As mass nurse-ins rage outside Claridges and everyone from Nigel Farage to Princess Michael of Kent opine on the subject, how ready is your workplace to accommodate breastfeeding mothers?
Employers are legally required to provide somewhere for a breastfeeding employee to rest and this includes somewhere for them to lie down. More generally, employers are also required to assess the risks to its employees, including an employee who is breastfeeding, and to do what is reasonably practicable to control those risks.
There is, however, no statutory right to time off for breastfeeding and no requirement to provide facilities for breastfeeding itself.
Earlier this year, Acas published guidance on the topic called Accommodating breastfeeding employees in the workplace.
Acas recommends that employers discuss with employees who are still breastfeeding what could reasonably and proportionately be done to facilitate their return to the workplace – treating such conversations with the sensitivity that the situation merits. Acas also recommends having a policy in place which sets out how requests for changes to working conditions from mothers returning from maternity leave would be considered.
The legal risks
If an employee asks their employer to accommodate their need to breastfeed in the workplace, it is not necessarily discriminatory to refuse that request. Much will depend on how the request is handled. If an employer considers the request objectively, discusses the issue with the employee and can demonstrate that the impact on the business would be such that the adjustment to working practices could not reasonably be made, then an employer will be best protected against indirect sex discrimination claims.
There are two key points to bear in mind: first, if you are going to reject a request do make sure that you have a good reason for doing so; and second, give some consideration to whether you have previously accepted similar requests for temporary changes to work conditions.
It also strikes me that the most obvious time employers are likely to need to consider accommodating breastfeeding is when arranging Keeping in Touch (KIT) Days during maternity leave itself. As with all discussions surrounding KIT days, employers should be careful to balance conflicting considerations, such as the need to be accommodating while also not putting pressure on a mother to return to the workplace at a time when she may not be ready.
Where is the law going?
There have been various attempts at both national and European levels to provide greater protection for breastfeeding mothers in the workplace but momentum appears to have stalled. A private member’s bill was unsuccessfully proposed to Parliament during 2005/6. In addition, in June this year, the European Commission announced that it was not proceeeding with proposals for providing an entitlement to daily breastfeeding breaks and that breastfeeding mothers should not be required to work overtime or night shifts.
With issues surrounding breastfeeding in the workplace increasingly in the news, I wouldn’t be surprised to see the issue back on the legislative agenda. It strikes me that there is a surprising gap in employee protection for something which affects so many employees.