Easyjet: breastfeeding facilities: sex discrimination
The recent Bristol employment tribunal decision in the case of McFarlane and Ambacher v Easyjet Airline Co Ltd has given guidance on the application of the Management of Health and Safety at Work Regulations (MHSWR) in the context of breastfeeding by employees. The case illustrates the application of health and safety law, and employment law in general, in this context.
B and A were female cabin crew members employed by Easyjet .They wished to continue breastfeeding their children after returning to work at the end of their maternity leave. They were advised by their GPs that they should ask for their shifts to be limited to eight hours. There were no suitable facilities for expressing milk on board aircraft. The GPs advised that working longer shifts would increase the risk of the development of mastitis.
Easyjet refused to agree to the requests. It failed to conduct a risk assessment and showed a strong reluctance to create bespoke shift patterns because of possible operational difficulties, given the need to deal with possible flight delays. The employment tribunal found that the treatment of B and A amounted to indirect sex discrimination. It took into account evidence that the company had been able to create bespoke shifts for another crew member who suffered from deep vein thrombosis, and evidence that flight delays were not as common as the company had suggested.
Regulation 16(1) of MHSWR imposes an obligation on employers to carry out a specific risk assessment where women of childbearing age or new or expectant mothers may be at risk from a work process, working condition or physical, chemical or biological agent. New or expectant mothers are defined as women who are pregnant, who have recently given birth or who are breast feeding.
New or expectant mothers may also be suspended from night work if a doctor or midwife signs a certificate stating that such work should be suspended on grounds of the woman’s health and safety.
Regulation 16(2) requires employers to change working conditions or hours if it is reasonable to do so to avoid such risks. If such steps would not be reasonable or would not avoid the risks, regulation 16(3) imposes a requirement to suspend an employee on medical grounds, subject to the employee’s right to be offered alternative work.
If no alternative work is available, the employee has a right to be paid while suspended on maternity grounds. This includes suspending a woman because she is breastfeeding a child. The tribunal in the Easyjet case found that the company had in effect suspended B and A by failing to offer them reduced hours, knowing that they had received medical advice not to accept longer shifts. They were therefore entitled to claim for pay during the suspension.
The tribunal referred to the World Health Organisation paper on Mastitis causes and management which identifies full-time work as a factor influencing the risk of mastitis, because of long intervals between feeds and lack of time for adequate milk expression.