Regulatory guidance on breastfeeding is disparate. The Breastfeeding etc Bill was introduced last year, and its second reading is scheduled for 2 October.
The Bill proposes to make preventing a parent or carer from feeding milk to a child under the age of two in public places or on licensed premises an offence, with an expected penalty of about 2,000. Meanwhile, chancellor Gordon Brown is supporting a campaign to outlaw the harassment of mothers who breastfeed in public. However, the Bill does not directly address employment rights.
Here is a typical scenario: a woman’s sales job requires her to drive around to visit customers in England and Wales, often entailing an overnight stay. She has written to her employer stating that she will continue breastfeeding her child when she returns to work after maternity leave. This confronts the employer with a number of issues – including where to turn for guidance.
Current legal protection
In England and Wales, there is no statutory duty for employers to permit time off work to breastfeed. However, a number of laws are relevant:
Health and safety law requires employers to:
- provide a place for breastfeeding mothers to lie down and rest
- permit adequate rest and meal breaks
- conduct individual risk assessments and remove risks such as exposure to hazardous substances, infectious diseases, long working hours, stress and cigarette smoke.
European Commission guidelines, which are not legally binding but are likely to be taken into account by an employment tribunal, recommend:
- access to a private room in which to breastfeed or express milk
- use of secure, clean refrigerators for storing expressed milk and facilities for washing, sterilising and storing receptacles
- time off (without loss of pay or benefits, and without fear of penalty) to express milk or breastfeed.
An EU Directive requires public sector employers to protect breastfeeding mothers by temporarily altering their hours of work or working conditions, or offering alternative work.
Employers also need to be aware of these areas:
- Flexible working – the right to request flexible working can be used to ask for a temporary change to working arrangements to assist with breastfeeding. Requests should be handled in accordance with the statutory framework.
- Sex discrimination – refusing to accommodate a breastfeeding mother (for example, by refusing a flexible working request without justification) may constitute indirect, and possibly direct, sex discrimination. These claims are costly for employers, and are likely to attract publicity. McDonald’s, the Royal Air Force, the JobCentre, the National Gallery, the police service and Hampton Court Palace have all attracted negative media attention for being ‘breastfeeding unfriendly’.
- Human Rights Act – Article 8 upholds the right to respect for private and family life (although at present this will only affect public authorities).
- Other jurisdictions, including Scotland, provide a higher level of legal protection to breastfeeding mothers, which may apply to staff who travel or are seconded outside England and Wales.
While the Bill does not specifically address breastfeeding in the workplace, parliament has heard that it is important to involve employers in promoting breastfeeding. If this Bill becomes law, employers will need to note that:
- Many public and licensed places double up as workplaces. Subject to further clarification, it would be an offence to prevent an employee from feeding a baby in those public areas.
- The Bill proposes that employers are vicariously liable for contraventions committed by employees. There is a defence for employers that take all reasonably practicable steps to prevent such offences, so employers will need to introduce and monitor a breastfeeding policy.
- Proper disciplinary procedures should be in place and adhered to when an employee acts in a way that contravenes the Act.
- Employees should be trained to deal with complaints from members of the public who object to the sight of others breastfeeding.
- Some employees may have objections on religious grounds to being in an environment where women are breastfeeding. In these instances, religious discrimination laws may apply.
Addressing the issues
There are benefits for employers who facilitate breastfeeding in the workplace. More women will be able to return to work after maternity leave; some will even feel able to return to work sooner. Studies show that parental absence is also lower among parents of breastfed babies, as these babies enjoy better health.
But what does this mean for the woman in our scenario?
The employer should invite her to discuss her requirements before she returns to work, and it may be simple to reach an agreement. It may help for her to submit a flexible working request, which should be dealt with in accordance with the normal statutory timeframe and permitted reasons for refusal.
A proper risk assessment must be undertaken. Her long working hours may present a risk to her health and that of her baby by interfering with breastfeeding. If so, this risk must be removed. This may entail adjusting working conditions or hours of work, giving suitable alternative work on the same terms and conditions or paid leave.
Solutions could include using rail or air travel for longer journeys, providing a car adaptor for her breast pump and a portable fridge, temporarily limiting the geographical area she covers, permitting later starts to her working day, or even arranging for the baby to accompany her on longer trips.
It is not lawful for an employer to suggest that the employee gives up breastfeeding earlier than she wishes, however long that may be, and telling her not to come back to work until she has finished breastfeeding would amount to sex discrimination.
If the Breastfeeding etc Bill comes into force in England and Wales, employers will have to navigate a new addition to the less than transparent laws of health and safety, flexible working and sex discrimination to accommodate breastfeeding mothers. Meanwhile, in Scotland, where it has been unlawful to prevent public breastfeeding since March, ministers are now considering laws to give women the right to take breastfeeding breaks at work, as is the case elsewhere in Europe. Clear legislation may therefore not be far away for England and Wales.
Essentials for a Breastfeeding policy
- A policy statement outlining the organisation’s support for combining work and breastfeeding.
- A description of the facilities provided and where these are located.
- Guidelines for the safe and hygienic use of facilities.
- An outline of the breaks permitted for expressing milk, resting or breastfeeding, and any administrative procedures .
- The name and/or job title of the individual within your organisation responsible for conducting individual risk assessments; making employees aware of the policy; to whom employees should notify in writing of their intention to breastfeed and to whom queries relating to the policy should be addressed.
- A suggestion that mothers discuss their specific requirements before their return to work, and who they should discuss this with.
- Guidance on dealing with visitors and members of the public who wish to breastfeed on the premises.
Anne-Marie Balfour is an employment solicitor at Speechly Bircham
Mothers demand breastfeeding law
Full text of the Breastfeeding etc Bill