Failure to provide adequate breastfeeding facilities was gender-related harassment

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An employment tribunal has ruled that a woman suffered gender harassment when her employer failed to provide her with a private room to express her milk while she was at work. The employee was forced to express her milk in the toilet or in her car, which had the effect of creating an undesirable, degrading or humiliating environment for her.

What happened in this case?

Ms Mellor was a teacher at the MFG Academies Trust. While pregnant, she told school that when she returned to work from maternity leave, she would need a place to pump her milk. She raised this issue again during her maternity leave and again when she returned to work in September 2020. However, the school did not provide her with a suitable room.

This meant that she was forced to express her milk in the school bathroom or in her car during her lunch break. She was given 25 minutes for lunch, of which 20 minutes were needed to express milk, meaning she was forced to eat her lunch at the same time.

Having chosen to continue breastfeeding, it was a necessity for Ms Mellor to express, as failure to do so would cause her to suffer embarrassing leaks and she could develop mastitis (and had done so in the past).

Ms Mellor filed a complaint of direct and indirect discrimination and gender-related harassment against the school.

What has been decided?

Direct discrimination

Ms Mellor compared herself to the hypothetical comparator of a male teacher injecting himself with insulin. The school confirmed that it would have provided such a male teacher with an appropriate space if asked. Nevertheless, the Tribunal decided that this claim was dismissed because Ms. Mellor was unable to prove that the treatment she received was due to her gender. They found that the treatment was due to the school’s incompetence, rather than the fact that she was a woman.

Indirect discrimination

The Tribunal held that the school’s practice of not providing adequate facilities for expressing milk did not particularly disadvantage women over men because “biological men have no interest in having facilities for express breast milk.

Essentially, the Tribunal said it was bound by an earlier case, which held that indirect discrimination cannot be demonstrated without meaningfully applying the practice to both men and women. Therefore, since the need for a space to express breast milk was uniquely a female biological function, this claim had to fail.

Harassment

The Tribunal found that Ms. Mellor had no genuine and reasonable choice but to express her breast milk in the toilet or in her car. She also concluded that forcing her to express her milk while eating her lunch, and potentially being seen by students, was undesirable behavior and had the effect of creating a degrading or humiliating environment for her.

They also argued that it was related to Ms Mellor’s gender, as the need for privacy to express milk stemmed from the intimate nature of the activity, as she is female.

What does this mean for employers?

Although there is no statutory right to the provision of workplace facilities for expressing milk, the Health and Safety Executive recommends that employers provide facilities such as a private and clean environment (other than toilets) and a refrigerator to store expressed milk. Employers should pay particular attention to any request for space from a worker who expresses milk, as there is a risk of harassment depending on the particular circumstances.

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