…A conversation that many of us would positively avoid as we feel it is such a personal and intimate bonding time between mother and child. However as an Employer this is a topic that needs to be discussed. Whilst having Policies with regards to breastfeeding in the workplace and providing facilities for breastfeeding can be relatively easy for large companies to put in place, it can pose more of a challenge for small businesses. Despite this, there are still ways that it can be accommodated , making for a positive experience for individuals returning from Maternity Leave, and Employers looking to do the best for their Employees.
This month’s blog post will be a Q&A, comprising some of the frequently asked questions from Employers when it comes to the sensitive topic of breastfeeding at work.
Q: What is the law on breastfeeding in the workplace?
A: The law requires Employers to provide a private place for breastfeeding Employees to lie down and rest. However, it doesn’t require an Employer to grant paid breaks for breastfeeding or expressing milk.
Q: How does the Employee request it?
A: In the first instance, it is good practice for Employers to establish with the returning mother if breastfeeding or expressing milk, while at work, is a requirement to facilitate their return, post Maternity Leave. This may be discussed during the Employee’s KIT days, or at another time convenient to both parties, to help establish what can reasonably be done to ease their transition back into the workplace following their period of Leave.
Beyond this, Employees wishing to breastfeed at work should notify you in writing. On receipt of this, you should carry out a workplace risk assessment and make all reasonable efforts to remove any potential health and safety risks.
Alternatively, if the Employee wishes to continue breastfeeding but does not want to do so in the workplace, they may choose to request a flexible working arrangement. However, this adjustment would result in a permanent change to their Employment Contract unless clearly and formally specified otherwise, so it is important to clarify whether they want to make it a temporary adjustment, or a permanent change to stay in place beyond the breastfeeding period.
Q: If it’s not a legal requirement; do I really have to provide for it?
A: While it is not a legal requirement, Employers are still obligated to operate in accordance with health and safety, flexible working and discriminations laws and Regulations.
Q: What If I can’t afford to give the time off?
A: You must be able to prove that you have explored every possible avenue, including discussing ideas with the Employee, for allowing them to breastfeed or express milk at work, within the essential parameters of hygiene, health and safety, and privacy, alongside the needs of the business and other Employees who may be affected by the adjustments.
While this may not present a perfect solution for the Employee, you will leave them in no doubt that you have done all that you can. This will reduce the risk of discrimination (and potential harassment) claims, while also showing a Tribunal Judge (should it come to that) that you considered all reasonable options prior to concluding that the request could not be fulfilled.
Q: I understand they’ll need a private space. What would this entail?
A: A breastfeeding Employee will need a private and hygienic space, with a lockable door. This could be an unused office space, or an area that can be securely screened off. In addition, Employers could provide a fridge or cold space for expressed milk to be stored safely and hygienically.
Q: Can I offer the ladies’ toilets as an option?
A: No, not at all. The use of toilets for breastfeeding poses a hygiene risk, and can lead to humiliation for the breastfeeding Employee.
In the recent case of Mellor V The MFG Academies Trust, Ms Mellor, a teacher, had asked her Employer numerous times for a room in which to express milk whilst at school. A room was not provided and Ms Mellor had to express at lunchtimes, either in her car in possible view of students, or sitting on the floor of the toilets while also trying to eat her lunch (as her Employer had not provided her any other time). The Tribunal found that Ms Mellor was a victim of harassment relating to her sex.
Q: What if I don’t have a suitable space?
A: If you have given the request sufficient consideration, and are still unable to provide an appropriate space, have a conversation with the Employee to see if alternative arrangements are available.
One solution may be to allow them an extended lunch break on a temporary basis, allowing them to go home or to their child’s nursery, to breastfeed or express milk.
Alternatively, there may be another business in the building or even next door that may be happy to come to an arrangement to provide a secure and hygienic space for the Employee at regular intervals, should they have this.
Q: How do I broach it with my other Employees?
A: From an operational standpoint, you’ll need to strike a balance between accommodating the needs of a breastfeeding Employee, and those of any other Employees whose roles may be affected. You shouldn’t invite disharmony amongst Employees who feel that their workload may increase significantly to accommodate breaks granted to a colleague.
Make it clear that adjustments will be temporary, and wherever possible, ensure that the extra workload does not fall to just one other Employee.
Additionally, providing a private and secure space for the breastfeeding Employee can help to prevent the potential for any comments, banter and even offensive language from other Employees. It is important to guard against such commentary as this can amount to unlawful harassment under the Equality Act 2010.
Q: Can I set a fixed period for breastfeeding?
A: No, that would be inadvisable. An Employee may plan to breastfeed for a long time, only to find that their body has other plans and the time is cut short. Conversely, another Employee may plan to breastfeed for a short while, but later discover they need to continue for longer (i.e.: baby cannot digest formula feed).
You can, however, invite the Employee for regular reviews of how their arrangement with you is going, and whether they are in need of any adjustments. You will likely get a sense from these meetings, if not direct clarification, as to when the Employee plans to cease the arrangement.
Conclusion
While Employers have a duty of care to the health and safety of breastfeeding Employees, there is no specific law that tells Employers to allow those Employees to actually breastfeed or express milk in the workplace. However, refusing or obstructing requests to do so, without genuine reasons why, can run the risk of inviting discrimination or harassment claims.
As with many areas of Employment Law, this can be a very tricky and sensitive topic to manage. If you need any advice or support in this regard, please do not hesitate to contact us.