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Lack of facilities for breastfeeding is discrimination

Posted On: [04/08/2022]

Forcing an employee to feed a baby in the toilets and car is sex discrimination

In the case of Mellor v The AFG Academies Trust , the Employment Tribunal has ruled that an employer’s failure to provide facilities for expressing breastmilk was sex harassment. There is no legal right to the provision of facilities for breastfeeding or expressing milk at work. Health and Safety Executive Guidance does, however, recommend that employers provide a private, clean environment other than toilets for expressing milk and a fridge for storing it. The Equality and Human Rights Commission's Employment Statutory Code of Practice also provides guidance around those breastfeeding at work and that employers have a duty under health and safety provisions to provide suitable workplace rest facilities for women at work, who are breastfeeding mothers, to use (see para 8.45)

In this case, Mrs Mellor was a teacher at the AFG Academies Trust. Whilst on maternity leave, she told the school that when she returned to work, she would need a room to express breastmilk for her baby. Mrs Mellor reminded the Trust and the HR team when she confirmed her return to work and again on her return from maternity leave.

Her request was not actioned and instead the Trust allowed Mrs Mellor’s partner to bring her baby into the school for her to breastfeed. Mrs Mellor asked for a room to feed the baby and again requested a room to express breastmilk.

When no room was provided, Mrs Mellor expressed milk in either the school toilets or her car. She had a 25-minute lunch break and expressing took 20 minutes, meaning she was forced to eat her lunch whilst expressing.

She sued the Trust for sex discrimination and sex harassment in the Employment Tribunal (ET). The ET upheld the sex harassment claim but dismissed the claims for direct and indirect discrimination.

On sex harassment, the ET said that Mrs Mellor had been forced to express breastmilk in the toilets or her car. Expressing in the car created the risk that she would be seen by pupils and others. The ET said this was unwanted conduct which had the effect of creating a degrading or humiliating environment for Mrs Mellor. The conduct was related to Mrs Mellor’s sex because the need for privacy from the intimate nature of the activity arose because she was a woman.

See sex discrimination