A new mother who is working for us has requested a change to her hours so she can breastfeed, but ours isn’t the kind of business where we can agree to flexible hours for breastfeeding. Could we be accused of sexual discrimination if we say no?
Employers have a duty to consider any request by a mother to change her working arrangements to enable her to care for a child under six years old. This could include altering her hours so that she can get home earlier for breastfeeding purposes.
You do not have to agree to the request, but if you refuse, you may only do so on certain business grounds. You must also explain to the employee why those grounds apply. Examples of such grounds that may apply in your case might be ‘detrimental effect on ability to meet customer demand’, or ‘inability to reorganise work among existing staff’. Provided that your explanation is sufficient and you followed the correct procedure in considering the request, the employee would find it very difficult to challenge your refusal.
Nevertheless, your refusal could put you at risk of a complaint of indirect sex discrimination. Even if you insist that both male and female staff work the same hours, a woman might be less likely to comply with this requirement, due to her childcare responsibilities. So if she complained that she could not comply, this would be indirect sex discrimination if you could not justify the requirement on objective business grounds.
This is a much higher test than for a flexible working request, and you would be required to demonstrate that you had genuinely looked into the need for the requirement to work regular hours, considered alternatives, and that you could balance the discriminatory effect of the requirement against your business needs.
You also need to be aware that breastfeeding mothers have certain other rights at work under health and safety law. All employers should carry out a risk assessment in relation to mothers who plan to continue breastfeeding after they return from their maternity leave. The Health and Safety Executive also recommends that employers provide breastfeeding mothers with suitable rest periods, access to a comfortable private room to express milk, and somewhere to store their milk and expressing equipment.
Justin Beevor, employment law partner, Mace & Jones