This week marks the start of World Breastfeeding Week which is celebrated around the world between 1^st and 7^th August each year. Returning to work after maternity leave can be a difficult step to take. Add to the mix if the mother is breastfeeding or expressing milk then this can increase the stress and worry surrounding coming back to work.

Jess Hall, advo HR Consultant, takes a closer look at the legalities and responsibilities

If you had a new mother who is due to return to work soon and informed you they are intending to continue breastfeeding or will need to express during working hours, would you know what your obligations are? We will be looking at these in more detail below in light of a recent case where a teacher was forced to express breast milk in ‘dirty’ toilets in which a Judge states the teacher was victim of harassment related to her sex.

In the above case, the teacher returned from maternity leave in July 2020. She was forced to express milk in both the car park with risk of being seen by pupils and others and in the bathroom whilst eating lunch as the school did not provide suitable facilities for expressing. Prior to returning from maternity leave, the employee confirmed in writing that she needed access to a room to enable her to express regularly.  Indeed, she did so on a number of occasions. The school did not provide suitable facilities for women to express milk whist at work. The Employment Judge, Miller, concluded that the school’s conduct had the effect of “creating a degrading or humiliating environment” for the teacher and this amounted to harassment related to her sex.

In light of the above, what obligations do you have as an employer? There are several legal obligations to be aware of. They are as follows:

• Employers are required to ensure there is a space for breastfeeding mothers to lie down and rest if they need to.
• Those who have been employed continuously for over 26 weeks can put in a request for flexible working, to amend their hours to accommodate breastfeeding and/or expressing. This may mean reducing hours, changing when hours are worked, changing from night shifts to day shifts or requesting to change their place of work. These can be permanent or the employee may request this on a temporary basis to cover the period of time in which they intend to breastfeed and/or express. Serious consideration must be given to each request and there must be good business reasons to refuse such a request. This could be seen as indirect sex discrimination if refused without good reason and this results in the mother having to cease breastfeeding.
• If a risk assessment highlights any concerns, consider what adjustments to working conditions or hours and/or breaks can be made. If nothing can be done, consider offering suitable alternative work on the same terms and conditions. If there is no suitable alternative work then there may be a requirement to suspend the mother temporarily from work on full pay until the health and safety issue or risk has been resolved or removed. This should always be a last resort.

There are other steps employers can take to be as supportive as is practically possible. This may include:

• Allowing the mother to take breastfeeding breaks at work. There is no obligation to do so, however, you must ensure that you do not treat any employee unfairly because they are breastfeeding and/or expressing. You also have an obligation under the Equality Act 2010 to assess and take action on any health and safety risks. If not, this could be considered sex discrimination. By refusing to allow breastfeeding mothers to take breastfeeding breaks at work could lead to health issues such as mastitis.
• As mentioned above you legally have to provide a space for breastfeeding mothers to rest in. However, employees can request a suitable private space that they can use to breastfeed or express milk whilst at work, washing facilities and a fridge in which to store the expressed breast milk. Guidelines specify the space should be a clean, private, comfortable room with a lockable door. A toilet or toilet cubical is not to be recommended!
• Ensure, where possible, you are being as supportive as you can. The employee will then feel supported and more likely to return to work: the employee would be more productive and happier in their work, which usually means an increase in satisfaction at work.

Employees should inform employers in writing if they intend to continue breastfeeding when they return to work. It is advisable that this is before they return to work to enable you to have a conversation with those who are breastfeeding to discuss if there are any requirements that need to be looked into. This should allow the employer sufficient time to consider any flexible working applications the employee may make and to carry out a risk assessment to establish any specific risks to the mother whilst breastfeeding at work that need to be addressed. Risk assessments should be documented and any concerns or risks reviewed with appropriate action taken.

Whilst this article focuses on the rights of the breastfeeding mother, it is important to note that there are other things to note for any new mothers returning to work regardless of how they chose to feed their new born(s):

• All employees with 26 weeks service have the statutory right to request flexible working
• It is unlawful to dismiss, discriminate against or harass a worker because they are a new mother.
• An individual risk assessment should be carried out for new mothers who have given birth in the last 6 months or are currently breastfeeding. The risk assessment must be reviewed regularly and make any necessary adjustments if there are any significant changes to your workers’ activity or workplace with a written record of your findings and share these with your employee and your H&S representative if you have one. If risks are found, please seek specialist HR advice support to see what action needs to be taken to control, minimise or remove the risk to the new mother.

Employees who are pregnant or have just returned to work are protected by complex legislation and it is easy to miss a step in the requisite processes and the HR team at advo would be more than happy to help you with any question in relation to this or any other employee matter.