1st to 7th August is world breastfeeding week.
Ask most people what pregnant women and new parents' workplace entitlements are and many people will be able to give a fairly accurate answer. Maternity leave, maternity pay and the right to return to work are likely to be included in their response. But ask what a breastfeeding woman's entitlements are and most people are unlikely to know.
The aims of world breastfeeding week, supported by the World Health Organisation and UNICEF amongst others, include galvanising action on improving working conditions and relevant support for breastfeeding. As a developed country, the UK has particularly poor statistics on breastfeeding, and at least some of that is reportedly due to women giving up because of the need to return to work. A survey published in July 2023 revealed that 90% of breastfeeding mothers had to use a toilet or were not provided with a suitable space to express at work.
What workplace rights do breastfeeding employees have?
The answer to that is very little. There is no statutory right for employees to be given facilities for breastfeeding or expressing milk at work. However, there is very good guidance from the Health and Safety Executive that recommends that employers should be providing a private, clean environment for expressing milk and a fridge for storing it.
In addition, the Workplace (Health, Safety and Welfare) Regulations 1992 ("the 1992 Regulations") require an employer to provide somewhere for a breastfeeding employee to rest, and this includes being able to lie down. While there is no legal requirement to conduct a specific risk assessment for an employee who has notified of her intention to breastfeed when she returns to work, it would be good practice for an employer to do so.
What are the consequences of failing to support breastfeeding women?
Obviously some employees may end up feeling they have no option but not to return to work. That means employers losing valuable members of staff and incurring the costs involved in recruiting and training replacements. It may also result in tribunal claims. There is very little case law on when a failure to support a breastfeeding woman can amount to discrimination. However, in 2016 two claimants who worked shifts as cabin crew for Easyjet made successful indirect sex discrimination claims. This related to the airline's refusal of their flexible working requests that were made to keep their working hours short enough to allow them to continue to express milk and breastfeed.
More recently, in 2022, an employee brought a successful claim for harassment when her employer failed to provide a private room where she could express. She had been left with the only options being either expressing in her car, which was parked in a school playground, or in the toilets. Somewhat surprisingly the direct sex discrimination aspect of her claim was unsuccessful, but it is quite possible that if another employment tribunal hears a similar case in future the outcome would be different.
What else can an employer do?
Firstly, employers need to ensure they are aware of the, admittedly limited, legal requirements set out in the 1992 Regulations. Following recommended good practice, including carrying out appropriate risk assessments and the provision of facilities for breastfeeding employees, is also important. Creating a breastfeeding policy (or amending a maternity related policy to include it) is an effective way of enabling an employee to feel comfortable starting a conversation about an intention to continue breastfeeding on their return to work. Our experience is that very few employers have such a policy.
From both a public health point of view and a business point of view, employers will want their staff to return to work happy and healthy. Failure to provide appropriate accommodation for expressing milk can detrimentally impact on an employee's physical and mental health. Conversely, supporting that employee to maintain breastfeeding will encourage them to return and remain with the business. Given the benefits to the child's immune system that breastfeeding can have, it can also mean that the mother needs to take less time off work to deal with sick child.
More information for employers on accommodating breastfeeding employees in the workplace is available from Acas here. Information for employees on continuing to breastfeed when you return to work is available from Maternity Action here.
The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers. Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.