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Can failure to provide facilities to express breastmilk amount to sex discrimination and harassment?
The Employment Tribunal (ET) in the case of Mellor v MFG Academies Trust considered whether the failure to provide a facility for expressing breastmilk at work amounted to direct and indirect discrimination. The ET was also asked to consider whether this amounted to sex harassment.
Ms Mellor (“the Claimant”) worked as a teacher at MFG Academies Trust (“the Respondent”). In January 2019, the Claimant returned from maternity leave. The Respondent permitted her partner to bring her baby to the school to breastfeed. The Claimant was also provided a room to feed her child following a request for this facility. This room became unavailable, and she was offered an alternative private room, but the Claimant said they were weaning her baby and she would use the toilets “if I get a bit full”.
The Claimant became pregnant for a second time and commenced a period of maternity leave. In March 2020, the Claimant advised the Respondent that she would require a private room to express breastmilk when she returned to work. In June 2020, she reiterated her need for a separate room to express milk from September onwards. The Claimant again requested a suitable room in discussions when she returned to work.
No such room was made available, and it was accepted in evidence that the Claimant was expected to request a room. The Claimant went off sick with debility shortly after returning to work. It was also accepted in evidence that the Respondent was made aware that the Claimant believed this was caused by mastitis and that this had been contributed to by her inability to express during the school day.
Following her return to work from sickness, the Claimant began to express in either the school toilets or her car. Due to her having a 25-minute lunch break and it taking 20 minutes to express, she had to eat her lunch at the same time. The Claimant would often use the toilet because her car was too cold, and she was concerned about being seen. The Claimant would generally sit on the toilet floor to express. Sometimes the Claimant did not have time to express and would experience leakage during lessons.
The Claimant brought claims of direct and indirect sex discrimination and sex harassment.
Direct discrimination occurs where a person (A) discriminates against another person (B) if A treats B less favourably than A treats or would treat others because of a protected characteristic.
Indirect discrimination occurs where A applies a provision, criterion or practice (PCP) to B, B has a protected characteristic, A also applies the PCP to those who do not share B’s protected characteristic, the PCP puts or would put a person with this protected characteristic at a particular disadvantage, the PCP puts or would put B at that disadvantage and A cannot show the PCP to be a proportionate means of achieving a legitimate aim.
Sex based harassment occurs where A engages in unwanted conduct related to B’s sex which has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. In deciding whether the conduct has this effect, the perception of B, the circumstances of the case and whether it is reasonable for the conduct to have that effect must be considered.
The Claimant’s claim of sex harassment was successful, but the other claims were rejected.
The ET was referred to section 13(6)(a) and (7) of the EA 2010. The former provision dictates that it is direct sex discrimination to treat a woman less favourably because she is breastfeeding. However, this protection does not apply to workplace by virtue of section 13(7). The ET concluded these provisions were irrelevant to the claim but clarified that this did not mean that less favourable treatment in the workplace because she is a breastfeeding woman would not constitute direct discrimination, but that actively breastfeeding women in the workplace are not covered by the specific prohibition which applies in other establishments (e.g. a university or a shop).
The ET rejected the claim of direct discrimination. The Claimant’s hypothetical comparator was a man who required a private space to administer medication (for example an insulin dependant diabetic). The Respondent conceded that facilities would have been made available for such a man, but the Tribunal rejected the claim on the basis that the reason for less favourable treatment was the school’s incompetence, not the Claimant’s sex. The ET could not conclude on the evidence that the less favourable treatment was because the Claimant was a breastfeeding woman. In the alternative, the direct discrimination claim would have failed because the conduct relied upon was also conduct amounting to harassment and, therefore, could not be considered a detriment (section 212(1) EA 2010).
The ET dismissed the indirect discrimination claim because, despite the failure to provide facilities amounting to a PCP, a comparative disadvantage between men and woman could not be established because the PCP could not be meaningfully applied to both. As the PCP could not be applied to a person who did not share the Claimant’s protected characteristic, the claim of indirect discrimination could not be sustained.
However, the claim of sex-based harassment was accepted. The ET concluded that the Claimant was essentially forced to express in a toilet or her car. If she did not take this option, she would experience leakage which was embarrassing and could potentially develop mastitis. The conduct of the Respondent was unwanted and had the effect of creating a degrading or humiliating environment as expressing in toilet was, as the Claimant submitted, “unhygienic and disgusting” and the prospect of being witnessed in her car was humiliating. The ET concluded that the conduct was related to the Claimant’s sex because the need for privacy was a result of the intimacy of the activity because the Claimant was a woman and the risk of exposure, and the duration of the activity was inherently related to the Claimant’s sex.
While this is a first instance decision, it highlights that despite the treatment in question being inherently related to a person’s protected characteristic, the tests for direct and indirect discrimination will not always be made out. In this case, the harassment claim was successful, but it is not impossible to imagine a different set of facts which do not produce a degrading or humiliating environment, meaning a harassment claim may not be viable.
There is no statutory right for the provision of facilities for breastfeeding or expressing milk at work, but employers should be mindful of HSE guidance which recommends the provision of such facilities which are private and clean for expressing milk, as well as a fridge to store the milk.
Case reference: Mellor v MFG Academies Trust ET/1802133/21
*This article is for information purposes only. You should seek specific legal advice on any legal issues.*