In the recent case of Gibbons v Vale University Local Health Board, the tribunal was asked to rule whether the hospital employer had done enough to facilitate the employee to breastfeed. The tribunal upheld her complaint of harassment.
G worked as a support worker in a hospital. While on maternity leave, she spoke to her manager to discuss her return. As she was breastfeeding, she asked for a lockable room. They agreed. But upon her return, the lock was not provided. Instead, she was told to use a chair to prevent the door from being opened and to place a ‘do not disturb’ sign. Unhappy at this situation, and the fact that there was no risk assessment, G went home early. The risk assessment was eventually done, it concluded that a suitable lockable room was not available, it was recommended she use an office without a lock, to place a ‘do not disturb’ sign ad that staff to be informed about G’s needs. She followed this advice but it turned out the office was not private, and members of staff often walked in whilst she was expressing. 4 months later, a lock was eventually fitted at cost of £5.50.
G became pregnant again and had a further period of maternity leave. She informed the employer that upon her return she would need a lockable room three times per shift. Although a lockable room was provided, it was not always available. G raised a grievance claiming that a lack of private space affected a very intimate ad sensitive activity of expressing milk and affected the health of her baby. Although new arrangements were put in place, G brought several claims, alleging the failure to provide her with a lockable room and failure to draw up a breastfeeding risk assessment amounted to harassment on the grounds of her sex.
The tribunal upheld her complaint saying this was unwanted conduct that specifically related o G’s sex. “Breastfeeding is related to maternity and is an activity that biological women carry out”. They acknowledged that the employers conduct was not deliberate, but it had the impact of violating her dignity and humiliating her. A lock could have been fitted easily, cheaply and on the first day. It was important for breastfeeding mothers feel secure, comfortable and relaxed. The hospital repeated its mistake in the second pregnancy.
Duties Towards Breastfeeding Mothers
1. Provide a Suitable Environment
The Workplace (Health, Safety and Welfare Regulations 1992 stipulate that employers must provide suitable area for eating and resting. However, there is no specific legislation requiring the provision for facilities for breastfeeding or expressing milk. Similarly, there is no statutory right to for a woman to take time off for breastfeeding or to express milk. But, as this case highlights, failure to do so may lead to sex discrimination claims.
The Health and Safety Executive has guidance notes and state that employers must provide “suitable facilities”, which are safe, secure, hygienic, where mothers can lie down and suitable storage for the milk. Toilets are not suitable.
They do not include a lockable room in their guidance notes, but each case has to be assessed on its own merit. A public hospital with thousands of staff and daily visitors requires more privacy than a small employer with no visitors.
It should be noted that mothers cannot be restricted on how long to breastfeed their baby. The NHS Guidelines state “you and your baby can carry on enjoying the benefits of breastfeeding for as long as you like… into the child’s second year and beyond, along with solid food is ideal”.
2. Conduct a Risk Assessment
The Management of Health and Safety at Work Regulations requires employers to draw up a risk assessment for pregnant and breastfeeding mothers. This should consider the work environment, working conditions, any physical, biological or chemical agents they may come into contact with, and which could pose a risk to the mother or child. This RA should be undertaken as soon as possible. If the risks cannot be controlled, the employer should offer a suitable alternative role (on the same terms and pay). If an alternative is not available and the identified risks prevail, employers can seek further medical advice, and if necessary, suspend the employee on health and safety grounds.
More information can be obtained from the HSE website. Employers are advised to call the HR Helpline to ensure they are not discriminatory ad remain compliant with the laws.
