Breastfeeding Rights | Cleaver Fulton Rankin

What issues arise for breastfeeding mothers on a return to work?

Breastfeeding mothers will usually have a number of factors to consider when they return to work after maternity leave; these typically include:

Need for breaks to facilitate feeding/pumping
Space to express/proper facilities to store expressed milk
Adjustments to duties
Adjustments to hours e. later start time/earlier finish time to accommodate feeding schedule

Where is the law currently on the issue?

The Sex Discrimination (NI) Order 1976 does not make any reference to breastfeeding nor does it provide any specific and distinct rights in relation to it. However this legislation does protect women from discrimination directly and indirectly (where any policy, provision or practice disadvantages more women than men and cannot be justified. The legislation also protects women from any form of sexual harassment such as inappropriate comments around breastfeeding or pumping.

Regulation 16 of the Management of Health and Safety at Work Regulations (NI) 2000 also provides that employers in certain circumstances should conduct a risk assessment for breastfeeding mothers and provide alternative work or paid suspension in certain circumstances where risks cannot be avoided, such as exposure to dangerous agents.

In terms of seeking variations to facilitate breastfeeding or pumping, the ability to make an application for variation under Article 112F of the Employment Rights (Northern Ireland) Order 1996 that can be used. This legislations gives employees the ability to apply for changes to hours, times and location (for example a request to work from home), so long as they have not made any application under the Article in the last 12 months. The request must fulfill the criteria as set out in the Article by stating it is an application under that legislation, outlining the request for change and outlining how it may affect the employer and ways they could deal with that.

The Employer can only refuse a request for certain business reasons set out in the legislation which Article 112G states are:

(i) the burden of additional costs,

(ii) detrimental effect on ability to meet customer demand,

(iii) inability to re-organise work among existing staff,

(iv) inability to recruit additional staff,

(v) detrimental impact on quality,

(vi) detrimental impact on performance,

(vii) insufficiency of work during the periods the employee proposes to work,

(viii) planned structural changes, and

(ix) such other grounds as the Department may specify by regulations.

An employee has the right to appeal a refusal and failure to facilitate a request may constitute a breach of the legislation or even indirect sex discrimination under the Sex Discrimination (NI) Order 1976.

Have there been cases and what have the outcomes been?

There does not appear to be any recent written decisions regarding discrimination and breastfeeding issues in Northern Ireland. There may be a number of reasons for this. There are however historic cases, the most significant one being Webster v Autometrics Systems Ltd [2007] NIIT 58_07 (22 October 2007). In this case the claimant claimed that she was discriminated against on the grounds of her sex by the imposition by the respondent of the condition that she be available to attend the office (on her home working days) within at least 16 hours’ notice. She contended that she has been indirectly discriminated against on the grounds of her sex by the stipulation by the respondent that she not carry out any software development during those periods of time when she was working at home.

In this case, the claimant’s request to work from home was to facilitate the breastfeeding of her child. The claimant stated that her home working would have been facilitated by the presence at home of a nanny but that she would have continued to breastfeed her child on demand. The claimant also stated that her working from home would have reduced her travel to work time and permitted her to spend more time with her child than if she were travelling to and from work. On an early application by the respondent to strike the case out, the Tribunal did not agree with the respondent that there was sufficient evidence of no indirect discrimination and stated that, “it is logical therefore that any disadvantage flowing from a restriction imposed by an employer on home workers is more likely to have a disproportionate impact on women than on men.” There does not appear to be a record of a subsequent full decision in the case.

What has happened in breastfeeding cases in GB?

There have been a few cases in GB, outlined below:

Squillaci v WS Atkins (Services) Ltd: Ms S was advised by her GP to breastfeed for at least 12 months because there was a strong history of eczema in her family. She returned to work when her baby was six months old and asked to work part time for six months in order to continue breastfeeding around her working hours. The employer refused, but she won her case for indirect sex discrimination at an employment tribunal.

McFarlane & Ambacher –v- Easyjet [2016]: Easyjet’s roster practices were held to be indirectly discriminatory towards breastfeeding mothers.

Mellor –v- MFG Academies Trust [2022]: A teacher forced to express breast milk in “dirty” toilets was found to be the victim of harassment.

What can I do as an Employer?

There are a number of steps that Employers can take in order to ensure that their workplace policies and environment does not discriminate against breastfeeding mothers. These include:

Identifying and remove risks to breastfeeding mothers in the workplace
Providing adequate facilities
Implementing a breastfeeding policy
Providing training to managers or your HR function
Taking good quality legal advice

What can I do as a breastfeeding mother returning to work?

Breastfeeding mothers may want to consider the following measures if they have concerns about returning to work whilst breastfeeding:

Have a discussion with your employer about this in advance
Should an issue arise, seek advice from a specialised employment solicitor at an early stage
Be aware that the Equality Commission NI has a helpline and may be able to provide financial support/assistance to you

Other Issues

Many other issues can arise on a return from parental leave including maternity leave. These can include calculation of accrued annual leave, pay, changes to role, dismissal (including proposed redundancy), inappropriate comments, pressure to return, mental health issues and pay calculation.

It is important that employees and employers take very prompt legal advice on these issues as this is a complex area of law and can result in significant claims. Time is very much of the essence given the time limit for most claims is only 3 months from the date of the incident.

This article was co-authored by Emma McIlveen, Barrister at Law, and Suzanne Keenan, Employment Director at Cleaver Fulton Rankin.

If you would like further information or advice on any of the issues raised in this article, please contact our Employment Team.

THE CONTENTS OF THIS ARTICLE SHOULD NOT BE CONSIDERED LEGAL ADVICE. THE PURPOSE OF THE ARTICLE IS FOR INFORMATION PURPOSES ONLY.

BARRISTERS IN NORTHERN IRELAND CANNOT ACCEPT INSTRUCTIONS DIRECTLY FROM CLIENTS. IF YOU REQUIRE ADVICE ON A PARTICULAR SITUATION, YOU SHOULD SEEK ADVICE FROM A SOLICITOR WHO SPECIALISES IN EMPLOYMENT LAW.