A healthcare support worker was discriminated against by an NHS board on the basis of sex, after it failed to provide a private area for the worker to express breast milk, a tribunal has ruled.
The reserved judgment by the judge found that Cardiff and Vale University Local Health Board had failed to provide adequate facilities for the worker, Ms Gibbins, who told the tribunal that she was not given a room with a door that locked when she came back to work following maternity leave in August 2021. The lock would have cost £5.50.
Other aspects of her claim around maternity discrimination and further examples of sex discrimination were dismissed.
On one occasion, a male colleague entered the room while Ms Gibbins was expressing. Her employer suggested that she prop a chair against a door to lock it, she claimed.
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Ms Gibbins was involved in discussions over a pregnancy-related risk assessment missed by her employer, amended nursing duties and grievances over absence pay.
The claimant was absent from work with ill health in October 2021. At a long-term sickness meeting in November she agreed to return full time and she was told a lock had been fitted to the office she had been allocated for expressing. However, a fresh pregnancy meant she didn’t return to work until early December. She then endured a bout of Covid, returning to work in early January 2022.
When Gibbins submitted a grievance about her treatment, she was told that “things would be different” after her second pregnancy.
However, the tribunal heard that in 2023, when she returned to work, there was only one room with a lock available at certain times. Gibbins needed to express three times a day to maintain her comfort. She felt this could expose her to infectious diseases and contaminating her milk.
She also said she felt like a “burden”, and claimed she was not given anywhere to sterilise her equipment.
Gibbins had been through grievances relating to incorrect payslips, pregnancy risk assessments and amended hours but essentially the case hinged on the provision of a room. The judge ruled: “We have found that by the time of the Claimant’s return to work on 6 August 2021 the Respondent had failed to put in place what had been agreed for Claimant’s return as a breastfeeding mother, being a lockable room where the Claimant could express in privacy. We have found that the Claimant understood and expected that a lockable room was going to be provided ready for her return.”
The court did not find that the missed pregnancy risk assessment constituted unfair treatment.
Judge Harfield found that the failure to provide an internally lockable room was unwanted conduct related to sex, on the basis that “breastfeeding is related to maternity and is an activity that that biological women carry out. The claimant wanted privacy due to the intimate nature of the activity she was carrying out as a woman; it was related to sex”.
However, the employer’s failure to provide a room was not done with the purpose of violating Ms Gibbins’ dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for her. On this basis, the claimants’ complaints of harassment related to sex, direct sex discrimination, pregnancy and maternity discrimination, and indirect sex discrimination were dismissed.
The tribunal heard that the health board’s witnesses pointed out that they did not expect staff would walk in on the claimant when the “do not disturb” sign was in place, and had no expectation that other staff would enter the ward manager’s office being used by Ms Gibbins at nighttime.
The judge noted that the hook lock that was ultimately fitted cost £5.50. Evidence revealed that the estates department considered the fitting of the lock to be non-emergency maintenance and that estates were short staffed due to Covid.
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