When employees return to work after maternity leave, many will still be breastfeeding. Employers have a legal and moral duty to ensure the working environment supports this. A failure to do so can lead to claims of discrimination or harassment – as seen in the recent case of Gibbins v Cardiff and Vale University Local Health Board. Ms Gibbins was successful in a claim of sex-related harassment which arose from a failure to provide a lock for a room in which she was expressing milk.

Harassment occurs where an employee is subjected to unwanted conduct which the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee. Harassment has to be related in some way to a relevant protected characteristic.

When the Claimant returned from work after having her first child the Respondent failed to provide her with access to a lockable room in order that she could express milk. On one occasion a colleague had walked in on her. The Respondent had told her to prop a chair against the door to stop anyone else coming in and to place a ‘do not disturb’ sign on the door. The Respondent apologised and a lock was eventually provided. However, when she had her second child she was told that the lockable space would only be available at certain times, consequently it wasn’t always available when she needed it. She brought a claim of sex-related harassment. The tribunal held that the actions of the Respondent related to her sex in that they related to breastfeeding. The Claimant had been left feeling worried and anxious as a result of the Respondent’s failure to provide a lock. She also felt belittled. Her claim of sex-related harassment was successful.

Employers should take account of the potential impact of breastfeeding whenever an employee returns to work following maternity leave. A separate, private space should be made available for breastfeeding mothers to use to express. Employees should be provided with somewhere secure and discreet to store expressed milk. Employers should be aware that breastfeeding employees may need additional breaks in order to rest and express milk. In some businesses there are health and safety risks associated with breastfeeding in the workplace. To ensure that these are considered, all employers should conduct a breastfeeding risk assessment when a breastfeeding employee returns to work.

So, what are the risks if employers get it wrong?

  • Direct discrimination – less favourable treatment of a breastfeeding mother will be direct sex discrimination.
  • Sex-related harassment – a hostile or unsupportive environment may amount to harassment (as happened in Gibbins)
  • Indirect discrimination – if an employer has a policy in place that disadvantage breastfeeding mothers, this may be indirect sex or maternity discrimination unless justified.

Members of the HR Inner Circle can access our Breastfeeding Risk Assessment and Return to Work form here: https://members.hrinnercircle.co.uk/the-vault/templates/