An employment tribunal has ruled on whether an employer’s failure to provide a private space for an employee to express breastmilk at work, amounted to direct or indirect sex discrimination, or harassment related to sex.
The claimant was a teacher, who on return from maternity leave was permitted to breastfeed her baby in a designated room. She later requested a room in which she could express breastmilk, but suitable facilities were not provided.
Following a subsequent pregnancy and further period of maternity leave, the claimant again sought a private room for the purpose of expressing breastmilk. She was not provided with a suitable room, so she expressed in either the school toilets or her car, during her lunch break and while eating her lunch. She brought claims of direct and indirect sex discrimination and sex-related harassment against the school.
Employment tribunal decision
The tribunal upheld the claim for sex-related harassment, but dismissed the claims for direct and indirect sex discrimination.
The tribunal rejected the claim for direct discrimination on the basis that the school’s failure to provide suitable facilities was due to their administrative incompetence rather than because the claimant was a woman. This was despite the school’s admission that would have provided suitable facilities to a hypothetical male comparator with diabetes who required private space to inject insulin.
The indirect discrimination claim was likewise rejected, as the tribunal held that the ‘provision, criterion or practice’ (PCP) of not providing suitable facilities for expressing breastmilk did not place women at a particular disadvantage compared with men, who would have no interest in the provision of facilities for expressing breastmilk. The PCP must be capable of being meaningfully applied to both men and women for a comparative disadvantage to arise.
The tribunal was, however, satisfied that in being forced to use the toilets or her car to express breastmilk, the claimant had been subjected to harassment within the statutory definition. It was unwanted conduct, with the effect of creating a degrading or humiliating environment. She found expressing in the toilets unhygienic and disgusting, and expressing in the car with the risk of a pupil walking past was potentially humiliating. The tribunal was satisfied that the conduct was related to the claimant’s sex; the need for privacy arose from the intimate nature of the activity and because the claimant is a woman.
Consequences of this decision
As a first instance decision of the employment tribunal it is not binding on other tribunals, meaning that a different tribunal may reach a different conclusion on the same (or similar) facts. It is somewhat surprising that the claimant only succeeded in her claim for harassment, and if the decision is appealed it may well be overturned by the Employment Appeal Tribunal.
Note, however, that the provisions in the Equality Act 2010 explicitly protecting breastfeeding mothers against direct discrimination do not apply to the workplace context, and only apply when a woman is actually carrying out the physical act of breastfeeding, not generally to breastfeeding mothers. There is no statutory requirement to provide facilities for breastfeeding or expressing milk at work, but HSE guidance recommends that employers should provide such facilities and as this case demonstrates, employers who do not provide facilities may find themselves subject to a discrimination claim.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2022.