Breastfeeding – what are your rights in the workplace?

 

Olivia, Portrait Group,

Breastfeeding – what are your rights in the workplace?

Article by Louise Rogers, Senior Associate.

 

What does “breastfeeding” mean?

It covers both feeding the baby and expressing milk.

What are an employer’s obligations towards breastfeeding employees?

All employers have a duty to protect the health and safety of pregnant and breastfeeding mothers in the workplace (regulation 16(2) of the Management of Health and Safety at Work Regulations 1999). This involves assessing the risks to its breastfeeding employees and doing what is reasonably practicable to control those risks.

Employers are required to provide suitable facilities for breastfeeding mothers to rest (including facilities to lie down) and to provide adequate rest and meal breaks (regulations 25(4) and (5) of the Workplace (Health, Safety and Welfare) Regulations 1992).

There is no legislation which requires the provision of facilities for breastfeeding itself. However, the HSE (“Health and Safety Executive”) guidance recommends that other facilities (such as a private, clean environment, other than toilets, for expressing milk and a fridge for storing it) should be provided.

It is direct discrimination to treat a woman less favourably because she is breastfeeding (section 13(6)(a) of the Equality Act 2010).

There is no statutory right to time off work for breastfeeding however; the EHRC (“Equality and Human Rights Commission”) Code provides that employers should try to accommodate employees who wish to take time off to breastfeed.

What does EU law say?

In the same way as England & Wales, discrimination on grounds of sex with regard to employment and working conditions is prohibited (Articles 1 and 2 of the Equal Treatment Directive). This includes less favourable treatment of a woman related to pregnancy or maternity leave.

Member states must take measures to protect the health and safety at work of pregnant or breastfeeding workers, and those who have recently given birth (the Pregnant Workers Directive).

Employers are required to carry out a risk assessment where a pregnant or breastfeeding worker is exposed to a potential risk from working conditions.

Recent developments

The recent case of Otero Ramos v Servicio Galego de Saude has highlighted the importance of an employer’s obligations towards breast feeding employees.

 What did the case involve?

The Claimant was a nurse in the A&E department of a Spanish hospital. She notified her employer that she was breast feeding and that she was concerned her working conditions could impact her lactation. In particular, the risks associated with working under a complex shift system and her potential exposure to ionising radiation, healthcare associated infections and stress.

As a consequence, the Claimant requested that her working conditions be adjusted and protective measures be put in place. Her employer rejected her request without any substantiated explanation as to how its conclusion had been reached. It simply issued a report confirming that her role did not pose any risk to breastfeeding her child.

The Claimant challenged this decision in the Spanish Courts on the basis that the risk assessment breached the Equal Treatment Directive. In support of her claim, she provided a letter from her line manager, a senior consultant at the hospital, stating that the work of a nurse in A&E posed physical, chemical, biological and psychosocial risks to a breastfeeding worker and to her child. Her application was again dismissed.

The Claimant appealed against that decision and the Spanish Appeal Court referred the matter to the European Court of Justice for guidance.

Decision

The ECJ held that if a breastfeeding mother can show that a risk assessment was defective or not done, it constitutes less favourable treatment of a woman related to pregnancy or maternity and gives rise to a prima facie case of discrimination on grounds of sex.

It is for the employer to prove that the risk assessment has been conducted in accordance with the EU directive and that there had, therefore, been no discrimination.

Points to note

This case highlights how important it is for employers to carry out a thorough risk assessment in respect of all breastfeeding employees. As the potential risks to a pregnant worker could be different from a worker who is breastfeeding it would seem sensible to carry out separate risk assessments for both expectant and new mothers.

This judgment also calls into question section 13(7) of the Equality Act 2010 which expressly prevents a woman from bringing a claim for direct sex discrimination under UK law where she has suffered a detriment because she has breastfed at work. A woman in those circumstances can only bring a claim for indirect sex discrimination.

Practical tips

Decisions of the ECJ are binding on all courts and tribunals in the United Kingdom. Therefore, in order to minimise the risk of allegations of discrimination in light of the above judgment, employers should:

  1. Update their health and safety policies to confirm that risk assessments will be undertaken in respect of all breastfeeding employees and asking those employees to make themselves known (as not all employers will be aware if an employee is breastfeeding);
  2. Carry out detailed risk assessments in respect of any breastfeeding employees. This can either be done by a designated and trained Health & Safety Officer or an external consultant.
  3. Produce a thorough report after the risk assessment. If it is assessed that the breastfeeding employee’s work does not pose a risk, the reasons for this should be recorded in writing and fully substantiated.
  4. Review any risks at regular intervals.

Should you require any advice or assistance regarding this article or any other aspect of employment law please contact Louise Rogers in our Employment Law Department at louise.rogers@dwfmbeckman.com or by telephone 020 7408 8888.