Anne Sammon considers the important issues employers should be aware of when dealing with requests for breastfeeding in the workplace.
With the question of whether MP’s should be able to breastfeed in the House of Commons in the papers, employers may be wondering what rights employees have in this regard.
Whilst the Equality Act 2010 provides that women have the right to breastfeed in a public place. This would include shops, restaurants, hotels, hospitals and other public buildings, but will not cover the majority of private workplaces.
There is, therefore, no absolute right for most employees to be able to breastfeed in their workplace, however there are two legal issues that employers should be aware of:
(1) The Equality Act 2010 provides that it is unlawful to treat a woman less favourably because she is breastfeeding, and
(2) Health and Safety legislation: as set out below, employees may use this to frame an argument that they have a right to breastfeed, but in addition, employers need to consider whether they need to take any particular steps to protect the health and safety of a breastfeeding mother.
Health and Safety arguments
There has been a suggestion that an employee could run the argument that, as breastfeeding for the first 12 months of a baby’s life has been shown to have positive benefits for the health of both the mother and her child, an employer who refuses to allow a woman to breastfeed is therefore putting the health of that employee and her child at risk. Such an argument is untested in the courts, however, given the focus on these types of issues, it is likely that a straight refusal to allow a woman to breastfeed (or to express milk) could attract both a legal challenge and adverse publicity.
How should employers deal with requests?
First of all, it is important to note that very few employees make this type of request. The majority of mothers in the UK have stopped breastfeeding exclusively by four months (a UNICEF study showed that the rate was around 12% at four months and had fallen to 1% by six months).
Where a request is made, the employer should consider it carefully and only refuse it where there is a proper basis for this. By way of example, if an employee in a normal office environment were to request to be able to take breaks every four hours to express milk, it would be difficult to see how it would be reasonable to object to this. If the employee requested that her partner bring in her baby in an environment where there is confidential information being discussed, which the partner might have access to by virtue of him being in the office, then an employer might be able to justify a denial of this request.
Ideally, the employer should meet with the employee to explain the rationale for any refusal and to see whether it would be possible to reach a compromise. (In the above example, it might be that feeding would take place in part of the office where confidential information is not accessible).
All decisions should be properly documented and, if in doubt whether a reason might be discriminatory, legal advice on the specific circumstances should be taken to avoid creating disclosable documents that might be unhelpful in defending a discrimination claim.
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