Breastfeeding facilities – what are employer obligations?

A recent Employment Tribunal case has highlighted the need for employers to provide breastfeeding facilities or face potential sex-related harassment and/or discrimination claims. Employers often consider maternity rights for employees, but often neglect to consider new mother’s rights upon their return to work.

In the case of Mellor v MFG Academies Trust the Tribunal held that a failure to provide a private space for an employee to express breastmilk at work amounted to sex-related harassment. 

Ms Mellor, a teacher working for MFG Academies Trust, returned to work from maternity leave during the pandemic. Ms Mellor requested in writing, on two separate occasions, that a room be made available to her so that she could express milk for her baby. On her return from maternity leave in 2019 with another child, her employer (the school) allowed her partner to bring their baby into school for the claimant to breastfeed. However, due to the Covid restrictions, this was no longer permitted.

The school failed to provide Ms Mellor with a private room on her second return from maternity leave and she was unable to express milk privately other than in the toilets or in her car. Ms Mellor was had no other option but to express during lunchtime; generally choosing to use the toilets because it was cold in her car, and as it was not private, she was concerned about being seen by other staff and pupils. As her lunch break entitlement was 25 minutes, and expressing took 20 minutes, she was forced to sit on the toilet floor to express whilst she was eating her lunch, which she found to be ‘unhygienic and disgusting’.

Ms Mellor brought claims of direct and indirect sex discrimination and sex harassment against the school. The school claimed, in Defence, that many rooms were available that she could have chosen herself, but they didn’t explicitly state that to her in response to her requests. 

The tribunal found that being forced to express milk in her car or in the school toilets created a humiliating and degrading environment for her. This amounted to harassment, as expressing milk is related to her sex. 

Under Section 26 of the Equality Act 2010, a person harasses another person if their conduct is unwanted, relates to a relevant protected characteristic (such as sex) and which has the purpose or effect (whether intended or not) of:

1. violating the other person’s dignity ; or
2. creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

There does not need to be a pattern of persistent unwanted behavior for it to amount to harassment. Isolated incidents might be considered harassment if the action is demeaning or humiliating to the recipient.

In the above case, the Tribunal found that being forced to express milk in her car or in the school toilets created a humiliating and degrading environment for Ms Mellor. This amounted to harassment, as expressing milk is related to her sex. The Tribunal found against Mellor’s claim for discrimination claims. However, this is something that employers should also be aware of when formulating policies regarding maternity and breastfeeding. 

What are employer obligations in regard to breastfeeding facilities?

There is no specific statutory right to provide facilities for breastfeeding or expressing milk at work. However guidance from the Health and Safety Executive recommends that employers should provide facilities such as a private, clean environment (excluding toilets) for expressing milk and a fridge for storing it. Toilets are not considered to be suitable. If you don’t provide a suitable place, you may be exposing your business to harassment claims. 

This case also highlights that it is not enough to have adequate facilities – you must also clearly communicate their availability. To do so, you should consider having a maternity policy that sets out what breast feeding facilities you have and who the employee should contact for any queries. The policy should also say that you will conduct a risk assessment (in line with HSE guidance) when the employee returns from maternity leave and notifies the employer that she is breastfeeding.

If you require advice on your maternity policy or any other employment advice, please contact our team here.