four GPs, and had failed to arrange risk assessments and occupational health assessments. It also rejected easyJet’s argument that bespoke rostering arrangements could not be made, given the very small number of employees involved. The Tribunal concluded that easyJet’s failure to accommodate the employees’ requests for a shorter shift amounted to indirect sex discrimination, and that the correct approach would have been to find them alternative duties, suspend them on full pay or reduce their hours. It also ruled that it was discriminatory to attempt to limit the time period during which the employees could continue to breastfeed. The compensation awarded to the women included awards for injury to feelings of £8,750 and £12,500 respectively.
This decision is not binding on other tribunals. However, it is a reminder to review policies and practices to ensure that breastfeeding mothers are not subject to discrimination. Every effort should be made to accommodate breastfeeding and provide suitable facilities, including agreeing flexible working hours and allowing sufficient rest breaks. Risk assessments should also be carried out to ensure that women are not exposed to potential hazards.